William D. Kickham
William D. Kickham
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Usually, most of the legal stories giving rise to posts on this blog originate in or have to do with cases and legal issues in Massachusetts. However, a tragic incident at Yale University earlier this week, illustrates the importance of product liability law, and the impact it can have on making products safer for the Americans who use those products.

Scituate, Massachusetts resident Michele Dufault, a bright Yale University student, was killed earlier this week in a horrific incident involving a lathe at a machine shop on campus. Dufault, a senior at the Ivy League school who was majoring in physics and astronomy, was found at Yale’s Sterling Chemistry Laboratory at around 2:30 AM Thursday by other students in the building. The students immediately called New Haven police, but it was too late. A statement from Yale University president Richard C. Levin did not reveal whether Dufault died in the lab or later at a hospital. Nor was there a statement as of Friday evening, April 15, as to whether Dufault had been alone in the lab, or not.

This incident must have been absolutely horrific. I remember working on a lathe in high school machine shop. When I look back on those times, I’m surprised that I wasn’t injured, as well — this machinery is very powerful, and extremely dangerous. For those unfamiliar with machine shop equipment, a lathe is a machine that is used to shape usually straight lengths of metal or wood by spinning it at extremely high speeds. (So fast that when spinning in the lathe, the length of wood or metal would look like a blur to the naked eye.) Carving tools are applied to the edges of the spinning wood or metal, to shape the material. By all available accounts of the incident, Ms. Dufault’s hair became caught in the lathe, pulling her head into the machinery.

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Yes, you read the title of this post correctly: Transocean Ltd., the company that owned the Deepwater Horizon Gulf Oil Rig that blew up last year and proceeded to spew at least 200 millions of gallons of oil into the Gulf of Mexico, is actually awarding financial bonuses to its senior executives for – of all things – the “best year in safety performance in our company’s history.”

I’ve seen a lot of examples of corporate arrogance, lies, greed and deceit, but this has to rank up there with some of the worst. This company contributed to probably the worst environmental disaster and toxic tort this nation has ever seen, with the full effects not yet even being fully measured or fully felt. Its negligence, documented as being fueled by corporate cost-cutting, resulted in the deaths of 11 oil rig workers. It partnered with two other companies – BP PLC and Halliburton, Inc., who flagrantly and consistently lied to the public and to the government about the true nature and extent of the disaster. It contributed to thousands of people losing their jobs or their careers in the commercial fishing and hospitality industries, who are still suffering economically – and it has the audacity to hand out millions in cash bonuses to its executives. As has been said before, “You can’t make this stuff up.”

In regulatory papers filed with the Securities and Exchange Commission (SEC) last Friday Transocean noted “the tragic loss of life” in the Gulf when the rig operated by BP PLC exploded last April. Large of them, wasn’t that? Despite the devastating fiasco that occurred on their rig, the company got out its bean counters, and found a way to claim that it still had an “exemplary” safety record, because supposedly Transocean “met or exceeded” certain internal (i.e., its own) safety objectives regarding the frequency and severity of its accidents. “Safety” accounts for approximately 25 per cent of senior executives’ total cash bonuses at Transocean. Apprarently, greed and negligence account for the other 75 per cent. CEO Steve Newman’s bonus (alone) last year amounted to $374,062. In case you’re curious, the total pay works out as follows: A base salary of $850,000; “perks” of $622,057, which includes housing and vacation allowances (and other things); on top of the $374,062 bonus. Folded into this figure are also Transocean stock options valued at $1.9 million and deferred shares valued at $2 million.

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While this post is about product liability law, it’s also about the age-old story of corporate greed and deception. Ever hear of on over-the-counter cold remedy called Zicam? Most people have. – Matrixx Initiatives Inc. and Zicam L.L.C., were jointly the developers, manufacturers and distributor of this product. Zicam was marketed with the claim that it could shorten the symptoms of the common cold, if taken at the onset of symptoms. The zinc gluconate formulation generated approximately 70% of the company’s sales. While the product used to be manufactured and sold as a nasal gel, it’s now sold as an oral spray. There’s a reason for that. And that leads us to a typical story of corporate deception.

It seems that in the late 1990’s, Matrixx became aware from several sources (it’s alleged,) of a very serious side effect of using Zicam. That serious side effect is called “anosmia“, which is the medical term for loss of the sense of smell. In 1999, it’s alleged that a Matrixx staffer was told by the neurological director of a research organization called the Smell & Taste Treatment and Research Foundation, Ltd. that a “cluster of patients” had suffered anosmia after using Zicam. Three years later, as reports of these side effects grew, Matrixx’s Vice President for Research and Development contacted a scientist at the University of Colorado Health Sciences Center , allegedly was told of the results of previous studies linking zinc sulfate [a slightly different zinc compound] to loss of smell. This scientist later buttressed these initial reports, by forwarding to Matrixx with further abstracts, confirming zinc’s toxicity.

About a year later, a colleague of that scientist (from the University of Colorado Health Sciences Center,) observed 10 patients suffering from anosmia following Zicam use. These scientists then prepared a poster for display at a meeting of the American Rhinologic Society, in connection with a substantive presentation they were going to make at this medical association meeting. After learning of the scientists’ plans, Matrixx warned them that they were not allowed to use the Matrixx company name or the product name (Zicam.) As a result, the scientists deleted this information from their posters and presentation.

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Too often within the escalating debate over “tort reform“, the facts take a distant back seat to ever more shrill demagoguery.

It seems that all we ever hear from proponents of tort reform, and their Republican lapdogs in Congress and in State Houses across the country, are noxiously recycled claims that liability insurance premiums are supposedly caused by “frivolous lawsuits, run amok.” These liability insurer-funded interests claim that if we just enact tort reform (translation: If we decimate our civil justice system,) all kinds of liability premiums, from auto insurance to homeowners insurance to medical malpractice insurance, would drop and stay down. Think again, America: It’s not so. And it rarely, if ever, has been. These claims are the worst form of legislative bait-and-switch perpetrated on the American public. And the driving forces behind tort “reform” – the liability insurance industry – knows it.

Though I have to hand it to them when it comes to campaign strategy planning, because they also know something else: They know that they can’t be the ones to most openly make these arguments, or they’ll appear too self-interested. After all, they’re the ones who stand to reap millions in premium that they’ll never pay out to injury victims, if the doors to the courthouse are forever locked. The best strategic tactic in this case? Get other groups to “front” these claims. The best groups to get to do this? Their customers, who are being gouged by the high liability premiums their carriers charge them. Who are those customers? Doctors, business owners, commercial property owners, private property owners, homeowners, and anyone who owns a car. Anyone who buys liability insurance of almost any kind. All these groups are angry, motivated forces who can be (quite literally) conned into believing that the reason their premiums are so high, is a “lawsuit crisis.” Not a bad strategy, from a public affairs campaign standpoint. Displaced anger is precisely what’s fueling the Tea Party movement, and it works. Just ask any master of misinformation (Karl Rove comes to mind.)

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A Suffolk Superior Court judge has awarded more than $6.7 million to the family of a Northeastern University student who died after falling down a set of stairs at a Boston bar in 2007, following a night of drinking. What’s surprising about the award in this Massachusetts premises liability case is that the judge’s award followed a prior jury verdict in this case, where the jury ruled that although the bar violated the city building code, it was not liable for the 21-year-old’s death.

Jacob Freeman died in a fall down a staircase at the Our House East Restaurant on Gainsborough Street in Boston in the early morning hours of April 1, 2007. Freeman’s family sued the bar, Gainsborough Restaurant, Inc., claiming that it was negligent in both its maintenance of the property and the staircase on which Freeman fell down, as well as alleging that the bar was in violation of the City of Boston building code, as well as other licensing violations. Approximately three months ago, a civil jury returned a verdict which said that while the bar had indeed violated building code mandates, it was not liable for Freeman’s death. To Freeman’s family, that verdict seemed contradictory – and it was. In all likelihood, the jury did not like the fact that Freeman’s blood alcohol level at the time of the accident was quite high, and it felt that if it held the bar liable and awarded damages, it would be in essence “rewarding” bad behavior.

As a Boston, Massachusetts accident lawyer, I find this kind of reasoning specious, given the evidence in the trial. Some of that evidence included the following: 1) The staircase lacked required hand rails; 2) The staircase was poorly lit; 3) It did not have a landing, among other hazards; 4) Management of the bar was aware that patrons had used the stairs on prior occasions; and 4) Freeman’s view of the staircase was obscured by vinyl stripes.

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In my previous post on this subject, I noted how President Barack Obama had raised the subject of “medical malpractice reform” in his State of The Union speech last week, and of how a Massachusetts medical malpractice case that just settled this week, illustrates how severe and unjust typical “tort reform” measures would have been in this case.

Just how bad was the medical malpractice alleged in this case? Consider these facts:

• Rebecca was prescribed Seroquel – a powerful antipsychotic commonly used in very serious, and primarily obvious, cases of psychosis.

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President Barack Obama, in his State of The Union speech Monday evening, made another reference to the supposed need for tort reform; to ‘control the rise in health care costs.’ I bristle at these kinds of mentions, for two reasons: 1) They demonstrate how successful liability insurers have been in their propaganda campaign to convince everyone from the person on the street to the President of the country, that increases in the cost of health care and in the cost of liability insurance, are due to “frivolous lawsuits.” 2) The average person who has not been the victim of medical negligence or has not known someone who has been a victim, has absolutely no idea of the impact that these draconian ideas of limiting a plaintiff’s financial recovery in court, will wreak on such victims’ lives.

And they need to know just how bad “tort reform” really is. Tort reform isn’t a single concept or one single law. Rather, it’s an amalgam of ideas and laws that are designed to drastically alter the way our civil justice system works. Many of these “tort reform” proposals would place “caps” on jury awards for pain and suffering, as well as death that results from a doctor’s or a hospital’s medical negligence. Arbitrary caps like this are a liability insurer’s dream – and an insult to anyone else who has suffered due to medical negligence. I’ve blogged previously about this subject, but it can’t be said enough: Arbitrary and formulaic caps on damages, and restrictions on certain types of lawsuits, represent a horrible assault on this nation’s civil justice system. Furthermore, since lawsuits are not a major factor in determining liability and medical malpractice premiums, these inequitable and unjust ideas will not reduce liability insurance premiums, or health care costs.

If anyone needs proof of just how unjust “tort reform” is in the real world, I offer the following. A Massachusetts medical malpractice case that was filed in Suffolk County a few years ago, and that settled this week, illustrates just how horrific some of these cases can be, and of how proposals to enact “caps” on jury awards and damages, are scathingly unjust. Consider the following facts in this case:

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In my previous post on this subject, I wrote of how the law governing liability for injuries suffered on someone else’s property due to slipping or falling on snow or ice, has recently undergone some major changes. The changes come not from the Massachusetts Legislature, but the Massachusetts Supreme Judicial Court.

Thankfully, those changes have finally come. In Papadopoulos v. Target Corporation, the SJC eliminated the ancient distinction between “natural” and “unnatural” accumulations of ice and snow discussed in my last post, terming the distinction between natural and unnatural accumulations of ice and snow a “relic” derived from old cases, which “has sown confusion and conflict in our case law.” The Court’s ruling stated that “We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to ‘act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.'” (emphasis added.) This means that all property owners – homeowners or commercial – must take reasonable measures to minimize as much as possible any safety hazards created by snow or ice – regardless of whether that snow or ice has been previously moved or altered in any manner.

Very importantly, the SJC applied the new rule “retroactively”, to any cases that are currently pending before state court dockets, or that have yet to be filed. This is so even if the injury has already occurred, so long as those cases have not proceeded to final judgment or the statute of limitations on the action (typically three years) has not expired. That’s it. End of discussion. From this point forward, Massachusetts will follow the same legal principles as the other forty-nine states in this country.

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In the wake of last week’s major snowstorm, you won’t read a more timely or important post than this one – at least on the subject of Massachusetts personal injury law. The reason is that very recently, the Massachusetts Supreme Judicial Court (SJC,) issued a landmark, critical decision in the area of property owner liability for injuries caused by slips and falls due to snow and ice.

The case name is Papadopoulos v. Target, 457 Mass. 368 (2010.) This is a landmark decision because in it, the SJC completely changed the legal standards and rules that are applied in these types of Massachusetts premises liability cases. For almost 100 years previous to this decision, the legal question of whether or not a landowner – a homeowner or commercial property owner – was liable for another person’s injuries due to a slip or fall on snow or ice, was extremely complicated and often murky.

Why? Because Massachusetts common law previously required judges and juries to make a complicated distinction between “natural” and “artificial” accumulations of snow and ice. What’s the difference? For almost 100 years, that was a good question – and one that judges themselves (trial and appellate) often had a hard time answering.

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I love to report and comment on stories like this: A Massachusetts personal injury case that results in solid justice to the plaintiff.

Readers of a certain age and above will remember that back in the late 1970’s and early ’80’s, tobacco companies would literally give away samples of their cigarettes to the public. They had been doing this since at least the early 1960’s. I’m dating myself here, but in the mid-’70’s, I can clearly remember riding the Green Line into and out of Boston during those years, and seeing young, healthy looking men and women standing outside subway entrances at peak commuting hours, handing out small sample packs of cigarettes to almost anyone who walked by. These tobacco company “hawkers” (usually college kids or recent grads trying to make a few bucks,) would hold trays of cigarettes samples (usually containing 4 or 5 cigarettes,) out in front of them, held by a strap around their necks. While downtown locations were usually the best fishing grounds for this activity, these hawkers could also be found outside nightclubs on weekend evenings, and at beach locations in the summer. Usually very attractive young women who could double as models, these hawkers conveyed beauty, youth, and health.

There was just one problem: What they were promoting was anything but healthy, and anything but beautiful. In point of fact, they were legal drug pushers, pushing a deadly, addictive product, for free, just to get people hooked on the nicotine. It was literally like handing out cocaine samples for free – and worse, they pushed these deadly products on anyone and everyone who walked by – usually without regard to age. If you were a twelve-year-old who looked 15, you got cigarettes. Fast forward about 35 years: A woman in her mid-40’s, Marie Evans, is dying of lung cancer. She remembers when her addiction began: At age nine, when these healthy-looking, tray-carrying cigarette hawkers regularly handed out samples of Newport cigarettes to her and other kids. She files suit against the manufacturer of those cigarettes, Lorillard Tobacco Co., of Greensboro, North Carolina, shortly before her death in 2002. This past month, in December of 2010, a Suffolk Superior Court jury awarded her estate $50 million in damages for negligence, and awarded her son $21 million, for her death due to lung cancer. Days later, the jury added another $81 million to the verdict, for punitive damages, bringing the total verdict against Lorillard Tobacco Co., to $152 million.

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