COMMONWEALTH OF COMPENDIUM OF LAW

Prepared by John F.X. Lawler William F. Burke Adler Pollock & Sheehan, P.C. 175 Federal Street , MA 02110 617-482-0600

Updated 2012 PRE-SUIT AND INITIAL CONSIDERATIONS

Pre-Suit Notice Requirements/Prerequisites to Suit

Indicated below are situations where a plaintiff must ordinarily give notice or a written presentment of a claim to the defendant within a certain timeframe as a suit precondition. The referenced statutes indicate the proper party to whom notice must be given.

A) Automobile insurance claims. Notice to both the police and the insurer within twenty four hours of the accident is required pursuant to most Massachusetts motor vehicle policies. Failure to comply may result in uninsurance benefits being barred. Harm to the insurer due to lateness of the notice is not required in order for the insurer to disclaim coverage. See Royal-Globe Ins. Co. v. Craven, 411 Mass. 629 (1992). Standard policies require "prompt notice" be given to the insurer for most other claims, including underinsured motorist coverage claims. In an underinsured motorist claim situation, "an insurer must prove that it was prejudiced by an insured delay in notifying it" if the insurer seeks to disclaim coverage for late notice. See Goodman v. Am. Cas. Co., 419 Mass. 138, 141 (1994).

B) Consumer Protection Act. "At least thirty days prior to the filing of [an action by a consumer under this Act], a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered to any prospective respondent.” MASS. GEN. LAWS ch. 93A, § 9 (2009). "An adequate demand letter will define the injury suffered and the relief demanded in a manner that provides the prospective defendant with an opportunity to review the facts and the law involved to see if the requested relief should be granted or denied and enables him to make a reasonable tender of .” Simas v. House of Cabinets, 53 Mass. App. Ct. 131, 139 (2001). The consumer must send the demand letter to the defendant and allow thirty (30) days for response, unless the claim is asserted by way of counterclaim or cross-claim, or if the prospective defendant does not keep assets in the Commonwealth. See Crosby Yacht Yard, Inc. v. Yacht “Chardonnay”, 159 F.R.D. 1, 3 (D. Mass. 1994).

C) Legal insurance coverage. Most insurance policies require prompt written notice be given by the attorney to his insurance carrier once anyone insured under the policy becomes aware of the claim. It should be noted that an insurer can disclaim coverage for late notice without having to prove it was harmed by the delay because such policies are made on a "claims made" basis, as opposed to an "occurrence" basis. See Chas T. Main, Inc. v. Fireman's Fund Ins. Co., 406 Mass. 862, 865-66 (1990).

D) Massachusetts Claims Act. Written presentment of a claim must be made within two years time of tort. See MASS. GEN. LAWS ch. 258, § 4 (2009). The purpose of the presentment requirement is to "ensure that the responsible public official receives notice of the claim so that that official can investigate to determine whether or not a claim is valid, preclude payment of inflated or non-meritorious claims, settle

1 valid claims expeditiously, and take steps to ensure that similar claims will not be brought in the future." Rodriguez v. Cambridge Housing Auth., 59 Mass. App. Ct. 127, 134 (2003) (internal citations omitted). Due to the fact the Federal Tort Claims Act and Massachusetts Tort Claims Act provide immunity for the individual government employees involved in a tort, there is the possibility that the notice period will expire before the plaintiff is able to determine that an apparent tortfeasor was actually acting as a government employee. The problematic result would then be that the suit against the employee may be barred by immunity and suit against the government may be barred by lateness of notice. See, e.g., Krasnow v. Allen, 29 Mass. App. Ct. 562, 570 (1990). E) Defective public way. Notice is required to be given in thirty (30) days. See MASS. GEN. LAWS ch. 84, §§ 15, 18 (2009); see also ch. 81, § 18 (for state highways). F) Snow or ice on a public way or private property. Notice must be given in thirty (30) days. See MASS. GEN. LAWS ch. 84, §§ 17, 18, 21 (2009). Defendants should note that failure to give such notice shall not be a defense unless the defendant proves prejudice. MASS. GEN. LAWS ch. 84, §§ 18, 21.

G) Ski area operator's . Written notice is required within ninety (90) days. See MASS. GEN. LAWS ch. 143, § 71P (2009). Furthermore, "[a]n action to recover for such injury shall be brought within one year of the date of such injury." Id.

H) UCC - Uniform Commercial Code breach of warranty claims (including ). Notice should be given within a reasonable time after the defect has been or should have been discovered. MASS. GEN. LAWS ch. 106, § 2-607(3)(a) (2009). "Failure to give notice shall not bar recovery . . . unless the defendant proves he was prejudiced thereby." MASS. GEN. LAWS ch. 106, § 2-318.

Relationship to the Federal Rules of Civil Procedure

The Massachusetts Rules of Civil procedure, adopted in 1974, were patterned on the Federal Rules of Civil Procedure. Van Christo Adver. v. M/A-COM/LCS, 426 Mass. 410, 414 (1998). In construing the Massachusetts Rules, the Supreme Judicial Court follows the construction given to the Federal Rules "absent compelling reasons to the contrary or significant differences in content." Id. (citing Rollins Envtl. Servs. v. Superior Court, 368 Mass. 174, 179-180 (1975)). The Massachusetts Rules are not statutory, but were promulgated under statutory authority and in close cooperation with the Legislature. See General Elec. Co. v. Dept. of Envtl. Protection, 429 Mass. 798, 806 (1999). Several portions of the Massachusetts Rules closely track the Federal Rules of Civil Procedure. See Van Christo Adver., 426 Mass. at 414 (construing Massachusetts rule 11 (a) pursuant to the construction given to the federal rule); Casavant v. Norwegian Cruise Line, Ltd., 63 Mass. App. Ct. 785, 790 (2005) (finding motion practice under the Massachusetts Rules of Civil Procedure tracks the federal rules); Frizzell v. Wes Pine Millwork, Inc., 4 Mass. App. Ct. 710, 712 (1976) (finding MASS. R. CIV. P. 32(a) tracks the Fed. R. Civ. P. 32(a)).

2 Description of the Organization of the State Court System

A) Judicial appointments. In Massachusetts, Judges are appointed and not elected. "Under [the Massachusetts] Constitution, the Governor has the exclusive power to nominate and appoint "all judicial officers." Lambert v. Exec. Dir. of the Judicial Nominating Council, 425 Mass. 406 (1997) (citing MA CONST. pt II, ch. 2, § 1, art. 9).

B) Structure. The Massachusetts court system consists of three court tiers: The Supreme Judicial Court, the Appeals Court, and the Trial Court.

1) Supreme Judicial Court. The Massachusetts Court System website states:

The Supreme Judicial Court is the highest court of the Commonwealth. It has general powers of superintendence over all other courts. It sits primarily as an appellate court, and hears all appeals in first degree murder cases and appeals which have been transferred to it from the Appeals Court. It is also a court of original jurisdiction in certain cases. It oversees the Massachusetts bar, through the Board of Bar Examiners, the Board of Bar Overseers, the Office of Bar Counsel, and the Clients' Security Board.

Administrative Office of the Trial Court, Commonwealth of Massachusetts, The Massachusetts Court System: Overview of the Judicial Structure, available at http://www.mass.gov/courts/courtsandjudges/courts/overviewofjudicialstructure.h tml (last visited April 6, 2012).

2) Appeals Court. The Appeals Court has jurisdiction over most cases that are appealed from the various Departments of the Trial Court. It also considers appeals from a few State agencies. It is headquartered in Boston and serves all of Massachusetts. Id.

3) Trial Court. The Trial Court has seven departments. They include: the Boston Municipal Court Department, the District Court Department, the Housing Court Department, Juvenile Court Department, Land Court Department, Probate and Family Court Department, and the Superior Court Department. The District Court Department of the Trial Court has its own Appellate Division of the District Court. See id.

C) Mandatory Alternative Dispute Resolution. Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution requires that all clients be informed of alternative dispute resolution. S.J.C. Rule 1:18 (2008). The rule indicates that [c]lerks shall make information about court-connected dispute resolution services available to attorneys and unrepresented parties. This information should state that selection of court-connected dispute resolution services can occur at the early intervention event or sooner, and that no court may compel parties to mediate any

3 aspect of an abuse prevention proceeding under G.L. c. 209A, § 3 . . . . Attorneys shall: provide their clients with this information about court-connected dispute resolution services; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution; and certify their compliance with this requirement on the civil cover sheet or its equivalent.

SUP. JUD. CT. R. 1:18, § 5 (2008).

Service of Summons

MASS. R. CIV. P. 4 (2010) indicates the manner in which service of the summons and complaint is made within Massachusetts:

A) Individuals. An individual may be served by delivery to the defendant personally, leaving the papers at the defendant's last and usual place of abode, delivery to the defendant's agent. If the case is in District Court and service is made by leaving papers at the defendant's last and usual place of abode, a copy must also be mailed to the defendant. MASS. GEN. LAWS ch. 223, § 31 (2009).

B) Corporations. A corporation can be served by delivery to a corporate officer, a managing or general agent, or the person in charge at the corporation's principal place of business. If this cannot be achieved, the court can order service of the corporation by delivery of notice to the secretary of the commonwealth, who then forwards it by registered mail to the corporation. See MASS. GEN. LAWS ch. 223, §§ 37, 38 (2009). C) Partnership. Generally, a partnership may be deemed served by serving each of the partners individually. See Shapira v. Budish, 275 Mass. 120, 126 (1931).

D) Commonwealth. The Commonwealth or a state agency may be served by delivery or registered mail to the treasurer or clerk of its office. MASS. R. CIV. P. 4.

Statute of Limitations

A) Six years. There is a six-year for actions on judgments rendered by foreign courts and actions on , except as indicated below. See MASS. GEN. LAWS ch. 260, § 2 (2009).

B) Three years. There is a three-year statute of limitations for actions in to recover for personal injury, actions for breach of warranty, claims against the Commonwealth, and actions to recover the value of property taken by eminent domain. See MASS. GEN. LAWS ch. 260, § 2A (2009); ch. 106, § 2-318; ch. 258, § 4; ch. 79, § 16. There is also a three- year statute of limitations for a cause of action based upon negligent, intentional, or tortious conduct for personal injury, death, or property damage. See ch. 260, §§ 2A, 4.

C) Four years. There is a four-year statute of limitations for actions for breach of contract for sale under Article 2 of the U.C.C. and actions under the Massachusetts 4 Consumer Protection Act. See MASS. GEN. LAWS ch. 106, § 2-725 (2009); ch. 93A; ch. 260, § 5A; see also Lambert v. Fleet Nat '1 Bank, 449 Mass. 119, 126 (2007) (indicating a four year statute of limitations applies to MASS. GEN. LAWS ch. 93A claims).

D) Two years. There is a two-year statute of limitations for actions against trustees on their contracts and actions for deficiency judgment after real property mortgage foreclosure. See MASS. GEN. LAWS ch. 260, § 11 (2009); ch. 244, § 17A.

E) Twenty years. There is a twenty-year statute of limitations for actions on contracts under seal, actions on notes issued by banks, and actions for the recovery of real property. See MASS. GEN. LAWS ch. 260, §§ 1, 21 (2009). "A judgment or decree of a court of record of the or of any state thereof shall be presumed to be paid and satisfied at the expiration of twenty years after it was rendered." MASS. GEN. LAWS ch. 260, § 20.

F) Thirty-five years. There is a thirty-five year statute of limitations for foreclosure of mortgages. See MASS. GEN. LAWS ch. 260, § 33 (2009).

G) Contribution. An action for contribution from a joint tortfeasor must be brought within one year of date of judgment or settlement. See MASS. GEN. LAWS ch. 231B, § 3 (2009); see also Med. Prof’l Mut. Ins. Co. v. Breon Labs., Inc., 428 Mass. 818 (1999).

H) Employment discrimination. Actions for employment discrimination must be brought within six months.

Complaints with the MCAD must be filed within six months after the alleged act of discrimination. In the absence of a timely complaint to the MCAD, there may be no resort to the courts . . . . The limitation runs from the time of occurrence of the act of discrimination. The Legislature opted for a short statute of limitations in discrimination cases, and we may not undo that design by injecting an awareness criterion. An action of discrimination may not necessarily, on a subjective basis, be obvious when it happens, but it is not inherently unknowable. Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 430 (1987) (internal citations omitted). A civil action must be filed within three years after the unlawful act occurred when resort to the courts is made after the MCAD procedure has been followed. See MASS. GEN. LAWS ch., 151B, § 9 (2009).

I) . There is a six year statute of limitations for fraud actions, measured from the discovery of the fraud. See Coffing v. Dodge, 167 Mass. 231, 234 (1897).

J) Indemnity. The standard six-year contract statute of limitations will apply when indemnity is sought pursuant to an express or implied contract. See Games v. Pan Am. Assocs., 406 Mass. 647, 648 (1990). When there is an express agreement of indemnity in a contract, a claim for indemnity accrues when there is a breach of that

5 provision. Fall River Hous. Auth. v. H. V. Collins Co., 414 Mass. 10, 13 (1992). The statute of limitations of the underlying tort for tort-based indemnity actions will, in most cases, be the same as the statute of limitations for the underlying tort, as there cannot be an obligation to indemnify without liability for the underlying tort.

K) Wrongful death. "An action to recover [for wrongful death] shall be commenced within three years from the date of death, or within three years from the date when the deceased's executor or administrator knew, or in the exercise of reasonable diligence, should have known of the factual basis for a cause of action . . . ." MASS. GEN. LAWS ch. 229, § 2 (2009). There is also wrongful death exception to some special statutes of limitations that provide for a shortened period within which to bring certain claims, unless they expressly so state. See, e.g., Grass v. Catamount Dev. Corp., 390 Mass. 551 (1993) (A one-year statute of limitations for injury claims against ski area operators did not apply to a wrongful death claim against ski area operators because "injury" for purposes of the statute did not include death.); Gallant v. Worcester, 383 Mass. 707 (1981) (In a wrongful death action the limitation for recovery for injury due to defect in way found in MASS. GEN. LAWS ch. 84, § 18 (2009), does not apply).

L) Tolling of statute of limitations.

1) Tolling for death. Suit may be brought by or against the decedent's executor or administrator in compliance with MASS. GEN. LAWS ch. 197 when a potential plaintiff or defendant dies during the statutory period, or within thirty (30) days thereafter, and the cause of action survives. See MASS. GEN. LAWS ch. 260, § 10 (2009). 2) Tolling for fraud. "If a person liable to a personal action fraudulently conceals the cause of such action from the knowledge of the person entitled to bring it, the period prior to the discovery of his cause of action by the person so entitled shall be excluded in determining the time limited for the commencement of the action." MASS. GEN. LAWS ch. 260, § 12 (2009); see also Stolzoff v. Waste Sys’s. Int'l, Inc., 58 Mass. App. Ct. 747, 755-58 (2003). 3) Tolling for minority or mental illness. "If the [plaintiff] . . . is a minor, or is incapacitated by reason of mental illness when a right to bring an action first accrues, the action may be commenced within the [statutory limitation period] after the disability is removed." MASS. GEN. LAWS ch. 260, § 7 (2009); see Lareau v. Page, 840 F. Supp. 920 (D. Mass. 1998) (the statute of limitations period on a child's claim tolled until age of majority); Howe v. Johnston, 39 Mass. App. Ct. 651 (1996) (applying MASS. GEN. LAWS ch. 260, § 7 protection to mentally ill plaintiff.) But an exception to this tolling occurs in limited circumstances in medical malpractice claims. See MASS. GEN. LAWS ch. 231, § 60D (2009); see also Plummer v. Gillieson, 44 Mass. App. Ct. 578 (1998). 4) Tolling for nonresidence. MASS. GEN. LAWS ch. 260, § 9 states: If, when a cause of action ... accrues against a person, he resides out of the commonwealth, the action may be commenced within the [statutory limitation period] after he comes into the commonwealth; and if, after a cause of action has

6 accrued, the person against whom it has accrued resides out of the commonwealth, the time of such residence shall be excluded in determining the time limited for the commencement of the action; but no action shall be brought by any person upon a cause of action which was barred by the laws of any state or country while he resided therein. See Xuncax v. Gramajo, 886 F. Supp 162, 192 (D. Mass. 1995). But the limitations period is not tolled where a defendant is subject to service under the "long arm statute" or through a statutory agent. See MASS. GEN. LAWS ch. 223A, § 1 (2009), et seq.; see also Fedder v. McClennen, 959 F. Supp. 28, 32-33 (D. Mass. 1996).

5) Tolling for Medical Monitoring. The statute of limitations on claims for future expenses of medical monitoring is triggered by (1) a physiological change resulting in a substantial increase in the risk of cancer and (2) that increase, under the standard of care, triggers the need for available diagnostic testing that has been accepted in the medical community. See Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 229 (2009). In Donovan, the plaintiffs were a putative class of Massachusetts residents over fifty (50) years of age (with at least a twenty year history of smoking Marlboro cigarettes) and without lung cancer. They sought to have defendant pay for medical monitoring since they had a higher risk of developing lung cancer. Id. at 216-17. Court held that the plaintiffs had stated a claim and were not barred by statute of limitations. Id. at 221.

Statute of Repose

MASS. GEN. LAWS ch. 260, § 2B (2009) states that:

Action of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property, other than that of a public agency as defined in section thirty-nine A of chapter seven shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions be commenced more than six years after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner. Actions of tort for damages arising out of any deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property of a public agency, as defined in said section thirty-nine A shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall actions be commenced more than six years after the earlier of the dates of: (1) official acceptance of the project by the public agency; (2) the opening of the real property to public use; (3) the acceptance by the contractor of a final estimate prepared by the public agency pursuant to chapter thirty, section thirty- nine G; or (4) substantial completion of the work and the taking possession for occupancy by the awarding authority.

7

Home Inspectors. MASS. GEN. LAWS ch. 112, § 225 is not tolled or extended by a party’s lack of knowledge of an injury and imposes an absolute bar after three years from the date of the report. See LaFranchise v. Fontaine, 25 Mass. L. Rptr. 55 (Mass. Super. 2008). Venue Rules

The geographic organization of the Massachusetts judicial system is the foundation of Massachusetts venue rules. Therefore, the important criteria for Superior, Probate, and Land Court are counties. Judicial districts, which are subdivisions of counties, are the important criteria for the District Courts.

A) actions. Replevin actions, where the plaintiff seeks redelivery of personal property, must be brought in the county where the property is located. See MASS. GEN. LAWS ch. 223, § 4 (2009).

B) Transitory actions. Transitory actions, or those which are not local property actions, such as tort and contract actions for example, may be filed in the county or the judicial district for the district court where either party resides or has a usual place of business. See MASS. GEN. LAWS ch. 223, § 1 (2009).

C) Actions by or against a corporation. MASS. GEN. LAWS ch. 223, § 8 (2009) states:

Transitory actions . . . to which a corporation, other than a county or the city of Boston, is a party, may be brought as follows:

(1) If both parties are cities, towns or parishes, in the county where either party is situated.

(2) If both parties are corporations, other than a city, town or parish, in any county in which either corporation has a usual place of business, or in which it held its last annual meeting, or usually holds its meetings.

(3) If one party is a city, town or parish, and the other a corporation named in clause (2), in any county in which either party might sue or be sued.

(4) If one party is a corporation named in clause (1) or (2), and the other an individual, in any county in which the corporation might sue or be sued, or in the county in which the individual lives or has a usual place of business.

D) Another option in District Court. A District Court action may also be filed in a judicial district that adjoins the judicial district in which either party resides or has a usual place of business. See MASS. GEN. LAWS ch. 223, § 2 (2009).

E) Trustee process actions. MASS. GEN. LAWS ch. 246, § 2 (2009) states:

If, in an action in the supreme judicial or superior court in which trustee process is used, all the persons named in the summons as trustees dwell or

8 have usual places of business in one county, the action shall be brought in that county; otherwise it may be brought in any county where any one of the trustees dwells or has a usual place of business.

In District Court, however,

if in connection with the commencement of such an action the approval of trustee process is sought, that action shall be brought in a court in the judicial district where one of the parties or any person alleged to be trustee lives or has a usual place of business, or in a court the judicial district of which adjoins the judicial district where one of the parties or one of the alleged trustees lives or has a usual place of business; provided, however, that an action may be brought in the municipal court of the city of Boston as provided in section fifty-four of chapter two hundred and eighteen. Id.

F) Forum non conveniens. Gianocostas v. Interface-Group Mass., Inc., 450 Mass. 715, 723 (2008) states: Assuming jurisdiction and venue are proper, dismissal on the ground of forum non conveniens will rarely be granted. On motion, however, a judge may decline to hear a case, if there is an alternative forum in which justice may be had, and if the balance of private and public concerns strongly favors the defendant's motion. In general terms, the doctrine of forum non conveniens provides that, where in a broad sense the ends of justice strongly indicate that the controversy may be more suitably tried elsewhere, then jurisdiction should be declined and the parties relegated to relief to be sought in another forum. The principle is the same under the statutory formulation. Decisions to grant or deny motions to dismiss on the ground of forum non conveniens are left to the discretion of the trial judge, and abuse of a judge's exercise of discretion on this matter will not usually be found.

Motion to Dismiss Standard

Massachusetts has adopted the federal standard articulated in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) for 12(b)(6) motions in reviewing the adequacy of a complaint. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Quoting Twombly, this court held that, “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact) . . . . What is required at the pleading stage are factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief, in order to reflect[ ] the threshold requirement of [Fed. R. Civ. P.] 8(a)(2) . . . .” Id. (internal citations omitted).

NEGLIGENCE

Contributory Negligence

9 In 1971, the Massachusetts legislature abolished as a defense in all actions seeking recovery for wrongful death, personal injury, or injury to property. See MASS. GEN. LAWS ch. 231, § 85 (2009).

Comparative Negligence

Massachusetts is a modified comparative fault jurisdiction. The plaintiff may recover if his negligence was not as great as the negligence of the person "against whom recovery is sought." MASS. GEN. LAWS ch. 231, § 85 (2009). The plaintiff's award for damages, however, will be reduced by their percentage of fault. Any negligence attributed to the plaintiff must be causally related to the damages alleged by the plaintiff. Id. In 1974, Massachusetts amended the 1971 revisions to the statute prescribing comparative fault rules. The 1974 amendments stated that a plaintiff may recover damages as long as their percentage of fault does not exceed 50%. Thus, if the plaintiff is found to have been 51% negligent or more, they are not entitled to recover damages. See id.

A) Burden. does not need to be pleaded affirmatively. The 1974 amendment to MASS. GEN. LAWS ch. 231, § 85 (2009) places the burden of alleging and proving comparative negligence on the defendant(s). The plaintiff is presumed to have been acting with due care and thus, it is for the defendants to prove otherwise. Id.

B) Standard of review. The judge may order a new trial if the judge finds that the allocation of fault assigned by the jury is against the weight of the . The judge may order a new trial on just the liability question, which would preserve the jury's damages award, or he may order an entirely new trial. See Rolanti v. Bos. Edison Corp., 33 Mass. App. Ct. 516 (1992).

C) Applicability. The plaintiff’s causal negligence will not bar recovery under the 1974 Act if the defendant's conduct is willful, wanton or reckless, or if the defendant's activity comes within the borders of . This is so because the 1974 Act recognizes comparative negligence only in actions "to recover damages for negligence." MASS. GEN. LAWS ch. 231, § 85 (2009). Pursuant to the 1974 revisions, actions for property damage, wrongful death and personal injury all fall within the ambit of comparative negligence. Breach of warranty actions do not. See Colter v. Barber-Greene Co., 403 Mass. 50 (1988); see also Scott v. Garfield, 545 Mass. 790, 795 (2009) (holding that a landlord’s breach of the implied warranty of habitability will prevent the reduction of a plaintiff’s award despite plaintiff’s comparative negligence).

D) Assumption of the risk. Pursuant to the 1974 Act, the defense of was abolished in all actions. See MASS. GEN. LAWS ch. 231, § 85 (2009).

Exclusive Remedy-Worker's Compensation When a person is injured due to an industrial accident, defined as an accident that arises out of one's employment, that person is entitled to redress pursuant to MASS. GEN. LAWS ch. 152, § 1 et seq. (2009), the Worker's Compensation Act.

10 A) Bringing a claim. The procedures for recovery of worker's compensation benefits are proscribed by the Department of Industrial Accidents, and thus filing civil suit for such recovery will be fruitless and improper. "A claim for benefits must be brought before the Department of Industrial Accidents and adjudicated through the statutorily prescribed workers' compensation system." HDH Corp. v. Atl. Charter Ins. Co., 425 Mass. 433, 437 (1997); see also Neff v. Comm’r of the Dep't of Indus. Accidents, 421 Mass. 70, 74 (1995).

B) Arising out of, or in the course of. "The determination whether an injury 'arose out of’ and 'in the course of’ employment is a question of fact to be decided by the [administrative judge] . . . ‘Arising out of’ refers to the causal origin . . . while 'in the course of’ refers mainly to the time, place, and circumstances of the injury in relation to the employment." Aetna Life & Cas. Ins. Co. v. Com., 50 Mass. App. Ct. 373, 376 (2000) (internal citations omitted).

C) Causal connection/peculiar risk. Aetna Life goes on to say:

Zerofski's Case stand[s] for the proposition that, if [the administrative judge] find[s] that no specific event or events caused the Employee's disability but rather that it was a condition of his employment, [he] must find that this particular work condition is unique and not common and necessary to a large number of occupations. To find otherwise would mean that the Employee's disability would be the result of ordinary 'wear and tear' and thus not compensable via worker's compensation benefits.

Id. at 377 (quoting Zerofski's Case, 385 Mass. 590, 594-95 (1982)).

D) Exclusivity. Common-law claims arising out of, or in the course of employment are barred by the exclusivity provisions of the workers' compensation act. MASS. GEN. LAWS ch. 152, § 24 (2009).

E) Release provision. If an employee accepts payment of compensation under this chapter on account of personal injury or makes an agreement under section forty-eight, such action shall constitute a release to the insured of all claims or demands at common law against the employer, if any, arising from the injury.” MASS. GEN. LAWS ch. 152, § 23 (2009). An employer who pays worker compensation benefits to an employee as a result of the negligence of a third party may not sue the third party to recover damages for an increase in workers’ compensation benefits. See R.L. Whipple Co., Inc. v. Pondview Excavation Corp., 71 Mass. App. Ct. 871, 873-74 (2008).

F) Standard of review. A party may appeal the decision of the administrative law judge regarding the amount of compensation due to the employee. The appeal will be heard by a review board. "The reviewing board shall reverse the decision of an administrative judge only if it determines that such administrative judge's decision is beyond the scope of his authority, arbitrary or capricious, or contrary to law." MASS. GEN. LAWS ch. 152, § 11C (2009). A review of the decisions rendered by the review

11 board is limited as well. See MASS. GEN. LAWS ch. 152, § 12(2); ch. 30A, § 14; Scheffler's Case, 419 Mass. 251 (1994).

G) Intentional . In Massachusetts, intentional torts committed by co-employees that arise out of one's employment are compensable under the worker's compensation act. See Doe v. Purity Supreme, Inc., 422 Mass. 563 (1996) (citing Anzalone v. Mass. Bay Transp. Auth., 403 Mass. 119 (1988)). Physical and emotional injuries resulting from rape and other forms of sexual fall under the umbrella of intentional torts covered under the Massachusetts workers' compensation act. See id.

H) Sexual harassment. If an injured employee makes a claim for negligent or intentional infliction of emotional distress that arises out of sexual harassment that occurs during the course of employment, then the exclusivity provision of the Workers' Compensation Act bars a civil action to recover damages for negligent or intentional infliction of emotional distress against the employer. See Green v. Wyman-Gordon Co., 422 Mass. 551, 558-59 (1996). Because of the liberal standard applied in Massachusetts regarding injuries arising out of the course of employment, rape and sexual assault maybe classified as “personal injuries” as that term relates to worker's compensation. See generally MASS. GEN. LAWS ch. 152, § 24 (2009); Green, 422 Mass. at 558-59.

I) Invalid defenses. MASS. GEN. LAWS ch. 152, § 66 (2009) states: In such actions brought by said employees or by the Workers' Compensation Trust Fund pursuant to the provisions of subsection (8) of section sixty-five, it shall not be a defense: 1. That the employee was negligent; 2. That the injury was caused by the negligence of a fellow employee; 3. That the employee had assumed voluntarily or contractually the risk of the injury; 4. That the employee's injury did not result from negligence or other fault of the employer, if such injury arose out of and in the course of employment.

J) . "An employer may be held vicariously liable for the of an agent if the tortious act or acts were committed within the scope of employment." Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 404 (1990).

K) Failure to Have Required Worker’s Compensation. “An employer required to maintain workers' compensation insurance who does not do so (or fails to become a licensed self-insurer), is liable in tort to an injured employee without proof of negligence.” Beath v. Nee, No. 08-P-1525, slip op. at *2 (Mass. App. Ct. Jul. 23, 2009). Actions “against an employer for injuries arising out of and in the course of the employment must be based solely upon the employer's alleged failure to secure workers' compensation insurance for its employees.” Id.

Indemnification

12 A) Only faultless parties may seek indemnification. Indemnification does not require that a lawsuit be filed, or a judgment rendered. All that is required to have a right of indemnification is that the party seeking indemnification has settled with a third party. In order to have the right to indemnification, the settlement must be reasonable, and it must be born of some legal obligation to pay the third party. When assessing whether a settlement is reasonable or not, the court will look to the following factors: " . . . likelihood of success or failure, the cost, uncertainty, delay and inconvenience of trial as compared with the advantages of settlement." Berke Moore Co. v. Lumbermens Mut. Cas. Co., 345 Mass. 66, 71 (1962).

B) Improper contractual indemnification clauses. MASS. GEN. LAWS ch. 149, § 29C voids certain types of indemnification agreements between general contractors and their subcontractors. In relevant part, it states that:

Any provision for or in connection with a contract for construction, installation [etc.] . . . on any building or structure, whether underground or above ground, or on any real property . . . which requires a subcontractor to indemnify any party for injury to persons or damage to property not caused by the subcontractor or its employees, agents or subcontractors, shall be void.

MASS. GEN. LAWS ch. 149, § 29C (2009); see also RCS Group Inc., v. Lamonica Constr. Co. Inc., 75 Mass. App. Ct. 613 (2009) (holding that general contractor’s indemnification provision violated MASS. GEN. LAWS ch. 149, §29C since it shifted liability on subcontractor where subcontractor was not at fault).

C) Lease Provisions. Lease provisions in both commercial and all other real property that require a tenant to indemnify the landlord for the landlord’s negligence are void by MASS. GEN. LAWS ch. 186, §15. Norfolk & Dedham Mut. Fire Ins. Co., v Morrison, 456 Mass. 463, 468 (2010). The statute prevents landlords from imputing negligent liability on tenants irrespective of a tenant’s negligence. Id. Lease provisions requiring a tenant to obtain insurance for a landlord do not violate MASS. GEN. LAWS ch. 186, §15. Id. at 471.

D) Damages. There is no right of indemnification in a " . . . case in which a party who must pay damages as a result of an indemnity clause contained in a contract is allowed [to pursue] indemnity against a [third] party responsible for the accident" from which the contractual indemnification arose. Greater Bos. Cable Corp. v. White Mountain Cable Constr. Corp., 414 Mass. 76, 79 (1992).

E) Implied contractual indemnity. Generally speaking, courts have demonstrated reticence in recognizing implied contractual rights to indemnity. See Fall River Hous. Auth. v. H. V. Collins Co., 414 Mass. 10, 14 (1992). F) Contribution. Contribution and indemnity are separate and distinct. "The right of contribution shall exist only in favor of a joint tortfeasor who has paid more than his pro rata share of the common liability and his total recovery shall be limited to the amount paid by him in excess of his pro rata share." MASS. GEN. LAWS ch. 231B, § 1(b) (2009).

13 Joint and Several Liability

A) When determining whether joint liability will apply, the court will look to the test stated in Feneff v. Bos. & Me. R.R. "[I]f two or more wrongdoers negligently contribute to the personal injury of another by their several acts, which operate concurrently, so that in effect the damages suffered are rendered inseparable, they are jointly and severally liable." Feneff, 196 Mass. 575, 581 (1907). Also, when joint tortfeasors are found to be jointly and severally liable, joinder is allowed, but is not mandatory. See Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159 (1909). Thus, the requisite factors for determining joint and several liability are concurrent negligence and inseparable damages. RESTATEMENT (SECOND) OF TORTS §§ 433A-B, 434. B) Damages. With regard to damages, the jury is charged with awarding damages directly attributable to that defendant. The trial judge will then reduce the jury's award based on settlement amounts received from other named defendants. See Morea v. Cosco, Inc., 422 Mass. 601, 603 (1996).

Strict Liability

Massachusetts applies strict liability, regardless of the standards of care that the defendant undertakes to safeguard against personal injury or property damage, to those cases in which a person is held liable for engaging in ultrahazardous activities.

A) Land owners. The rule of strict liability was established by a Massachusetts ruling that cited an old English case. Ainsworth v. Lakin, 180 Mass. 397 (1902) (following Rylands v. Fletcher, 3 H.L. 330 (1868)). Rylands states that, in general:

[W]here one for his own purposes makes an unusual and extraordinary use of his land, in reference to the benefits to be derived therefrom by himself and the damage or losses to which others are thereby exposed, by bringing, collecting or keeping upon it anything possessed of a tendency, according to the reasonable anticipations of mankind with respect to such a hazard, to escape and do great damage, he is bound at his peril to confine and restrain it to his own premises and is liable to actions for injuries resulting as a natural consequence from his failure of duty in this particular.

Bratton v. Rudnick, 283 Mass. 556, 560 (1933). 1) Exceptions. There are three exceptions to the application of strict liability on a land owner. These exceptions will apply even if the land owner is engaging in . These exceptions are: (l) if the plaintiff is injured due to his own fault; Gorham v. Gross, 125 Mass. 232, 238 (1878); (2) an act of God; Bratton, 283 Mass. at 556; or (3) unforeseeable acts of third parties. Kaufman v. Bos. Dye House, Inc., 280 Mass. 161 (1932).

2) Unforeseeable acts of third parties. The Restatement, however, will not relieve a land owner of strict liability for the unforeseeable acts of third parties, even if that third party's acts are negligent or reckless. RESTATEMENT (SECOND)

14 OF TORTS § 522(a). Additionally, under the Restatement, acts of God are not an exception to the doctrine of strict liability. RESTATEMENT (SECOND) OF TORTS § 522(c). The Restatement does recognize an exception for the plaintiffs contributory negligence but only if the plaintiff has "knowingly and unreasonably subject[ed] himself to the risk of harm from the activity." RESTATEMENT (SECOND) OF TORTS § 524(2).

3) Open and Obvious Rule – Snow and Ice. “The open and obvious danger rule does not negate a landowner’s duty to remedy hazardous conditions resulting from unnatural accumulations of ice and snow, at least where . . . those hazards lie in a known path of travel.” Soderberg v. Concord Greene Condo. Ass’n, 76 Mass. App. Ct. 333, 339 (2010).

4) Natural Accumulation of Snow and Ice – Summary Judgment. In slip-and-fall cases (ice) alleging negligent design of parking lots, a defendant is entitled to summary judgment if the plaintiff fails to demonstrate that the defendant (1) was aware of ice or reasonably should have discovered it and (2) the parking lot was built in a way that increased the possibility of ice accumulation. See Diperiso v. TX Planning Trust & , No. 08-P-2004, slip op. at *4 (Mass. App. Ct. 2009).

B) Burden. Whether an activity will subject a party to strict liability is a matter to be decided by the judge, not the jury. The plaintiff bears the burden of alleging and proving strict liability. In order to prove an activity is within the realm of strict liability, the plaintiff must prove: (1) that the defendant's activity is ultrahazardous: (2) that plaintiff suffered damages, and (3) that damage is a result of the defendant's ultrahazardous activity. RESTATEMENT (SECOND) OF TORTS § 520, cmt. f, cited with approval in, Clark-Aiken Co. v. Cromwell-Wright Co., Inc., 367 Mass. 70, 89 (1975). Once a plaintiff establishes that strict liability should apply, the shifts to defendant. Once it is determined that the strict liability doctrine applies, the only way the defendant can prevail is to prove that they may be absolved based on one of the three exceptions listed above because, at this stage, the ultrahazardous activity of the defendant is negligence per se.

A plaintiff may pursue both strict liability and negligence if elements of both are present in the facts. Strict liability doctrine does not preclude the plaintiff from pursuing both causes of action as a means of redress.

C) Abnormally dangerous activities. While it holds true that application of the strict liability doctrine amounts to negligence per se, the activities that lead to strict liability are not subject to the same analysis. Activities alleged to be abnormally dangerous will be looked at in their totality, which will include an analysis of the facts and circumstances of the case. Massachusetts follows the RESTATEMENT (SECOND) OF TORTS § 520 regarding what constitutes abnormally dangerous activities.

1) Application. This list is not exhaustive, but generally, Massachusetts will apply strict liability to the following types of activities or circumstances:

15 a. Owners and keepers of wild animals, and it certain circumstances, domestic animals such as dogs, cats, and livestock; b. Operators and owners of aircraft that result in personal injury and property damage caused "by the ascent, descent or flight of aircraft, or by the dropping or falling of an object from the aircraft.

RESTATEMENT (SECOND) OF TORTS § 520A.

2) Blasting. A plaintiff may recover for personal injury or damage to property that is a direct result of a blasting operation. Direct damage from blasting is the result of stones or debris that is the result of the blast. If a plaintiff is alleging consequential damage, which is the result of concussion or vibration, then that plaintiff must prove ordinary negligence and strict liability will not apply. MASS. GEN. LAWS ch. 148, § 20C (2009); Jenkins v. A. G. Tomasello & Son, Inc., 286 Mass. 180 (1934); Kushner v. Dravo Corp., 339 Mass. 273 (1959); Goldman v. Regan, 247 Mass. 492 (1924); Hakkila v. Old Colony Broken Stone & Concrete Co., 264 Mass. 447 (1928); Dolham v. Peterson, 297 Mass. 479 (1937); O'Regan v. Verrochi, 325 Mass. 391 (1950); Coughlan v. Grande & Son, Inc., 332 Mass. 464 (1955). D) Other instances in which strict liability applies.

1) Injuries to children exposed to lead paint. MASS. GEN. LAWS ch. 111, §§ 197, 199 (2009).

2) Certain areas of environmental law relating to environmental contamination by the expel of hazardous chemicals. MASS. GEN. LAWS ch. 21E, §§ 4-11 (2009).

E) Learned intermediary doctrine. Massachusetts recognizes that, generally, a pharmacist has no duty to warn patients of the hazards and side effects of the drugs these patients have been prescribed because a physician is in the better position to warn. See Cottam v. CVS Pharmacy, 436 Mass. 316, 320 (2002). But a pharmacist will have a duty to warn a particular customer of the potentially adverse interaction of two drugs that the pharmacist knows the customer is taking. Id. Willful and Wanton Conduct

Willful, wanton, and reckless conduct is an act that is intentional in nature and achieved by either an affirmative action, or an omission. See Commonwealth v. Welansky, 316 Mass. 383, 397 (1944).

A) Degree. Willful, wanton or reckless conduct is a higher degree of negligence than ordinary negligence. See Young v. City of Worcester, 253 Mass. 481 (1925).

B) Definition. In Sandler v. Commonwealth, 419 Mass. 334, 336 (1995), the Supreme Judicial Court defined willful, wanton or reckless conduct as that which

involves an intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another. The risk of death or grave bodily injury must be known or reasonably

16 apparent, and the harm must be a probable consequence of the defendant's election to run that risk or of his failure reasonably to recognize it.

Id. (internal citations omitted).

C) Distinguished from negligence or . "Therefore, two characteristics of willful, wanton, or reckless conduct distinguish it from negligence or gross negligence. `First, the defendant must knowingly or intentionally disregard an unreasonable risk. Second, the risk, viewed prospectively, must entail a high degree of probability that substantial harm would result to the plaintiff.'" McFadyen v. Maki, 2006 WL 2089699 (Mass. Super. June 13, 2006) (quoting Manning v. Nobile, 411 Mass. 382, 387-88 (1991)).

D) Municipal Immunity

1) Recreational user statute - MASS. GEN. LAWS ch. 21, § 17C. “The city is entitled to immunity from a plaintiff’s negligence claim under the recreational user statute . . . .” Dunn v. City of Bos., 75 Mass. App. Ct. 556, 562 (2009). Since “the plaintiff was a recreational user (members of the public entering the plaza free of charge for recreational purposes), the city could only be liable to those attendees for its willful, wanton or reckless conduct, not for its ordinary negligence.” Id. at 558.

2) Under MASS. GEN. LAWS ch. 258, § 10(j), a city is immune from "[a]ny claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer." Doe v. City of Fitchburg, No. 08-P-2045, 2010 Mass. App. LEXIS 11, at *8 (Mass. App. Ct. 2010). A principal is also protected from liability under MASS. GEN. LAWS ch. 258, § 2. See Id.

Employer Host Liability

An employer does not assume any host liability for the negligent acts of an intoxicated employee, absent any proof that [the] employer furnished and controlled the alcohol consumed by the employee. See Lev v. Beverly Enter. Mass., Inc., 74 Mass. App. Ct. 413, 416 (2009). Consideration of that duty of cares follows from control over the liquor supply. See Ulwick v. DeChristopher, 411 Mass. 401, 407 (1991). Additionally, an employer’s policy manual prohibiting the consumption of alcohol (by itself) does not create employer liability. See Lev, 74 Mass. App. Ct. at 420-21.

Auto Insurance - Livery Service Liability

Private carriers for hire owe a duty of reasonable care to avoid discharging a passenger, who they [know], or should know, [is] intoxicated and likely to drive an automobile, even if carrier does not provide passenger with alcohol. See Commerce Ins. Co. v. Ultimate Livery Serv. Inc., 452 Mass. 639, 646-47 (2008). Automobile insurers should provide coverage that protects against claims of social host liability and negligence. Id. at 655.

17 Medical Duty to Third Parties

There is no “duty to a third person of a medical professional to control a patient (excluding a patient of a mental health professional) arising from any claimed special relationship between the medical professional and the patient.” Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 42 (2009).

DISCOVERY

Electronic Discovery Rules

A) Although there is no specific Massachusetts rule governing electronic discovery, the obligation to produce electronic documents is set forth in MASS. R. CIV. P. 34 (2010). It defines discoverable documents to include "data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form." See MASS. R. CIV. P. 34(a) (2010). Massachusetts courts have followed this rule. See, e.g., Linnen v. A.H. Robins Co., 1999 Mass. Super. LEXIS 240, *16 (Mass. Super. 1999) ("A discovery request aimed at production of records retained in some electronic form is no different, in principle, from a request for documents contained in an office file cabinet.")

B) "Document." The term "document" when used in its broadest sense under MASS. R. CIV. P. 34 includes, among other things,

any record or compilation of information of any kind or description however made, produced or reproduced, or stored whether by hand or by any electronic, photographic, magnetic, optical, mechanical, computer or other process or technology, and they can take the form of any medium on which information can be stored, including, without limitation, computer memory, computer disk, film, paper, photographs, tape recordings, video tapes and video disks.

Linnen, 1999 Mas. Super LEXIS 240 at *4, n.3.

C) Sanctions. The court may sanction a party that fails to preserve email or other electronic documents after the court ordered that party to preserve the subject document. See, e.g., Linnen, 1999 Mass. Super. LEXIS 240 (where due to defendant's failure to stop process of recycling backup tapes after it had been ordered to preserve documents the court allowed spoliation inference to be given to jury).

D) Effect of discovery. "[T]here is nothing about the technological aspects involved which renders documents stored in electronic media `undiscoverable.'" Id. at *16.

Expert Witnesses

18 A) MASS. R. CIV. P. 26(b)(4)(A) concerns discovery of facts and opinions held by experts and acquired or developed in anticipation of litigation or for trial. It provides that expert discovery may be obtained only as follows:

(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

(ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule concerning fees and expenses, as the court may deem appropriate.

(iii) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in MASS. R. CIV. P. 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(iv) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of MASS. R. CIV. P. 26; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert." MASS. R. CIV. P. 26(b)(4)(A)-(C) (2008).

MASS. R. CIV. P. 26(b)(4) draws an important distinction with respect to discovery between trial experts and non-testifying litigation consultants. The rule requires a party to disclose through answers to interrogatories the identity of any testifying trial expert and the substance of the expert's opinions. Discovery of non-testifying litigation consultants, on the other hand, may be obtained only upon a showing of exceptional need for information in the consultant's possession, which the seeking party cannot obtain by any other means.

B) Disqualification. An expert who has been exposed to relevant confidential information of the opposing party may be disqualified by the court. See Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 271-72 (1990).

C) Forms of disclosure. Expert witnesses are usually disclosed in two ways: (1) through written answers to interrogatories, or (2) through a written expert disclosure before the party’s execution of the pre-trial memorandum.

19 D) Rebuttal witnesses. In Massachusetts, expert witnesses may be used to rebut prior evidence in a trial.

E) Daubert-Lanigan Analysis. Linnen v. A.H. Robins Co., Inc., 972307, 2000 WL 145758 (Mass. Super. Jan. 4, 2000) states:

In determining the admissibility of scientific evidence, the court must act as a gatekeeper to determine whether the proposed evidence is reliable. See Daubert v. Merrel Dow, 509 U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994). An expert is permitted to present opinions "that will assist the trier of fact to understand the evidence or to determine a fact in issue." Daubert, 509 U.S. at 588. Because of their specialized knowledge, experts are subject to more liberal rules of evidence than other witnesses. They may testify to opinions and may base those opinions on facts and data not in evidence. Id. Moreover, a jury may tend to give special deference to the opinion of an expert. See Commonwealth v. Vitello, 376 Mass. 426, 453 (1978). To ensure that expert opinions are sufficiently reliable to assist the trier of fact, an expert must be able to demonstrate that his conclusions are based on scientific knowledge, with "scientific" defined as implying "a grounding in the methods and procedures of science," and "knowledge" defined as connoting "more than subjective belief or unsupported speculation." Daubert, 509 U.S. at 590. To satisfy this standard, an expert witness must show that his opinions "have been arrived at in a scientifically sound and methodologically reliable fashion." See Ruiz Troche v. Pepsi Cola of Puerto Rico, 161 F.3d 77 (1st Cir. 1998). In determining whether expert opinions constitute reliable scientific testimony, a court may apply the non-exhaustive standards set forth in Daubert. Daubert and its progeny teach that to determine whether expert testimony is admissible, the court must make a "preliminary assessment of whether the reasoning or methodology underlying an expert's testimony is scientifically valid." Daubert, 509 U.S. at 592-93. In making such an assessment, the court must determine whether the reasoning or methodology properly can be applied to the facts in issue. Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994) (quoting Daubert, 509 U.S. at 592-93). There are factors that the court may consider in determining the reliability of a scientific opinion, including but not limited to: 1) whether the theory has been subjected to peer review and publication; 2) whether the theory has been tested; 3) whether the theory has a known error rate; and 4) whether the theory has general acceptance in the general scientific community. Lanigan, 419 Mass. at 26. Linnen, 2000 WL 145758, at *4-5.

Non-Party Discovery

20 A) Subpoenas. The issuance of subpoenas is governed by MASS. R. CIV. P. 45 (2008). Three people may lawfully issue a subpoena: (1) the clerk of the court where the action is pending; (2) any notary public; or (3) a justice of the peace. A subpoena is issued merely by signing it, and no additional seal of either the individual or the court is necessary. Rule 45(a) also allows the issuing officer to sign the form in blank, leaving the party who requested the subpoena to complete it. An issued subpoena commands the non-party to appear and, if ordered, to produce documents or other tangible items within the scope of the matter at a specified time and place. A subpoenaed deponent or witness is ordered by law to obey the subpoena.

Privileges

A) Attorney-client privilege. Communications between a client and his or her attorney are protected from disclosure by the attorney-client privilege. See Foster v. Hall, 29 Mass. 89, 92 (1831). The privilege operates to protect disclosures which might not have been made absent the privilege. Fisher v. United States, 425 U.S. 391, 403 (1976). It encourages clients to seek an attorney's advice and to be truthful with the attorney, which in turn allows the attorney to give informed advice; the attorney-client privilege serves the public interest and the interest of the administration of justice.

Commonwealth v. Goldman, 395 Mass. 495, 502 (1985).

1) Belongs to client. For attorney-client privilege, the privilege is held by the client, and it may only be waived by him. But in the absence of contrary evidence, an attorney is presumed to have authority to claim the privilege on his client's behalf. See id.

B) Ordinary and opinion work product. Pursuant to MASS. R. CIV. P. 26(b)(3) (2010), ordinary work product is material prepared by or for a party or that party's representative in anticipation of litigation or for trial. Opinion work product is comprised of "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation" See MASS. R. CIV. P. 26(b)(3). Opinion work product receives special protection under MASS. R. CIV. P. 26(b)(3). See Hull Mun. Lighting Plant v. Mass. Mun. Wholesale Elec. Co., 414 Mass. 609, 616 (1993) (indicating that if the required showing is made, an order to produce work product must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation). Even a non-attorney's mental impressions, opinions, and litigation theory may be protected as work product. See Sprague v. Dir., Office of Workers' Comp. Program, 688 F.2d 862, 869-70 (1st Cir. 1982).

1) Limit. But "not every item which may reveal some inkling of a lawyer's mental impressions, conclusions, opinions or legal theories is protected as opinion work product." In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 21 1015 (1st Cir. 1988). Protection as opinion work product is warranted when disclosure creates a real, non-speculative danger of revealing the lawyer's thoughts, and the lawyer had a justifiable expectation that the mental impressions revealed by the materials would remain private. See id. at 1015-16.

C) Mediation privilege. MASS. GEN. LAWS ch. 233, § 23C (2009) states:

All memoranda, and other work product prepared by a mediator and a mediator's case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to any mediation to which such materials apply, Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding; provided, however, that the provisions of this section shall not apply to the mediation of labor disputes. D) Self critical analysis. "Under the self-critical analysis privilege recognized in some states, an organization's internal investigations and reports remain confidential. This privilege is designed to encourage openness within the organization, thereby fostering self-improvement." Harris-Lewis v. Mudge, 9 Mass. L. Rptr. 572 (Super. Ct. 1999) (Fremont-Smith, J.) Claims of privilege are not, however, favored in Massachusetts, where the principle that the public has a "right to every man's evidence has been preferred, on the whole, to countervailing interests" and furthermore, because privileges are generally legislatively determined, courts discern new privileges "only with great reluctance." See id. (refusing to adopt the self critical analysis in Massachusetts). Requests for Admission

MASS. R. CIV. P. 36 (2010) governs requests for admission.

A) Written requests. Under that rule, a party may serve another party with a written request for an admission, but only for purposes of the pending action, and only for the truth of any matters within the scope of Rule 26(b) set forth in the request as they relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request.

B) Requirements. The rule requires each matter of which an admission is requested to be separately set forth. Requests should state in simple declarative sentences each fact designed to be admitted. To the extent a request for admission is ambiguous, that ambiguity is to be construed against the party whose lawyer drafted the request. See Houston v. Houston, 64 Mass. App. Ct. 529, 538 (2005) (citing Talley v. United States, 990 F.2d 695, 699 (1st Cir. 1993), cert. denied, 510 U.S. 867 (1993)).

The matters will be admitted unless within 30 days after service of the request, the party to whom the request is directed, serves upon the party requesting the admission either (1) a written statement signed by the party 22 under the penalties of perjury specifically (i) denying the matter or (ii) setting forth in detail why the answering party cannot truthfully admit or deny the matter; or (2) a written objection signed by the party or his attorney, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him.

MASS. R. CIV. P. 36(a) (2010).

C) Objections. Specific reasons must accompany any stated objections to the request for admission:

The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial.

MASS. R. CIV. P. 36(a) (2010).

D) Effect of admission. MASS. R. CIV. P. 36 (2010) states: Any matter admitted under this rule is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission . . . . Any admission made by a party under this rule is admitted for the purpose of the pending action only, and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.

EVIDENCE, PROOFS & TRIAL ISSUES

Accident Reconstruction

Accident reconstruction evidence is admissible in Massachusetts, provided all other evidentiary standards are complied with.

In selecting an expert to reconstruct an occurrence, the primary requirement should be a solid academic background in the relevant scientific field. The more advanced the academic background, the better. Hiring a person with no knowledge of physics to reconstruct a motor vehicle accident can prove disastrous . . . . After identifying a candidate with a solid academic background, the next criterion in the selection of an expert should be real life experience with the subject matter at issue.

23 See ROBERT A. CURLEY, JR. & CHARLES W. DIETRICH, MCLE: MASSACHUSETTS EXPERT WITNESSES § 7.1.4 Accident Reconstruction: The Selection of an Expert (2010).

Appeals

The Massachusetts Rules of Appellate Procedure control appeals to the Supreme Judicial Court and the Appeals Court. Matters reach the appellate level through one of two methods, appeal or report.

A) Appeal.

1) Appeals Court. "There shall be an intermediate appellate court to be known as the appeals court. The appeals court shall consist of a chief justice and twenty- four associate justices." MASS. GEN. LAWS ch. 211A, § 1 (2009). "Three justices shall constitute a quorum to decide all matters required to be heard by the appeals court or, upon order of the chief justice, four or more justices may sit. The court may sit in panels of three or more justices." MASS. GEN. LAWS ch. 211A, § 3. The appeals court reviews the final judgments of the lower trial courts and pursuant to MASS. GEN. LAWS ch. 231, § 118 also has the authority to review preliminary decisions by the superior and housing courts.

2) Supreme Judicial Court. Massachusetts' highest appellate court is the supreme judicial court. "The supreme judicial court [consists] of one chief justice and six associate justices." MASS. GEN. LAWS ch. 211, § 1 (2009). "The full court shall be the supreme judicial court in banc, and four justices shall constitute a quorum to decide all matters required to be heard by it." MASS. GEN. LAWS ch. 211, § 2. The supreme judicial court and the appeals court have concurrent appellate jurisdiction. See MASS. GEN. LAWS ch. 211A, § 10; ch. 211, § 3:

The supreme judicial court [has] general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided; and it may issue all writs and processes to such courts and to corporations and individuals which may be necessary to the furtherance of justice and to the regular execution of the laws.

3) Direct and further appellate review. Cases are either brought before the supreme judicial court through direct appeal or through further appellate review. A direct appeal occurs when an appeal moves from the trial court to the supreme judicial court without the appeals court having reached a decision. Further appellate review on the other hand, involves the supreme judicial court's review of a decision reached by the appeals court. Massachusetts statutes are clear on when this may occur:

There shall be no further appellate review by the supreme judicial court of any matter within the jurisdiction of the appeals court which has

24 been decided by that court, except: (a) where a majority of the justices of the appeals court deciding the case, or of the appeals court as a whole, certifies that the public interest or the interests of justice make desirable a further appellate review, or (b) where leave to obtain further appellate review or late review is specifically authorized by three justices of the supreme judicial court for substantial reasons affecting the public interest or the interests of justice.

MASS. GEN. LAWS ch. 211A, § 11 (2009).

4) Concurrent appellate jurisdiction. MASS. R. APP. P. 11 (2010) states:

An appeal within the concurrent appellate jurisdiction of the Appeals Court and Supreme Judicial Court shall be entered in the Appeals Court before a party may apply to the Supreme Judicial Court for direct appellate review. Within twenty days after the docketing of an appeal in the Appeals Court, any party to the case (or two or more parties jointly) may apply in writing to the Supreme Judicial Court for direct appellate review, provided the questions presented by the appeal are: (1) questions of first impression or novel questions of law which should be submitted for final determination to the Supreme Judicial Court; (2) questions of law concerning the Constitution of the Commonwealth or questions concerning the Constitution of the United States which have been raised in a court of the Commonwealth; or (3) questions of such public interest that justice requires a final determination by the full Supreme Judicial Court. Oral argument in support of an application will not be permitted except by order of court. B) Report. The Massachusetts Rules of Civil Procedure distinguish the manner in which a case is reported for appeal based upon whether or not it is a district court case.

1) Courts other than district court. For all courts, other than the district court

[t]he court, after verdict or after a finding of facts under [MASS. R. CIV. P.] 52, may report the case for determination by the appeals court. If the trial court is of opinion that an interlocutory finding or order made by it so affects the merits of the controversy that the matter ought to be determined by the appeals court before any further proceedings in the trial court, it may report such matter, and may stay all further proceedings except such as are necessary to preserve the rights of the parties. The court, upon request of the parties, in any case where the parties agree in writing as to all the material facts, may report the case to the appeals court for determination without making any decision thereon. In an action commenced before a single justice of the supreme judicial court, the court may report the case in the circumstances above described to either the appeals court or the full supreme judicial court; provided further that a single justice of the supreme judicial court may at any time reserve any question of law

25 for consideration by the full court, and shall report so much of the case as is necessary for understanding the question reserved.

MASS. R. CIV. P. 64(a) (2010).

2) District Court. In the district court context, District/Municipal Courts Rule for Appellate Division Appeal 5 governs the report of a case or a ruling by the court to the Appellate Division. MASS. R. CIV. P. 64(b).

Pursuant to G.L. c. 231, s. 108, a judge may, in his or her discretion, report a judgment, interlocutory or other ruling, finding or decision for determination by the Appellate Division. The judge's report shall for all purposes under these rules constitute a notice of appeal, and the filing of such report by the judge shall be considered the filing of a notice of appeal for purposes of computing time under these rules. The court may, upon notice to the parties, conduct a hearing on the form and content of the report prior to filing. The report as filed shall contain all information necessary to permit a review and determination of the issues presented. The clerk of the trial court shall serve notice of the filing of the report by forthwith mailing a copy thereof to counsel of record for each party, and shall proceed as otherwise ordered by the court. Unless ordered otherwise by the court, the clerk shall transmit the report to the Appellate Division within 20 days after the filing thereof.

DIST. MUN. CTS. R.A.D.A. 5 (2008).

C) Interlocutory orders. For the most part, appellate courts only review final judgments and interlocutory orders are not subject to immediate appeal. When a party seeks to preserve an interlocutory order for appeal they must object to the order, when possible, and designate the order in the notice of appeal. But an interlocutory order need not be noticed for appeal at the time it is entered. See MASS. R. APP. P. 3(a) (2010).

1) Exceptions. There are three recognized exceptions to the general rule barring immediate appeal of an interlocutory order.

a) Preliminary . As indicated above, a single justice of the appellate court may review an order granting or denying preliminary injunctions. See MASS. GEN. LAWS ch. 231, § 118 (2009).

b) Stay of proceedings. As also indicated above, [i]f the trial court is of opinion that an interlocutory finding or order made by it so affects the merits of the controversy that the matter ought to be determined by the appeals court before any further proceedings in the trial court, it may report such matter [to the appellate court], and may stay all further

26 proceedings except such as are necessary to preserve the rights of the parties.

See MASS. R. CIV. P. 64(a) (2010).

c) Present execution. Massachusetts recognizes the doctrine of present execution. "Under [the doctrine of present execution], immediate appeal of an interlocutory order is allowed if the order will interfere with rights in a way that cannot be remedied on appeal from the final judgment." Fabre v. Walton, 436 Mass. 517, 521 (2002) (finding interlocutory orders relating to claims of governmental immunity from suit are appealable pursuant to the doctrine of present execution because the entitlement is an immunity from suit rather than a mere defense to liability, and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial). See also Borman v. Borman, 378 Mass. 775 (1979).

D) Notice of Appeal. MASS. R. APP. P. 4(a) (2010) states:

In a civil case, unless otherwise provided by statute, the notice of appeal required by [MASS. R. APP. P. 3] shall be filed with the clerk of the lower court within thirty days of the date of the entry of the judgment appealed from; but if the Commonwealth or an officer or agency thereof is a party, the notice of appeal may be filed by any party within sixty days of such entry, except in child welfare cases, in which the notice of appeal shall be filed within thirty days from the date of the entry of the judgment, decree, order, or adjudication. If a notice of appeal is mistakenly filed in an appellate court, the clerk of such appellate court shall note the date on which it was received and transmit it to the clerk of the lower court from which the appeal was taken and it shall be deemed filed in such lower court on the date so noted. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within fourteen days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule whichever period last expires. Collateral Source Rule

A) The "collateral source rule" is a rule of evidence in Massachusetts that precludes a defense attorney from introducing evidence that any portion of the plaintiffs damages were paid by other (collateral) sources. Collateral sources include, but are not limited to, medical insurance, workers' compensation benefits, disability insurance and social security benefits. See Goldstein v. Gontarz, 364 Mass. 800, 808-10 (1974).

B) Exceptions. There are exceptions to the collateral source rule for impeachment purposes, or to show a motive for a defense of "malingering" to challenge the claim that the damages were reasonable or necessary." J. KENNETH GRIFFIN, MCLE: WINNING THROUGH SETTLEMENT, §2.2.4 Collateral Source Rule (2008). 27 Convictions

A) Criminal. MCLE: MASSACHUSETTS EVIDENCE: A COURTROOM REFERENCE states:

Prior criminal convictions are admissible to impeach the credibility of a witness in both criminal and civil proceedings... This is based on the general proposition that a person who is convicted of a crime has a bad character and is unworthy of credit. Gertz v. Fitchburg R.R. Co., 137 Mass. 77 (1884). Trial court discretion to admit or exclude prior convictions is now established particularly when that proof is offered against a testifying defendant in a criminal case. Commonwealth v. Maguire, 392 Mass. 466 (1984).

J.W. CARNEY, JR. & JOHN E. FENTON, JR., MCLE: MASSACHUSETTS EVIDENCE: A COURTROOM REFERENCE § 11.2.2 Prior Convictions (a) (2008).

1) Credibility. "If a convicted person's credibility becomes suspect in subsequent legal proceedings, the jury is entitled to consider the prior convictions in determining how much of the testimony of these witnesses they believed. Commonwealth v. Riccard, 410 Mass. 718, 724-25 (1991)." Massachusetts practice in this area is established and regulated by MASS. GEN. LAWS ch. 233, § 21, which provides that "[t]he conviction of a witness of a crime may be shown to affect his credibility," subject to time limitations imposed and depending on whether the conviction was for a misdemeanor, felony, or traffic violation. This statute does not apply if the convictions are being offered for a purpose other than impeachment. See, e.g., Care & Prot. of Frank, 409 Mass. 492, 495 (1991) (convictions of possession of marijuana and operating under the influence of alcohol were relevant to mother's fitness as a parent). However, a criminal conviction against someone other than the defendant is not admissible by the Commonwealth for purposes other than impeachment. Commonwealth v. Powell, 40 Mass. App. Ct. 430, 435-37 (1996) (error to admit conviction of witness who pleaded guilty to crime as proof that witness had used gun during robbery).

2) Sealed convictions. "Sealed convictions may not be used to impeach credibility but may be used to show bias or motive." Commonwealth v. Satos, 376 Mass. 920 (1978). J.W. CARNEY, JR. & JOHN E. FENTON, JR., MCLE: MASSACHUSETTS EVIDENCE: A COURTROOM REFERENCE § 11.2.2 Prior Convictions (f) (2008).

B) Traffic tickets. "[T]he record of [a witness'] conviction for a traffic violation upon which a fine only was imposed shall not be shown [to affect credibility] unless he has been convicted of another crime or crimes within five years of the time of his testifying." MASS. GEN. LAWS ch. 233, § 21 (2009).

Dead Man's Statute

There is no Dead Man's Statute in Massachusetts:

28

In any action or other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay or as private conversation between husband and wife, as the case may be, if the court finds that it was made in good faith and upon the personal knowledge of the declarant.

MASS. GEN. LAWS ch. 233, § 65 (2009).

"[T]he legislative decision to create this exception to the hearsay rule for declarations of deceased persons is applicable in all civil cases." Harrison v. Loyal Protective Life Ins. Co., 379 Mass. 212, 219 (1979).

Default

“Upon default . . . the factual allegations of a complaint are accepted as true for purposes of establishing liability.” Mai v. Smith, 09-P-657, 2010 Mass. App. LEXIS 370, at *5 (Mass. App. Ct. 2010). Whether a statement for a claim of relief is adequate remains open. Id. A defaulting party does not automatically admit conclusions of law and “and may contest the sufficiency of the complaint and its allegations to support the judgment.” Id.

Medical Bills

So long as the opposing party has been provided a copy of the pertinent medical bills pursuant to the requirements of MASS. GEN. LAWS ch. 233, § 79G, then

[i]n any proceeding commenced in any court, commission or agency, an itemized bill and reports, including hospital medical records, relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for a person injured, or any report of any examination of said injured person, including, but not limited to hospital medical records subscribed and sworn to under the penalties of perjury by the physician, . . . shall be admissible as evidence of the fair and reasonable charge for such services or the of such services or treatments, the diagnosis of said physician or dentist, the prognosis of such physician or dentist, the opinion of such physician or dentist as to of the condition so diagnosed, the opinion of such physician or dentist as to disability or incapacity, if any, proximately resulting from the condition so diagnosed . . . .

MASS. GEN. LAWS ch. 233, § 79G (2009); see also Boehm v. Arbella Mut. Ins. Co., 2003 Mass. App. Div. 115, at *1, n.1 (2003).

Offers of Judgment

Massachusetts Rule of Civil Procedure 68 governs offers of judgment:

29 At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment exclusive of interest from the date of offer finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability. MASS. R. CIV. P. 68 (2010). Offers of Proof

A) MASS. R. CIV. P. 43(c) governs offers of proof:

In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness. The court may require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.

MASS. R. CIV. P. 43(c) (2010).

B) Purpose. "The purpose of an offer of proof is to show an appellate court that the proponent had been prejudiced by the exclusion of offered evidence. Where the content of the excluded evidence is apparent, the strict necessity for an offer of proof is obviated." Letch v. Daniels, 401 Mass. 65, 70 (1987) (internal citations omitted).

C) Necessity. "[I]n the absence of an offer of proof there [can be] no showing that it was prejudicial to refuse to admit the excluded testimony." Cooke v. Walter Kidde & Co., Inc., 8 Mass. App. Ct. 902, 903 (1979) (internal citations omitted).

30 Prior Accidents

"[W]here substantial identity in the circumstances appears, and the danger of unfairness, confusion or undue expenditure of time in the trial of collateral issues seems small, the admission of [prior accident] evidence has resided in the judge's sound discretion." Kromhout v. Commonwealth, 398 Mass. 687, 693 (1986) (citing Williams v. Holbrook, 216 Mass. 239, 241 (1913)). The admissibility of evidence of injury to others at other times by reason of the same thing that caused the plaintiff's injury, for the purpose of showing that thing to be dangerous, has often come before [the supreme judicial court]. Such evidence is open to grave objections. Its persuasive force depends upon similarity in the circumstances of different injuries, of which it is hard to be certain. Substantial identity in the alleged defective condition is only the first essential. The person who was injured at the time to which the offered evidence relates may have been defective in eyesight, feeble, or careless. The fact that he was injured may have little or no bearing upon the danger to a normal traveler. Moreover, though the same defective condition may have been present at both times, the actual causes of the two injuries may have been different. Unless a comparison of the circumstances and causes of the two injuries is made, the injury to another is without significance. But if such a comparison is undertaken, the minds of the jurors must be diverted from the injury on trial into a detailed and possibly protracted inquiry as to injuries received by others at various times. Those injuries have only a collateral and often minor bearing upon the case. As to them the opposing party will often be ill prepared to present evidence. There is danger that a jury may disregard the real differences in the circumstances of the two incidents, and find upon mere superficial similarity that a dangerous condition existed. Similar considerations apply where evidence that other people, confronted at other times with the same alleged danger, suffered no injury, is offered to prove the want of a dangerous condition.

Kromhout, 398 Mass. at 693 (denying the admission of prior accident evidence).

Relationship to the Federal Rules of Evidence

Massachusetts has not codified its own rules of evidence. The Supreme Judicial Court has selectively adopted some portions of the Federal Rules of Evidence. Attorneys do look to the Federal Rules for guidance as to admissibility requirements and standards.

Seat Belt Use Admissibility

"[Failure to properly restrain a child passenger in a motor vehicle] shall not be used as evidence of contributory negligence in any civil action." MASS. GEN. LAWS ch. 90, § 7AA. (2009).

Statement Against Penal Interest

31

“As a hearsay exception, a statement is admissible as a declaration against penal interest if (1) the declarant is unavailable; (2) “the statement . . . so far tend[s] to subject the declarant to criminal liability ‘that a reasonable man in his position would not have made the statement unless he believed it to be true’”; and (3) the statement, “if offered to exculpate the accused, [is] corroborated by circumstances clearly indicating its trustworthiness.” Commonwealth v. Lopera, 42 Mass. App. Ct. 133, 135-36 (1970) (quoting Commonwealth v. Drew, 397 Mass. 65, 73 (1986); See Zinck v. Gateway Country Store, Inc., 72 Mass. App. Ct. 571, 574-75 (2008) (holding that sufficient facts were present to support the “statement against interest” hearsay exception in answering claims to the negligent sale of alcohol to an underage person which resulted in the death of a minor and the severe injury of another).

Spoliation

Massachusetts recognizes the doctrine of spoliation:

[It] permits the imposition of sanctions and remedies for the destruction of evidence in civil litigation. The doctrine is based on the premise that a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results.

Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 234 (2003); see also Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127 (1998) (also including negligent destruction of evidence as sufficient to constitute spoliation); Scott v. Garfield, 454 Mass. 790, 797-800 (2009) (affirming judge’s sanction that precluded defendant from introducing evidence about columns that were not preserved by the defendant, permitted plaintiff to inquire about the unavailability of the columns, and allowing the jury to draw an adverse inference from that fact). It has been "implicitly recognized that persons who are actually involved in litigation (or know that they will likely be involved) have a duty to preserve evidence for use by others who will also be involved in that litigation." Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 549-50 (2002). "[The Court], in recognizing such a duty . . . simultaneously craft[s] the remedy for spoliation within the context of the underlying civil action. Sanctions in that action are addressed to the precise unfairness that would otherwise result." Id. at 550. "As a general rule, a judge should impose the least severe sanction necessary to remedy the prejudice to the nonspoliating party." Keene, 439 Mass. at 235. For example, when a grocery store failed to preserve a lift involved in an accident and surveillance video while knowing of the likelihood of a potential lawsuit, sanctions for spoliation were proper, the defendant’s expert would not be permitted to testify, and the jury would receive an instruction that they could draw an adverse inference from the spoliation. See MacLellan v. Shaw’s Supermarket, Inc., 24 Mass. L. Rep. 317 (Mass. Super. June 23, 2008).

Subsequent Remedial Measures

Martel v. Mass. Bay Transp. Auth., 403 Mass. 1, 4 (1988) states:

32 Evidence of post-accident safety improvements is not admissible to prove negligence. Canto v. Ametek, Inc., 367 Mass. 776, 779 (1975); see, e.g., Manchester v. Attleboro, 288 Mass. 492 (1934); Albright v. Sherer, 223 Mass. 39, 42 (1915); Shinners v. Proprietors of Locks & Canals on Merrimack River, 154 Mass. 168 (1881). The predominant reason for this derives from public policy unrelated to the fact-finding process, that a contrary rule would discourage owners from making repairs to dangerous property.

Use of Photographs As demonstrative evidence, photographs aid a fact finder by supplementing verbal testimony. In order to be admitted a foundation for the photograph must be laid by someone with personal knowledge to testify that the photo shows what it is alleged it shows. McKarren v. Bos. & N. St. Ry. Co., 194 Mass. 179 (1907). Before being admitted the photo will also be subject to the typical judicial balancing test to make sure that it is not more prejudicial than probative to any party involved in the trial. See Com. v. Meinholz, 420 Mass. 633, 635-66 (1995).

DAMAGES

Caps on Damages

A) Limitation of tort liability of certain charitable organizations. MASS. GEN. LAWS ch. 231, § 85k (2009) states:

[I]f [the] tort was committed in the course of any activity carried on to accomplish directly the charitable purposes of such corporation, trust, or association, liability in any such cause of action shall not exceed the sum of twenty thousand dollars exclusive of interest and costs. Notwithstanding any other provision of this section, the liability of charitable corporations, the trustees of charitable trusts, and the members of charitable associations shall not be subject to the limitations set forth in this section if the tort was committed in the course of activities primarily commercial in character even though carried on to obtain revenue to be used for charitable purposes. Because the cap on damages is statutory, the judiciary does not have the power to strike that cap down as a means to sanction the charitable corporation. See Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 240-41 (2003).

B) Limitation on governmental or municipal liability. MASS. GEN. LAWS ch. 258, § 2 (2009) states:

Public employers shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances, except that public employers shall not be liable to levy of

33 execution on any real and personal property to satisfy judgment, and shall not be liable for interest prior to judgment or for punitive damages or for any amount in excess of $100,000.

In a case where the plaintiff has been found comparatively negligent, the statutory cap will be applied after the damages award has been reduced by the plaintiff's percentage of fault, not before. See Rodriguez v. Cambridge Hous. Auth., 59 Mass. App. Ct. 127 (2003).

1) Per plaintiff. The damages cap is applied on a per-plaintiff basis and without regard to the number of claims that plaintiff has. See Irwin v. Town of Ware, 392 Mass. 745, 766-72. (1984). 'Claim' as the term is used in the statute is to mean the total amount of recoverable damages allocated to one plaintiff and arising out of the same incident or occurrence. Id.

C) Limitation on damages in medical malpractice cases. MASS.. GEN. LAWS ch. 231, § 60h (2009) states:

In any action for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services, other than actions brought under section two of chapter two hundred and twenty-nine, against a provider of health care, the court shall instruct the jury that in the event they find the defendant liable, they shall not award the plaintiff more than five hundred thousand dollars for pain and suffering, loss of companionship, embarrassment and other items of general damages unless the jury determines that there is a substantial or permanent loss or impairment of a bodily function or substantial disfigurement, or other special circumstances in the case which warrant a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained. D) Worker's compensation cap. An injured worker seeking compensation pursuant to the workers' compensation act will not receive more than fifteen thousand dollars for bodily disfigurement. There are other types of injuries, besides body disfigurement, that are compensatory and do not have a cap under the workers' compensation act. Scars alone will not be compensable under this section, unless the disfiguring scar is on the face, neck or hands. MASS. GEN. LAWS ch. 152, § 36(k) (2009).

Calculation of Damages

A) Burden. In tort cases, generally, the plaintiff bears the burden of proving that they have suffered actual or special damages that are the direct result of some act or omission committed by the defendant. See Sullivan v. Old Colony St. Ry., 200 Mass. 303 (1908).

B) Distinguishing from expenses. "Damages" is the dollar figure representative of the injury plaintiff has suffered. "Expenses" are an element of damages that are calculated

34 into the total damages award. See Berube v. Selectmen of Edgartown, 336 Mass. 634, 639 (1958).

C) Economic Loss Rule. The traditional economic loss rule provides that, when a defendant interferes with a contract or economic opportunity due to negligence and causes no harm to either the person or property of the plaintiff, the plaintiff may not recover for purely economic losses. See Garweth Corp. v. Bos. Edison Co., 415 Mass. 303, 306 (1993). Currently, in order to recover purely economic losses in tort cases or under the strict liability doctrine, the plaintiff must have also suffered some personal injury or property damage. See FMR Corp. v. Bos. Edison Co., 415 Mass. 393, 395 (1993). The exception is that pecuniary losses related to damage to property caused by a defendant is a recoverable injury. See Aldrich v. ADD Inc., 437 Mass. 213, 222 (2002); see also Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 413 (2003) (economic loss rule is waived if not raised).

Available Items of Personal Injury Damages

A) Past medical bills. Past medical bills are recoverable, if the treatment was reasonable and the defendant was causally liable for the injury for which treatment was sought. See Rodgers v. Boynton, 315 Mass. 279, 280-81 (1943). The actual measure of damage relative to past medical bills is the fair value of the medical services rendered. Id. A plaintiff need not have paid the bill for medical services rendered; it is sufficient that he has incurred the services that render said bills his responsibility. See Arwshan v. Meshaka, 288 Mass. 31, 34 (1934).

1) Business records. So long as medical bills have been certified as authentic by a keeper of records at the facility where such records are received from, then those bills may be used in any court proceeding as evidence of treatment, and as evidence of the reasonable fee for medical services in treatment of the alleged injury. These certified and authenticated bills will be enough on their face to be admitted and will not require a physician's testimony to accompany them. Additionally, in order to be used in said court proceeding, copies of the bills must have been sent to opposing counsel no later than 10 days before trial, via certified mail with a return receipt requested. MASS. GEN. LAWS ch. 233, § 79G (2009).

B) Future medical bills. An injured plaintiff is entitled to recovery for reasonably necessary, future medical expenses. See Thibeault v. Poole, 283 Mass. 480, 484 (1933).

C) Hedonic damages. "What is often termed 'mental pain and suffering' includes . . . any and all nervous shock, anxiety, embarrassment, or mental anguish resulting from the injury." Linscott v. Burns, 2005 WL 351039, at *2 (Mass. Sup. Ct. 2005) (quoting Superior Court Civil Jury Instructions § 3-12 (MCLE 1999)); see Carr v. Arthur D. Little, Inc., 348 Mass. 469 (1965). "This category of damages thus includes harm in the form of the loss of the enjoyment of life activities, hobbies, recreational activities, family relationships, and companionship with friends affected by the physical injuries suffered

35 by the plaintiff." Linscott, 2005 WL 351039, at *2. Thus, hedonic damages are recoverable, but only in the sense that they are included in a damages award for mental pain and suffering.

D) Increased risk of future harm. Massachusetts does not allow recovery for emotional distress damages based on fear of future injury. See Curran v. Mass. Turnpike Auth., 2 Mass. L. Rptr. 260, at *5 (Mass. Super. 1994) (citing Payton v. Abbott Labs., 386 Mass. 540, 544 (1982)).

E) Disfigurement. Disfigurement is a measure of damages that is encapsulated in a calculation for pain and suffering. See Gagnon v. Shoblom, 409 Mass. 63 (1991).

1) Motor vehicle accident. If a plaintiff suffers personal injury that stems from a motor vehicle accident, that plaintiff is entitled to damages for pain and suffering

only if the reasonable and necessary expenses incurred in treating such injury . . . for necessary medical, surgical, x-ray and dental services, including . . . necessary ambulance . . . expenses are determined to be in excess of five hundred dollars unless such injury . . . (3) consists in whole or in part of permanent and serious disfigurement.

See MASS. GEN. LAWS ch. 231, § 6D (2009).

F) Disability. Disability is a measure of damages that is encapsulated in a calculation for pain and suffering. See Cuddy v. L & M Equip. Co., 352 Mass. 458 (1967).

G) Past pain and suffering. A plaintiff is entitled to recover damages, which includes damages for pain and suffering, for injuries caused by a tortfeasor. See Rodgers v. Boynton, 315 Mass. 279, 280-81 (1943). Any mental distress and/or apprehension that flows from the alleged transaction or occurrence that caused the plaintiff's injury, will be factored into the calculation of pain and suffering. See Choicener v. Walters Amusement Agency, Inc., 269 Mass. 341 (1929).

Another statute that restricts the recovery of pain and suffering damages is MASS. GEN. LAWS ch. 231, § 6D, which provides that a plaintiff injured in a motor vehicle accident:

may recover damages for pain and suffering, including mental suffering . . only if the reasonable and necessary expenses incurred in treating such injury . . . are determined to be in excess of two thousand dollars unless such injury . . . (1) causes death, or (2) consists . . . of loss of a body member, or (3) consists… of permanent and serious disfigurement, or (4) results in such loss of sight or hearing . . . or (5) consists of a fracture.

MASS. GEN. LAWS ch. 231, § 6D (2009).

36 H) Future pain and suffering. To the extent that an expectation of future pain and suffering is calculable, the plaintiff may recover for it. As an aid in determining the proper monetary compensation for future pain and suffering, the trier of fact may consider the plaintiff's life expectancy. See Cuddy v. L & M Equip. Co., 352 Mass. 458 (1967).

I) Loss of society. Also known as , it is a spouse's right to services, society, affection and sexual comfort of the other spouse. See Diaz v. Eli Lilly & Co., 364 Mass. 153, 166-67 (1973).

1) Independent claim. A loss of consortium claim is an independent claim against the tortfeasor, whose acts have injured the spouse. See Duffee v. Bos. Elevated Ry. Co., 191 Mass. 563, 564 (1906). An action for loss of consortium may not accrue on the same date as the injury to the spouse, but in most cases the accrual date and accident date are the same. See Olsen v. Bell Tel. Labs., Inc., 388 Mass. 171, 176-77 (1983).

2) Children. Massachusetts first recognized a child's right to damages for the loss of parental society in Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 516 (1980). The cause of action requires that the child be a minor and that they are dependent on the parent, not only economically, but also for closeness, guidance and support. Id. It also requires that the minor child has an interest "in the society and affection of the parent, at least while he remains in the household." Glicklich v. Spievack, 16 Mass. App. Ct. 488, 496 (1983) (quoting Ferriter, 381 Mass. at 516-17). Additionally, Glicklich adds that Ferriter does not require that the injured parent be the principal wage earner, so long as the minor child lives in the parent's household and is dependent on the parent for management of their needs, emotional guidance and support. Id. Children that are not minors may still recover for loss of parental society, but only if they are mentally or physically handicapped, and have a unique and intense dependency on the injured parent. See Morgan v. Lalumiere, 22 Mass. App. Ct 262, 270 (1986); see also Angelini v. OMD Corp., 410 Mass. 653, 657-58 (1991) (unborn child may have a right to loss of parental consortium if said unborn child was conceived prior to parent's injury, is born alive, and demonstrates a reasonable likelihood of a dependent relationship).

J) Lost income, wages, earnings. In Massachusetts a plaintiff may recover damages for the decrease in his ability to earn wages/income that stem directly from the negligence of the defendant. Plaintiff may introduce evidence of previous years' income as evidence of diminished capacity to earn. See Donoghue v. Holyoke St. Rwy. Co., 246 Mass. 485, 494 (1923); Stynes v. Bos. Elevated Ry. Co., 206 Mass. 75, 76-77 (1910); Murdock v. N.Y. & Bos. Despatch Express Co., 167 Mass. 549, 550 (1897). As is the case in any jury trial, the jury may use its own common experience or knowledge to assess the monetary remuneration that will compensate the plaintiff for his impaired earning capacity. See Doherty v. Ruiz, 302 Mass. 145, 147 (1939).

37 1) Test. The test is specific to this plaintiff. It is not what an average person in the plaintiff's position would have earned, but rather what this particular plaintiff did earn and would have earned minus the impairment. See Braithwaite v. Hall, 168 Mass. 38, 38 (1897). The plaintiff is required to offer, as proof, more than loose estimates of his earning capacity. The plaintiff must be able "to support a rational conclusion as to the extent his capacity to earn has been impaired and the fair value of such impairment." Williamson v. Feinstein, 311 Mass. 322, 324 (1942). But the plaintiff is not required to prove his earning capacity with mathematical precision. Testimony regarding plaintiff's expertise in his field will be sufficient. See Leave v. Bos. Elevated Ry. Co., 306 Mass. 391, 393-95 (1940). Actuarial testimony regarding the plaintiff's life expectancy is admissible in cases where the plaintiff has a permanent injury or disability to the extent that such an injury will have an impact on plaintiff's ability to earn income. Id.

Loss of Chance Doctrine

A) Massachusetts recognizes a cause of action for lost chance, where, by a negligent act, an injured party has had his chance of survival reduced. Massachusetts adopts the proportional damages method because it is "the most appropriate way to quantify the value of the loss of chance for a more favorable outcome, because it is an easily applied calculation that fairly ensures that a defendant is not assessed damages for harm that he did not cause." Matsuyama v. Birnbaum, 452 Mass. 1, 28 (2008). This cause of action is currently only available for cases of medical negligence

B) Proportional damages. "Under the proportional damages approach, loss of chance damages are measured as 'the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome.’” Id. at 26 (quoting King Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 YALE L.J. 1353, at 1382 (1981)). Hinging recovery on whether a patient’s pre-negligence chance of survival is more or less than 50 % before malpractice is inappropriate. See Renzi v. Paredes, 452 Mass. 38, 45 (2008).

Mitigation

A) A person that is injured as a result of another's actions or omissions has a duty to reasonably mitigate his own damages. If a plaintiff may require a surgery as the result of another's acts or omissions, then the test of reasonableness, and thus that plaintiff's mitigation of his damages, is whether a in a similar situation would have the surgery in question. Reasonableness is the guiding principle regarding course of treatment. If a course of treatment is experimental or even questionable as to its utility, then the plaintiff’s refusal to undergo the procedure is not unreasonable. See McGarrahan v. N.Y., N.H. & HR. Co., 171 Mass. 211, 219 (1898).

38 B) Reasonable efforts. In personal injury actions, the plaintiff must "use all reasonable efforts to effect a cure and . . . lessen the damages, and that he must use the care that a person of ordinary prudence would have exercised, in seeing that the amount of damages was cut down." Ouillette v. Sheerin, 297 Mass. 536, 543 (1937).

1) Objective test. Reasonableness is an objective test determined by what an average prudent person would have done in similar circumstances. See Baglio v. N.Y. Cent. R.R. Co., 344 Mass. 14 (1962). A defendant will not be held responsible for damages that are solely the result of the plaintiff's failure to mitigate. See Degener v. Gray Line, Inc., 331 Mass. 133 (1954).

C) Property damage. The duty to mitigate damage extends to cases involving property damage, but this duty extends only to those consequences that are deemed avoidable. See Brian v. B. Sopkin & Sons, Inc., 314 Mass. 180, 183-84 (1943); Fairfield v. Salem, 213 Mass. 296 (1913).

D) Monies spent. A plaintiff may recover any monies spent mitigating his damage. See Atwood v. Bos. Forwarding & Transfer Co., 185 Mass. 557, 558-59 (1904).

Punitive Damages

A) Requirements. In Massachusetts, punitive damages are only available to the extent that they have been specifically authorized and/or recognized. See Flesner v. Technical Commc’ns Grp., 410 Mass. 805, 813 (1991). In wrongful death actions punitive damages are recoverable in instances that the defendants conduct was malicious, willful, wanton or reckless or if the defendant's actions or omissions amounted to gross negligence. MASS. GEN. LAWS ch. 229, § 2 (2009).

B) Consumer Protection Act. The Consumer Protection Act allows for punitive damages up to three times the compensatory damage award

if the court finds that the use or employment of the act or practice was a willful or knowing violation . . . or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of was in fact unfair or deceptive.

MASS. GEN. LAWS ch. 93A, § 9 (2009).

1) MASS. GEN. LAWS. ch. 176D – Unfair Methods of Competition and Unfair and Deceptive Acts and Practices in the Business of Insurance. To prevail in an action for unfair settlement practices under MASS. GEN. LAWS. ch. 176D the plaintiff must show that the defendant (1) refused to pay claims without conducting a reasonable investigation based upon all available information and (2) failed to make a prompt, fair, and equitable settlement offer when liability had become reasonably clear. See O’Sullivan v. Hingham Fire Ins. Co., 2009 Mass. App. Div. 154, 9-10 (2009).

39 C) Caps. Generally speaking, Massachusetts does not have a cap on punitive damage awards.

D) Standard of review. The standard of review regarding an award of punitive damages requires that "a judge or an appellate court must scrutinize the relationship between actual damages and the award of punitive damages." Labonte v. Hutchins & Wheeler, 424 Mass, 813, 827 (1997).

E) Insurability. Allowing recovery of punitive damages would not serve the purpose of compensating the injured party. "Requiring an insurance company to pay punitive damages to the insured would not serve to deter wrongdoing or punish the wrongdoer; rather it would result in payment of punitive damages by a party who was not a wrongdoer." Santos v. Lumbermen's Mut. Ins. Co., 408 Mass. 70, 82 (1990).

Recovery and Pre-and Post-Judgment Interest

A) Prejudgment interest. MASS. GEN. LAWS ch. 231, § 6H (2009) states:

In any action in which damages are awarded, but in which interest on said damages is not otherwise provided by law, the clerk of the court shall add interest to the amount of damages awarded at the rate provided by MASS. GEN. LAWS ch. 231 § 6B [twelve per cent per annum from the date of commencement of the action] to be determined from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law.

B) Post-judgment interest. MASS. GEN. LAWS ch. 231, § 6B (2009) states:

In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages...consequential damages, or for damage to property . . . the clerk of the court [shall add] to the amount of damages interest thereon at the rate of twelve per cent per annum even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law.

Recovery of Attorney’s Fees

Attorney's fees may be awarded, specifically in cases that are found to be filed frivolously, or in bad faith. See MASS. GEN. LAWS ch. 231, §§ 6E, 6F, 6G (2009).

Currently attorney's fees have been awarded in certain categories of cases. See, e.g., Office One, Inc. v. Lopez, 437 Mass. 113, 126 (2002) (costs awarded by statute or court rule); Milford Power Ltd. P’ship v. New Eng. Power Co., 918 F. Supp. 471, 484 (D. Mass. 1996) (fees awarded in MASS. GEN. LAWS ch. 93A case where underlying allegation of unfair or deceptive business practice was the filing of a frivolous lawsuit).

Settlement Involving Minors

40 The Trial Court may review and approve a settlement for personal injury to a minor or incompetent person where any person has filed a petition for settlement approval signed by all parties . . . . Any party to a settlement of a claim of a minor or incompetent person, when such claim is not in suit, may initiate an action by filing a complaint and petition for settlement approval for the purpose of seeking the court's approval of the settlement under this section.

MASS. GEN. LAWS ch. 231, § 140C 1/2 (2009).

Taxation of Costs

"[C]osts shall be allowed to the prevailing party as of course unless the court otherwise directs." MASS. R. CIV. P. 54(d) (2010). If the Commonwealth is the losing party, they may only be liable for the prevailing party's costs if such an award is permitted by law. Id. Costs that are awarded as a result of judicial discretion may be taxed subject to a notice of five (5) days. Id.

Activities such as taking of depositions, witness travel including mileage allowances, service of subpoena, and deposition transcript fees, are all inclusive of costs that may be taxed by the clerk of the court. See MASS. R. CIV. P. 54(e) (2010).

Unique Damages Issues

Under the Massachusetts Consumer Protection Statute, a party that has been the victim of an unfair or deceptive business practice may be entitled to double or treble their monetary damages award, if the unfair or deceptive act or practice engaged in by the losing party amounts to a willful violation of MASS. GEN. LAWS ch. 93A. In order to allege a violation of MASS. GEN. LAWS ch. 93A, an aggrieved party must show that a commercial relationship existed between the parties and that the actions of one of the parties interfered with trade or commerce. The aggrieved party must also have suffered some monetary loss, exclusive of attorney's fees. MASS. GEN. LAWS ch. 93A, §§ 2, 11 (2009).

This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics. The compendium provides a simple synopsis of current law and is not intended to explore lengthy analysis of legal issues. This compendium is provided for general information and educational purposes only. It does not solicit, establish, or continue an attorney-client relationship with any attorney or law firm identified as an author, editor or contributor. The contents should not be construed as legal advice or opinion. While every effort has been made to be accurate, the contents should not be relied upon in any specific factual situation. These materials are not intended to provide legal advice or to cover all laws or regulations that may be applicable to a specific factual situation. If you have matters or questions to be resolved for which legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in the state for which you are investigating and/or seeking legal advice.

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