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In a Cape Cod criminal case, both the prosecution and the defense have certain obligations to provide the opposing party with evidence that may be used at trial. In particular, the government must provide exculpatory evidence – evidence that tends to show the innocence of the defendant.

Of course, this does not always happen, and sometimes post-conviction proceedings are filed years – or even decades – after it is finally discovered that the government failed to turn over a certain piece of evidence. Such a situation does not necessarily result in a new trial, since there are multiple factors that must cut in the defendant’s favor in order for such relief to be granted.

Facts of the Case

Under Massachusetts law, medical malpractice lawsuits are subject to both a statute of limitations and a statute of repose. The statute of limitations controls the time during which a claim may be filed after an action accrues, but the statute of repose allows a set amount of additional time in certain instances, including when the injured party is a minor.

Generally speaking, a person hurt by an alleged act of medical negligence must file a claim with three years of the negligent act, but those who are under the age of six years at the time of the act of malpractice have until their ninth birthday to file suit.

While in theory this gives an injured child up to nine years to file suit, there is an additional requirement that all malpractice claims must be brought within seven years of the wrongful act (including claims by young children).

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In the case of In the Matter of a Grand Jury Investigation, a certain law firm agreed to represent a client in April 2013. At the time, the client was under investigation by a grand jury, but an indictment had not yet been issued.

According to allegations by the Commonwealth, the client gave his cell phone to the law firm a couple of months later in connection with the firm’s representation of him. Nearly a year after the firm undertook its representation of the man, the Commonwealth sought judicial approval for a grand jury subpoena forcing the law firm to turn over the man’s phone. Continue Reading ›

Unfortunately, acts of negligence and medical malpractice are all too common in nursing homes. In an attempt to control costs associated with litigation, many long-term care facilities encourage patients and their family members to sign agreements to arbitrate any claims that arise from the patient’s care. The enforceability of these agreements has become a frequently litigated issue.

In the case of Barrow v. Dartmouth House Nursing Home, Inc., the plaintiff was a man who had signed an arbitration agreement on behalf of his elderly mother, then 96 years old, when she entered a nursing home for care. After his mother died at the facility, the plaintiff, acting as executor of his mother’s estate, sued the facility, alleging negligence, lack of informed consent, and breach of contractual, implied, and express warranties. He sought damages under the wrongful death statute, Mass. G. L. ch. 229, § 2.

At the request of the nursing home, the trial court compelled arbitration. The arbitrator found in favor of the nursing home. The plaintiff appealed the trial court’s order confirming the arbitrator’s decision. Upon consideration, the appellate court vacated the trial court’s order. Continue Reading ›

The process of bringing new medicines and treatment options to patients can be long and tedious. The Food and Drug Administration (FDA), the federal agency that governs the procedure by which new drugs and treatments are approved for use on patients, is supposed to protect consumers, but dangerous drugs  do still make their way into the marketplace.

Remember Fen-Phen? Hailed as a miracle diet drug back in the 1990s, it was later discovered that fenfluramine/phentermine had dangerous side effects, including potentially fatal heart valve problems and pulmonary hypertension. Billions of dollars were awarded to people who were hurt by the bad drug.

In the recent case of Zeman v. Williams, the United States District Court for the District of Massachusetts took a look at the drug and medical treatment industry from a different perspective, namely from the point of view of a patient who participated in an unsuccessful clinical trial to test a possible therapy option for young-onset Parkinson’s disease. Continue Reading ›

We all know that life seems to flow a little more easily when we get along with our neighbors. Unfortunately, that is not always possible. At the Law Office of John C. Manoog, we have handled many cases between neighbors in which the issue was an injury to a child, a dog bite, or a fall on a neighbor’s property.

Neighbors File Suit Alleging Invasion of Privacy and Other Claims

In a recent lawsuit between neighbors, the Massachusetts Supreme Judicial Court held that two neighbors had stated a claim for invasion of privacy against each other. In the case of Polay v. McMahon, the parties lived across the street from each other. As a result of an ongoing, escalating dispute between the neighbors, the plaintiffs filed a lawsuit against the defendant, alleging abuse of process, malicious prosecution, intentional infliction of emotional distress, negligent infliction of emotional distress, and invasion of privacy.

The defendant filed a motion to dismiss in the trial court pursuant to Mass. R. Civ. P. 12(b)(6) and a special motion to dismiss under the SLAPP statute, Mass. Gen. Laws ch. 231, § 59H. The trial court allowed the motion to dismiss as to all claims, as well as the special motion to dismiss with respect to the abuse of process and malicious prosecution claims. The special motion was denied as to the other three claims. The defendant then successfully requested costs and attorney’s fees. The plaintiffs appealed the dismissal of the invasion of privacy claim, the intentional infliction of emotional distress claim, and the award of attorney’s fees.

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Have you been injured in a Cape Cod vehicle accident? Our motor vehicle accident attorneys are dedicated to effectively representing those whom the negligent acts of others have injured. The physical, psychological, and financial damages from an auto accident can have a devastating impact. Worrying about financial damages from an accident can be stressful. It is important to have an attorney that will maximize your compensation so that you can focus on recovery.

Even if another driver seems to be at fault, they may not have the assets, money, or income to adequately compensate your loss. However, there may be other negligent parties, not at the scene of the accident scene, that may also be a source of compensation.

For example, an auto repair company may be liable for negligently causing a vehicle to be unsafe. An employer may be vicariously liable for the negligent driving of an employee within the scope of employment. A motor vehicle manufacturer may be liable for the negligent design of a vehicle. Even someone knowingly allowing an unfit driver operate a vehicle may be liable under a theory of negligent entrustment. Continue Reading ›

According to court documents, a Massachusetts Appeals Court has ruled that a products liability lawsuit involving transvaginal mesh can move forward. The ruling reverses a lower court decision dismissing the plaintiff’s claim because she had failed to plead sufficient facts to support her claim. According to the lawsuit, the plaintiff suffered serious complications from mesh erosion, pain, and vaginal scarring. If you or a loved one has been injured by a defective product, you are encouraged to contact a local products liability attorney.

The transvaginal mesh was designed and manufactured for women who suffered from stress urinary incontinence (SUI) and pelvic organ prolapse (POP). According to Harvard Medical School, SUI and POP are caused by a weakening of the pelvic floor muscles. The transvaginal mesh is a synthetic mesh that is implanted through the vagina — transvaginally — to help support the pelvic floor muscles.

The Appeals Court judge found the plaintiff had alleged such facts, adequately detailed, so as to plausibly suggest an entitlement to relief. The plaintiff’s claim cited a 2008 FDA Public Health Notification describing thousands of complaints describing adverse affects from transvaginal mesh including pain, bleeding, infection, mesh erosion, and the recurrence of prolapse or incontinence. The plaintiff claimed that she suffered recurrent pelvic pain and had undergone multiple restorative surgeries as a result of her transviginal mesh. The judge recognized that these types of complications are among those specifically identified in the 2008 FDA notification and that the plaintiff sufficiently claimed injuries as the result of a defective product. Continue Reading ›

Many people in Cape Cod have pets.  The American Veterinary Medical Association (the “AVMA”) compiles statistics on pet ownership throughout the United States.  According to the data, 50.4% of households in Massachusetts own a pet; of that number, 23.6% have a dog.  While dogs bring much pleasure to the families who own them, there are certainly risks associated with pet ownership. One of the main risks is that sometimes dogs bite people.

A dog bite can cause moderate to serious injuries, ranging from cuts and scratches to more significant damages. In Massachusetts, dog owners are strictly liable for bites.  Essentially, this means that when a person’s dog bites someone else, the owner is legally responsible even if the dog has never attacked another person in the past. If you or someone you know has been bitten by a dog, you are most likely entitled to compensation for your injuries and losses. In order to maximize your recovery, it is important to contact a local injury attorney who is experienced handling dog bite cases.

A recent Massachusetts Supreme Court decision addressed the extent of insurance coverage for a dog bite claim.  In this case, the insured couple purchased a homeowner’s insurance policy with a $500,000 personal liability limit.  The policy included an Animal Liability Endorsement that limited coverage to $25,000 for each animal bite claim.  Interestingly enough, both the insured and the insured’s agent stated that they mistakenly believed that the policy did NOT contain this limitation of liability, but neither one mentioned it to the other. In fact, the parties did not discuss coverage for dog or animal bite claims. Continue Reading ›

As the summer months are rapidly approaching, people and their pets will spend more time outside, especially those who live and vacation in Cape Cod. And while most experiences with dogs are welcomed and enjoyable, there are certainly frightening experiences as well, with dogs who are not on a leash and/or exhibit the propensity to bite. Although national data indicates that the number of incidences of dog bite claims has remained relatively stable, the value of those claims has risen, accounting for more than one-third of all money paid out in homeowners’ liability claims. If you or someone you know has been injured in a dog bite incident, it is important to contact a local injury attorney with experience handling such cases.

This new trend is something that insurance companies are taking notice of. According to the Insurance Information Institute, the number of dog bite claims over the past 10 years has ranged from the low 14,000s to the high 16,000s, keeping in mind that the number of incidences actually decreased from 16,695 in 2011, to 16,459 in 2012. Over the same decade, however, the value of dog bite claims rose by 51%. Significantly, the average payout for a dog bite claim increased by 55%, from $19,162 in 2003, to $29,752 just last year.

Claims for dog bite injuries typically fall under the dog owner’s homeowner’s insurance policy. Owning a dog that has a history of biting someone can actually increase the policy rates. In fact, it has been reported that certain homeowners have been refused insurance coverage because they own “high-risk” breeds of dogs, such as rottweilers and pit bulls. Further, while some states have banned this practice of “breed profiling,” many states permit an insurance company to cancel or deny coverage if a particular breed lives in the home. In a recent incident, a woman from Roslindale, outside of Boston, was bitten in the hand while attempting to break up a fight between two pit bulls.

According to a news report, the 52 year-old woman living in an apartment building was awakened one evening by growling sounds. She found two pit bulls – that also lived in the building – fighting outside. The dogs are five and 13 years old, respectively. After separating the dogs, the younger one bit her as she attempted to pull it inside. The woman called animal control officers, requesting that the dog that bit her be removed from the premises. She was taken to Brigham and Women’s Faulkner Hospital for her injury and the officers took custody of the five year-old pit bull. It is unclear whether the she was the owner of either dog.

There is no real defense in Massachusetts when a dog bites someone. The dog’s owner is responsible. Even in cases where someone is injured in trying to escape a threatening dog, the owner can be held responsible for any injuries that occur. Dog bite injuries can cause life-long physical and psychological damage. If you have been the victim of a dog bite injury or are the owner of a dog who bit someone, contact our injury firm as soon as possible. We will be able to offer you dedicated and knowledgable assistance in all aspects of a dog bite case.

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