Expert Testimony Not Required to Demonstrate a Nursing Home’s Care Fell Below the Standard

October 3, 2019

A United States District Court Judge ruled that plaintiff did not need expert testimony to establish that it was below the standard of care to leave a fall prevention plan unchanged at a nursing home in the face of an elderly man with a known history of repeated falls, suffering from dementia.

This case arose from a nursing home resident who fell out of his wheelchair and passed away at the hospital six days later. His daughter filed a lawsuit alleging, among other claims, the nursing home was negligent when it failed to establish and update a fall prevention plan in the face of decedent’s history of falling that was ongoing.

The District Court Judge first analyzed this case as a medical malpractice case and not a general negligence case as plaintiff had pled. The Court reasoned plaintiff’s claims involved nurse activities that were covered under the Massachusetts regulations. In a medical malpractice claim, one must demonstrate a health care provider’s care fell below the acceptable standard of care, and that deviation from the standard of care was the cause for the injuries suffered. Plaintiffs use experts within that particular health care field to establish the standard of care and whether the care provided fell below this standard. In this case, plaintiff would need a nurse expert to provide this testimony. Because plaintiff’s expert provided testimony related to the standard of care applicable to nursing home administration, and not nurses, the Judge dismissed all theories of negligence except the failure to establish and update a fall prevention plan. This is because as the Distract Court Judge stated “[a]n expert is not required for the jury to conclude that it was negligent to do nothing in terms of [decedent’s] fall plan for almost one year, though he regularly continued to fall.” Aside from a new holding that an expert is not required under circumstances where the nursing home failed to take any action, this case illustrates the importance of retaining attorneys experienced in this field to allege the appropriate theory of liability.

Flynn Wirkus Young Represented at Shaw Fund For Mariners’ Children Luncheon in New Bedford

September 12, 2019

FWY was represented today at an informational luncheon which introduced the Shaw Fund for Mariners’ Children to area medical providers and social outreach groups in the New Bedford Community. The Shaw Fund is an important resource for fishermen and their dependents.  FWY Client Coordinator Jim Comfort has been able to access the foundation’s resources for a number of our clients in the fishing industry for invaluable assistance.

About the Shaw Fund for Mariners’ Children
The Shaw Fund for Mariners’ Children is a private foundation dedicated to supporting New England fishermen and others who work at sea. Established in 1853, The Shaw Fund has been providing financial assistance and resource and referral services to mariner families residing in Massachusetts, Maine and New Hampshire for over 150 years. For more information check their website.

Can Lack of Memory Qualify A Witness as Unavailable?

August 26, 2019

Massachusetts Supreme Judicial Court Adopts New Evidentiary Rule That Lack of Memory Might Qualify A Witness as Unavailable

The Supreme Judicial Court adopted proposed Massachusetts Rules of Evidence 804(a)(3) as common law which allows a declarant (person making a statement out of court), in a civil case, to be deemed “unavailable” if they testify to lack of memory about the subject matter in question.

Plaintiff filed a medical malpractice claim against defendant who performed a hysterectomy.  After the surgery, plaintiff felt pain, numbness and tingling in her left leg and complained to the third-year medical resident who was present in the operating room.  In response, the medical student stated that during the surgery it was difficult positioning plaintiff’s leg and admitted he may have leaned against her leg during the surgery. Years later in the medical resident’s deposition, he had no recollection of the surgery or his statements.  Plaintiff signed an affidavit recounting these statements but defendants did not want them entered into evidence at trial and filed a motion in limine to exclude the statements as hearsay (out of court statements offered for the truth of the matter asserted), which the superior court granted.

Plaintiff filed a motion for reconsideration arguing these statements could come in through plaintiff’s testimony as either an exemption to the rule against hearsay made by an opponent party’s agent under Mass. G. Evid. § 801(d)(2)(D); or as statements against interest by an unavailable declarant under Mass. G. Evid. § 804(b)(3).  The Judge still denied.

Plaintiff appealed and on its own initiative, the Supreme Judicial court transferred the case from the appellate court. Certain exceptions to the rules against hearsay are conditioned on the declarant (person making the statement) being unable to testify. Under the Federal Rules of Evidence 804(a)(3), a declarant can be deemed unavailable if they testify to not remembering the subject matter.  The exceptions to hearsay indicate a preference for live testimony, but recognize that in certain circumstances, hearsay of a certain quality, is preferred over the loss of evidence. Concern over the whether the loss of memory is legitimate would be minimized by the fact that the declarant must testify to the lack of memory and allows the judge the opportunity to determine the credibility as a preliminary question of fact.  The Supreme Judicial Court joined an overwhelming majority of other states and recognized a new rule, that the declarant’s lack of memory was a means to establish unavailability.  The case was vacated and remanded to the superior court for a new trial since the statements should have been admitted as statements against interest by an unavailable witness.  Hedberg v. Wakamatsu, 482 Mass. 613, 126 N.E.3d 956 (2019)

W-2 Employee or IRS 1099 Independent Contractor: What Are You and Why Does it Matter?

July 30, 2019

Often times employers classify an “employee” as an “independent contractor,” for reasons that may center on financial gain (avoiding the payments of benefits and taxes) and to avoid exposure for liability of that person’s negligence.  If a company has the green light to skirt liability for their agent’s negligence simply based on their own (often times unilateral and self-imposed) designation, the agent themselves could be left holding the bag and/or be personally liable for issues that arise from their work on a jobsite.

This misclassification and the ramifications of the same are inherently important to many of FWY’s clientele, such as workers in industries regulated by the Occupational Safety and Health Administration (OSHA).  This includes, but is not limited to, the fields of construction and maritime.  You may be reporting to work every day unsure of your classification.  If you’re being paid by an IRS Form 1099, your employer will most likely deem you an “independent contractor.”  Since many of our clients put themselves on the line every day by working in these demanding, often dangerous fields, it is imperative to let those workers know that they may have legal grounds to challenge any misclassification.

Recently, a compliance safety and health officer for OSHA inspected a residential construction worksite in Sylvania, Ohio. J & M Miller Construction (“J & M”), a limited liability company based out of Fort Wayne, IN, was working on the site, and it had been alleged that some of J & M’s “employees” were violating various OSHA regulations.  The OSHA inspection resulted in citations for serious violations for failing to provide adequate/necessary fall protection (29 CFR 1926.501(b)(13)); failing to provide a training program regarding fall hazards (29 CFR 1926.503(a))); failing to provide adequate eye protection (29 CFR 1926.95); and failing to ensure that each scaffold was at least 18 inches wide (29 19226.501(b)(13).

J & M argued that they had no “employees,” but rather “independent contractors,” for whom they were not responsible for supervising.

While investigating J & M, compliance officers discovered that Mr. Miller was referred to as the “boss.”  The officer further obtained and reviewed an Independent Contractor Agreement between a general contractor (“GC”) and J & M which specified that J & M was to complete the job with their own “employees,” and also that J & M agreed not to assign or subcontract any portion of the work without the GC’s express consent.

The administrative law judge in the J & M matter rejected J & M’s defense, and instead balanced a number of factors (including but not limited to who is in charge and who provided direction).  It was held that there is a “totality of the circumstances” test that must be employed to determine whether an individual working for a company is an employee, or independent contractor.  As such, a mere agreement to be considered an independent contractor is not one of those circumstances.

You may be someone who is reporting to work every day and unsure of whether you, yourself could be held liable for a mistake made.  You may also be someone who is looking for work and has been told that you must sign something along the lines of an Independent Contracting Agreement, or told that you are an independent contractor because you receive a 1099 form as opposed to a W-2.  These actions may very well be violations of applicable Federal and/or state laws (MA state courts have recently made agent-favorable changes to the Independent Contractor Statute as well).

If your place of work has denied coverage to you because they deem you an “independent contractor,” or if you have been declined work because you refuse to sign an agreement akin to the one highlighted herein, give FWY a call today.

Mike Flynn Speaks at Short Line Railroad Association’s Liability Conference

July 18, 2019

Mike Flynn, FWY’s founding partner and lead trial counsel, recently was the featured speaker at the Short Line Railroad Association’s 26th Annual Liability Conference which was held in Williston, VT.  The conference, attended by short line railroads, vendors who service them and their insurers, focuses on legal issues that impact railroad liability and risk management matters.

Mr. Flynn’s presentation, which was given in conjunction with a representative of the FRA (Federal Railroad Administration), focused on federally mandated grade-crossing inventory forms, more specifically how a railroad’s providing incorrect, inaccurate or incomplete information on these inventory forms can expose it to liability in the event that an accident takes place at the grade-crossing to which the inventory applied.

During the FRA’s portion of this presentation, the law pertaining to these inventory forms was discussed, including reference to “The Railroad Safety Improvement Act of 2008”, which required, in addition to other matters, that railroads and the states in which the railroads are located, take on joint mandatory responsibility for filling out and periodically updating their grade-crossing inventory forms. This act also established deadlines for doing so and also amended both 23 US Code § 130 and 49 US Code § 20160 pertaining to, respectively, state’s and railroad’s inventory form obligations.

During Mr. Flynn’s portion of the presentation, he discussed a case that he recently tried in Vermont that involved a grade-crossing accident in which the injured plaintiff’s theory of liability was based in part on incorrectly filled out inventory forms. The railroad in Mr. Flynn’s case had inaccurately identified the crossing as private (versus public) on an inventory form which was prepared just one month before the accident in question. Mr. Flynn discussed how this issue became relevant at trial and how he was able to respond to and ultimately defeat this claim. During the trial, which lasted nearly a month in January 2018, the plaintiff’s lawyer asked the jury to award $51 million including a significant amount in punitive damages. After hearing Mr. Flynn’s arguments in the case, and a short period of deliberations, the jury ultimately rendered a defendant’s verdict entirely exonerating Mr. Flynn’s railroad client.

The case was thereafter appealed to the Vermont Supreme Court and which, after hearing arguments in October 2018 (which, coincidentally were held at the Proctor High School in Proctor, VT) affirmed the verdict in all respects.


June 26, 2019

FWY devotes a great portion of our practice to representing injured fishermen. Unlike our competitors, we are not afraid to go the extra mile for our clients and aggressively pursue all avenues of recovery available to them. There are many aspects of admiralty law that, if pursued correctly, can help injured fishermen level the playing field against unscrupulous vessel owners and the gigantic insurance companies that are oftentimes more interested in delaying and obstructing a fisherman’s lawful recovery.

One of these procedures allows an injured fisherman to arrest the vessel  upon which he or she was injured.  Recently, in a case involving one of our injured fisherman clients, we secured the arrest of the vessel on which he was injured and are currently trying to bring the case to favorable resolution.

If you are an injured fisherman, or know one, please don’t hesitate to call us to talk about this and other provisions in the law which might help you get what you deserve if you are injured while working as a commercial fisherman.

2019 CLM Massachusetts Chapter Networking Event

June 4, 2019

Please join local chapter president Lori Wirkus and the Massachusetts Chapter on June 20, 2019 for an early summer Networking Event at THE BLACK BOX in Franklin, Massachusetts, conveniently located steps from the MBTA commuter rail, I-495 and I-95, with free parking.  Spirits, food and exciting live music and entertainment will be provided. Great connections with your CLM colleagues guaranteed!

For more information about the Claims & Litigation Management Alliance or to register for this event check please link here.


June 3, 2019

FWY Prevails in Motion for Sanctions In Favor of Fisherman

April 19, 2019

Standing up for our clients’ rights.  That’s what we do here at FWY.  Often times our clients are injured due to the carelessness of their employers or other unsafe workplace activities.  Our clients are also frequently subject to workplace discrimination and retaliation simply because they were injured through no fault of their own.  Bringing these wrongdoers to justice is central to our mission.  Sometimes, to make matters even worse, the attorneys hired by the defendants in our cases employ unscrupulous litigation tactics to try to make the situation even more unfair.  It is paramount to what we do to step in and prevent this from happening by leveraging all of the protections that the law provides.

Recently our firm prevailed in a motion for sanctions we were forced to pursue against these types of unscrupulous defense tactics.  The situation involved a vessel owner who withheld crucial documentation in violation of procedural rules and then tried to sandbag our client at his deposition by springing the documents on him without his prior knowledge.  Our attorneys immediately shut down the deposition and sought the intervention of the court who agreed with us that this type of conduct was sanctionable and issued an order awarding equitable relief as well as a monetary penalty.

Please contact us to learn more.

Partner Michael B. Flynn Earns 2019 AV Preeminent® Judicial Rating

April 16, 2019

FWY is proud to announce that Founding Partner Michael Flynn has been recognized with a 2019 AV Preeminent® Judicial Rating. This rating is earned by attorneys with the highest possible ranking in both legal ability and ethical standards, reflecting the confidential opinions of members of the Bar and the Judiciary.  It is a testament to the fact that judges rank him at the highest level of professional excellence. Congratulations Mike!