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parking metersThe existence of a pre-existing condition can be an important factor in a workers’ compensation case, but a pre-existing condition, in and of itself, does not necessarily mean that the matter will be resolved in the employer’s favor.

Under Massachusetts law, the work injury does not have to be the predominant cause of the injury for which the worker seeks workers’ compensation benefits. Instead, the decisive consideration is whether the work-related injury was a major cause of the worker’s disability.

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dark stairwellLandowners and business operators have certain legal duties to those who come onto their property for business purposes. This includes the duty to maintain the property in a reasonably safe condition.

However, those who enter another party’s property unlawfully are not necessarily owed the same duty of care. While the landowner does not have the right to intentionally or recklessly harm a trespasser, a trespasser cannot recover damages from a landowner for injuries suffered due to mere negligence on the landowner’s part.

Because of this important distinction, disputes can arise in premises liability actions regarding the injured person’s status as a business invitee or a trespasser.

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discovery of resources

The Massachusetts wrongful death statute provides a legal remedy for those whose loved ones have died due to the negligent, willful, wanton, or reckless behavior of a person or business. If a plaintiff is successful in a wrongful death case, he or she may be entitled to damages, such as the funeral and burial expenses of the deceased person, compensation for the loss of the deceased person’s companionship and counsel, and loss of the deceased’s net income.

Like other tort actions, wrongful death lawsuits are subject to a statute of limitations that limits the time period during which a claimant may file suit against the responsible party. Generally, that time period is three years, although a different length of time may apply in certain situations. (This is one of the many reasons that it is best to consult an attorney sooner, rather than later, in wrongful death and personal injury cases.)

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lung x-ray

A recent court decision focused on the Ortho Evra patch, a birth control option that prevents pregnancy by transferring synthetic hormones through the wearer’s skin.

While arguably more convenient than other forms of birth control, the patch is not without risks, including death.

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fresh milkIn order to adjudicate a claim, a court must have subject matter jurisdiction, personal jurisdiction, and venue. If subject matter jurisdiction is not present, the only remedy is dismissal of the case because the court lacks the authority to hear the case.

With regard to personal jurisdiction and venue, however, there is also the possibility of a transfer of the case to a more appropriate forum. This is especially true in the federal courts.

Recently, a corporation with deep ties to Massachusetts challenged the jurisdiction and venue of a lawsuit filed against it in a New York federal court.

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medical words

There are many ways in which a product can be deemed defective. Sometimes, only a single defective product results from a manufacturing error. In other words, something went wrong during the process of making the product.

In other cases, all of the products in a particular line are found to be defective due to a poor design or perhaps a failure to warn. Recently, a Massachusetts appellate court reviewed a trial court’s decision declaring a medical device defective due to its design and lack of a proper warning.

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large clockAbout a year ago, we shared with you a Massachusetts Court of Appeals decision in a malpractice case in which the issue was whether or not suit had been filed within the three-year statute of limitations set forth under Massachusetts law.

The intermediate appellate court decided that the case was timely filed under the continuing treatment doctrine. Since that time, however, the state’s highest court has reviewed the case and decided otherwise.

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sorrel mareReleases and waivers of liability are so commonplace these days that many people sign them without even stopping to consider the consequences. Perhaps they even doubt that such agreements will hold up in court if an accident does happen.

The truth is that a release or waiver is an important legal document that has the potential to forfeit considerable legal rights, particularly the right to recover compensation for injuries (or even a wrongful death) suffered due to the negligence of the individual, business, or government to which the waiver is granted.

Occasionally, the courts will find a reason to rule a particular release or waiver invalid, but, very often, these documents are upheld as legally binding upon the person who signed them. Thus, it is always a good idea to carefully consider whether the activity for which a waiver is required is important enough to forego your right to sue, should you be seriously injured because of another party’s negligence or carelessness.

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bottle and glass

Clearly, the United States Constitution guarantees the criminally accused the right to counsel. However, exactly when, and under which circumstances, that right first attaches is sometimes a point of contention.

Recently, Massachusetts’ highest court was called upon to revisit this issue as it concerned a defendant’s right to counsel regarding whether or not to submit to a breathalyzer test after being arrested for drunk driving.

In a previous case, the court had held that no such right exists, but the defendant pointed to a change in Massachusetts statutory law as a reason to change the common law as to this issue.

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small clock

Most people understand that there are statutes of limitations that govern the time that an injured person has to bring a claim in a court of law. There are numerous other issues of timeliness, however, of which the general public may be less aware.

One of those issues – the notice period for a medical malpractice lawsuit – was at issue in a recent appellate court decision.

Facts of the Case

In a case recently decided by the Massachusetts Appeals Court, Arsenault v. Bhattacharya, the plaintiff was a woman who sued her primary care physician, seeking redress for alleged medical malpractice in the treatment of the her wrists. The woman’s complaint was filed on October 21, 2013. The defendant first began treating her for carpal tunnel and cervical spondylosis with radiculopathy in January 2008.

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