Wrongful Death
Massachusetts Law Bans Highly-Flammable Floor Sealer
Massachusetts has banned the commercial use and sale of lacquer sealer, a highly flammable wood floor finishing product linked to deadly home fires.
Gov. Deval Patrick signed the safety bill into law this week. The bill had strong support from MassCOSH (the Massachusetts Coalition for Occupational Safety and Health), which convened a Floor Finishing Safety Task Force to investigate the problem.
The task force was convened after a 2004 house fire in Somerville claimed the lives of two Vietnamese floor sanders and burned their co-workers. Shortly after, a Vietnamese flooring contractor died in a Hull house fire. Both fires involved the use of lacquer sealer used in floor finishing.
“This groundbreaking law will save lives and end floor finishing fires that have caused so much pain and destruction,” said Marcy Goldstein-Gelb, executive director of MassCOSH. “We owe a great deal of thanks to the Governor and Legislature for recognizing these grave dangers and taking action to protect workers and residents.”
Following the three fatal fires, the Floor Finishing Safety Task Force issued a 2005 report stating Boston had seen 25 fires involving lacquer sealer over the 10 previous years and Needham had seen two in the prior year that threatened worker safety.
In the 2005 report, the task force recommended the state promote use of non-flammable water-based finishers to protect Massachusetts worker safety and prevent worker deaths.
The task force observed the problem of flammable lacquer sealer was targeting Massachusetts’ Vietnamese community, which has a large concentration of workers in the floor finishing industry.
The bill proposing the ban was jointly filed by state Rep. Martin Walsh and Sen. Patricia Jehlen.
Breakstone, White & Gluck of Boston is a supporter of MassCOSH and its work to protect Massachusetts construction workers and other employees.
To learn more, visit the MassCOSH website.
Read More
Massachusetts Bars Must Now Carry Liquor Liability Insurance
It’s always a tragedy when someone leaves a bar after a night of drinking, steps in his or her car, and causes a motor vehicle accident resulting in personal injury.
For years, that tragedy was compounded by Massachusetts law, which let bars and restaurants operate without liquor liability insurance. Like other businesses, Massachusetts restaurants and bars have traditionally carried general commercial liability insurance covering on-site problems, including slip and falls and other injuries. But this insurance offers no assistance to drunk driving accident victims.
In late May, Massachusetts lawmakers corrected this and passed a law requiring restaurant and bar owners to carry liquor liability insurance. Establishments must carry a minimum of $250,000 per person/$500,000 per accident coverage. In other words, policies must provide a minimum $250,000 for bodily injury or death of one person and a total of $500,000 per incident involving bodily injury or death.
Innocent victims of drunk driving accidents still face the traditional hurdles in proving their cases against bars. One hurdle is strong juror bias. Juries do not hesitate to hold the drunk driver responsible. But juries are often reluctant to blame a drinking establishment for over-serving a patron, even though the law is perfectly clear that a bar has a legal duty to not serve someone who is intoxicated.
Restaurants and bars seek to avoid liability for over-serving patrons, and they typically claim they did not recognize that the patron was intoxicated. The recent Massachusetts Appeals Court case of Rivera v. Club Caravan, Inc., 77 Mass. App. Ct. 17 (2010), reviewed the legal standards for “dram shop cases.” Generally the plaintiff must prove the patron showed outward signs of intoxication by the time he or she was served her last drink. However, circumstantial proof can also be sufficient. If the patron had consumed excessive quantities of alcohol, a jury can draw an inference that he would have been visibly intoxicated. So, where a patron is served fourteen drinks in two hours, as in the Rivera case, or was served six or more white Russians, as in another Massachusetts case, the circustantial evidence is strong enough.
Personal injury attorney Ronald Gluck called the new law “a step forward” for the safety of Massachusetts residents. “Restaurants and bars will want to have strong policies in place–and to follow them–not just to avoid liability but also to avoid large increases in their insurance premiums. The new liquor insurance law should help reduce drunk driving accidents in Massachusetts.”
Click here for the full text of the law.
Massachusetts Law Will Ban Text Messaging While Driving
Welcome news today as the Massachusetts Legislature has finally agreed on a new law that will make it illegal to text while driving. Once the bill is signed by the Governor, Massachusetts will be in line with twenty-eight other states that have already outlawed text messaging while driving.
This law comes in the wake of several tragic text message-based accidents. In May 2009, 62 people suffered personal injury after a Massachusetts Bay Transportation Authority trolley collided with another trolley because the driver was texting his girlfriend. In September 2008, a California commuter train engineer missed a stop signal while trading texts with a friend, leading to a train accident resulting in the wrongful death of 25 people. In addition, there have been several high profile motor vehicle wrongful death cases in recent memory which were caused by inattentive drivers who were texting as they drove.
The law has several other public safety improvements. The new law will require that older drivers renew their licenses in person and take an eye exam every five years beginning at age 75. Older drivers were involved in several serious car accidents in 2009 in Massachusetts. Further, the law will forbid anyone under the age of 18 from using a cell phone while driving.
Boston personal injury attorney David White said of the new law, “Distracted driving is a serious safety problem. The use of cell phones and text messaging are two of the biggest distractions for drivers. These new provisions will vastly increase the safety of Massachusetts roadways.”
A recent study found that texting while driving makes a person twenty times more likely to get into a car crash or near-crash. The problem is most severe for inexperienced drivers. It is hoped that this new law will raise awareness to this growing epidemic of serious personal injuries caused by careless texting motorists.
If You Have Been Injured By a Careless Driver
Breakstone, White & Gluck has successfully represented hundreds of victims of careless and inattentive motorists, including bicycle accident victims, truck and train accident victims and car accident victims. Our firm remains committed to all efforts by the legislature and law enforcement agencies to raise awareness to the serious risk of injury caused by careless motorists. If we can help you or a family member with your claim for serious injuries, we would welcome the opportunity to evaluate and handle your claim. Contact us toll-free for a free consultation. 800-379-1244.
Massachusetts Workers Rally for Safety and to Commemorate Fallen Workers
Massachusetts workplace accidents and the lives they claim were the focus today at the Workers’ Memorial Day Commemoration and Rally at the Massachusetts State House. The event honored the 62 workers killed on the job in Massachusetts last year. Organizers called for workplace safety improvements to prevent more injuries and deaths.
The names of the victims of workplace accidents were read aloud at the beginning of the rally, and a moment of silence honored the men and women, as well as their families.
In a report on Massachusetts workplace accidents released today, the Massachusetts Coalition for the Occupational Safety and Health (MassCOSH) said for every worker killed on the job, 10 more die from occupational disease. Massachusetts workplace accidents resulting in death in 2009 included:
- 6 servicemen and women who died as a result of the war in Iraq
- 9 construction accident deaths
- 7 fishing accident deaths
- 11 deaths among Massachusetts firefighters
- 11 transportation accident deaths
- 6 workplace violence deaths
MassCOSH, which co-sponsored today’s rally with the Massachusetts AFL-CIO and the Greater Boston Labor Council, estimated 1,800 Massachusetts workers were diagnosed with cancers caused by workplace exposures last year. Another 50,000 Massachusetts workers reported serious personal injuries.
There are currently several efforts to prevent Massachusetts workplace accidents. Last Workers’ Memorial Day, Governor Deval Patrick issued an executive order establishing health and safety committees in all state agencies. But MassCOSH said a glaring problem that still must be changed is that Massachusetts’ public sector employees are not covered under the federal Occupational Safety and Health Act (OSHA) like private sector workers.
Among other recommendations, MassCOSH calls on the state to be more proactive and to protect temporary workers by passing the Employment Agency Bill (Senate Bill 2364). This bill will require employment agencies to provide written notice about key details of job assignments, the work site employer, the type of work to be done, the right to workers’ compensation and other important information. We believe this bill is especially important in light of this economic time.
MassCOSH’s complete report is titled, “Dying for Work in Massachusetts: Loss of Life and Limb in Masachusetts Workplaces.” It is available from MassCOSH.
Boston attorney David White (below) attended the rally on behalf of the firm.
Breakstone, White & Gluck, a Massachusetts workplace accident law firm, supports MassCOSH and its work to improve Massachusetts workplace safety, inspections and enforcement.
Boston Bike Safety Gets Much-Needed Attention During Summit
Boston bicycle safety has markedly improved over the past two years with several new safety initiatives, including the creation of new bike lanes, publication of the city’s first biking map and installation of hundreds of bike racks.
But Boston bike safety is back in focus this month after three bicycle accidents within the city, including one fatal bike accident that claimed the life of a 22-year-old cyclist and another causing serious personal injuries.
“The biggest problem compared to other cities I’ve ridden in … whether people are biking, walking or driving around the city, everyone has this ‘me first’ attitude,” David Watson, executive director of the Massachusetts Bicycle Coalition, recently told the Boston Metro newspaper. “That’s a huge issue – changing the way everybody thinks.”
We applaud Boston Mayor Thomas M. Menino for calling the city’s first Bicycling Safety Summit after the accidents to provide bicyclists and city officials a chance to discuss ways to prevent bicycle accidents in Boston.
The reality is that both drivers and bicyclists need to take responsibility for co-existing with each other, along with walkers. This means education, especially considering the fact that the laws governing bicycling were amended by the Massachusetts legislature in 2009. Drivers still need to learn their new responsibilities when overtaking cyclists, when turning, and when opening doors in traffic.
For anyone thinking about enjoying the city on two bicycle wheels this summer, we encourage you to register for one of the Massachusetts Bicycle Coalition’s upcoming bike safety classes on May 6 or May 19 at City Hall. The move could save a life.
Our firm supports cycling programs and bicycle safety in Massachusetts. We are proud supporters of MassBike, the Northeast Bicycle Club, the Charles River Wheelmen, Bikes Not Bombs and the New England Mountain Bike Association.
Defective Product Leads to Proposed Plea Deal in the Largest Criminal Penalty Ever Assessed Against a Medical Device Company
Guidant LLC, a division of Massachusetts’ company Boston Scientific, has plead guilty to two misdemeanor counts alleging the medical device maker failed to disclose product changes involving over 20,000 implantable heart monitor devices.
The medical device manufacturer plead guilty Monday, April 5 and will learn over the next few weeks whether U.S. District Judge Donovan Frank will accept a proposed $296 million plea deal – the largest criminal assessment ever proposed against a medical device company.
The Department of Justice accuses Guidant of changing the design of its implantable cardioverter defribrillators, or ICDs, and failing to notify the Food and Drug Administration (FDA) of subsequent problems that lead to a Class 1 medical recall – the most serious category which indicate a defective product has the potential to cause serious personal injury or wrongful death.
Guidant’s implantable cardioverter defribrillators, Ventak Prizm 2 DR and Contak Renewal 1 and 2, were designed to monitor patients for abnormal heart rhythms and deliver electric shocks to keep the heart beating properly. But Department of Justice officials say Guidant discovered as early as 2002 that Ventak had the potential to suffer an electric arc, which could short-circuit the device. Although problems continued with the defribrillator, Guidant didn’t issue a warning until 2005. In at least seven cases, the devices failed to issue a lifesaving shock and the patient died.
In 2005, Guidant sent a product update to doctors, advising that a yellow warning screen indicated a potentially serious problem. However, the FDA says the company should have sent a product correction, rather than a product update, since the change reduced the risk of serious injury, and should have notified the FDA of the change within 10 days. Guidant ultimately recalled its three devices in 2005.
Attorneys for the affected patients are now urging the court to reject the plea deal because it will not provide restitution payments to victims. The government prosecutor has argued that the victims have other remedies for compensation and that the applicable law does not require restitution. The prosecutor points to the fact that most of the victims have settled civil suits with the company and the company has paid out over $650 million in settlement and warranty payments. Additionally, $42 million of the plea amount is forfeited funds and victims can petition the Justice Department for their share.
For more information on the plea deal, see this Boston Globe article and this Star Tribune article.
After Three Infant Deaths, Company Recalls Baby Sling– Massachusetts Residents Should Take Warning
The US Consumer Product Safety Commission (CPSC), in cooperation with Infantino LLC of San Diego, have announced a free replacement program for two models of defective infant slings. One million of the defective products are being recalled after the three wrongful deaths of infants due to incidents of suffocation. CPSC is aware of the deaths of a seven week old in Philadelphia, a six day old in Salem, OR, and a three month old and Cincinatti, OH. CPSC advises consumers to immediately stop using these slings for infants younger than four months of age due to a risk of suffocation and contact Infantino for a free replacement product. 
The affected sling models are the “SlingRider” and the “Wendy Bellissimo.” Infantino LLC sold the slings in the United States from January 2003 through March 2010 at Walmart, Burlington Coat Factory, Target, Babies “R” Us, BJ’s Wholesale, various baby and children’s stores and other retailers nationwide, and on Amazon.com, for between $25 and $30. The slings were manufactured in China and Thailand. Consumers should contact Infantino to receive a free replacement product.
CPCS has also released a general warning about sling carriers for babies as they pose two risks of suffocation. The sling’s fabric can press against an infant’s nose and mouth, blocking the baby’s breathing. Additionally, where a sling keeps the infant in a curled position bending the chin toward the chest, the airways can be restricted. CPCS is working with concerned companies to develop safety standards for baby slings.
For information on obtaining a free replacement product, visit www.infantino.com.
To report an incident involving a recalled product, file an incident report at https://www.cpsc.gov/cgibin/incident.aspx.
For more information on the CPCS warning, see the CPCS website. For more information on this specific recall, see this press release. Read More
Ex-NYC Chief Crane Inspector Put Lives in Danger by Accepting Bribes
James Delayo, the former chief crane inspector for New York City, has plead guilty to accepting more than $10,000 in bribes to fake inspections and crane operator licensing test results. Delayo has admitted to accepting bribes between 2002 and 2008 to file paperwork indicating that a Long Island-based crane company had passed inspections that never happened and to say an employee passed a licensing exam never taken. For these and other favors, Delayo received from $200 to $3000 in individual payoffs. An official and employee with the involved Long Island crane company, Nu-Way Crane Service, have plead not guilty to bribery and record tampering. Delayo is currently out on bail until his sentencing on May 4th. His plea deal calls for two to six years in prison.
Delayo was arrested back in 2008 after the second of two serious construction accidents caused by massive cranes collapsing. The accidents caused the wrongful deaths of nine people. Authorities said at the time that Delayo’s case was one in a series of cases against builders and inspectors accused of accepting tainted money. Consistent with that claim, Delayo is not the only person in trouble after the 2008 crane collapses. A crane rigging contractor has been charged with manslaughter for one collapse and a crane owner and former mechanic have been charged with manslaughter for the other collapse. Since the 2008 accidents, New York City building officials have made changes to crane training requirements and exam procedures for some operators. Additionally, some inspections are now performed by a national group.
To see additional coverage of this story, see this Boston Globe article.
Big Dig Handrails Under Scrutiny After Massachusetts Drivers’ Deaths
Lawmakers and individuals are calling for change after seven deadly Big Dig crashes have been linked to handrails in the tunnels. State Senate President Therese Murphy has requested that the Department of Transportation, which overseas the tunnel system, review the handrails’ design and safety. Between 2004 and 2008, seven of the nine fatal accidents in the Big Dig were the result of vehicles hitting the handrails. Most crash victims were dismembered. The handrails line about six miles of the Big Dig on elevated walkways and are designed to prevent workers from tumbling into traffic.
The handrails are also the subject of litigation in Suffolk Superior Court. The widow of State Trooper Vincent Cila, who was killed after hitting a handrail post while on a motorcycle in 2005, has filed a wrongful death suit against multiple parties, including the state Turnpike Authority. The defendants assert that the handrails meet all applicable safety standards and regulations.
Despite assertions to the handrails’ safety, relatives and friends of crash victims are calling for the handrail design to be changed. Experts consulted by the Boston Globe said that the handrails are flawed. The horizontal rails are spaced far apart, allowing motorists to become entangled, and the rails are only three feet above the road, at head level. However, handrail design may not be solely to blame for the grisly crashes. Many of the drivers killed were speeding or not wearing seatbelts.
For assistance with a motor vehicle accident, truck accident, or wrongful death case, please contact the attorneys at the Boston law firm of Breakstone, White and Gluck. The lawyers have over 80 years of experience with litigating in state and federal court, at the trial and appellate level. To consult with an experienced attorney, call 800 379 1244 or visit the firm’s website.
Children’s Sweatshirts and Jackets Recalled due to Strangulation Risk–Massachusetts Parents Take Warning
Four companies are voluntarily recalling children’s hooded sweatshirts and jackets due to the danger of children suffering personal injuries or death. The recalled garments all have drawstrings through the hoods that pose a strangulation hazard for children. All four companies are cooperating with the US Consumer Product Safety Commission (CPSC). Baycreek Inc. of New York, NY is recalling 1,900 hooded sweatshirts. Weeplay Kids LLC of New York, NY is recalling 11,800 hooded sweatshirts. Bobens Trading Co., Inc. of Hicksville, NY is recalling 3,900 hooded sweatshirts and Franshaw, Inc. of New York, NY is recalling 2,400 hooded jackets; both companies’ recalled garments are sold exclusively at Burlington Coat Factory. No injuries or incidents have yet been reported.
To eliminate the risk of danger, parents should either remove the drawstring from the hood, or return the garment to the place of purchase or the manufacturer for a full refund. The CPSC issued guidelines in 1996 for children’s upper outerwear and the industry voluntarily incorporated these standards in 1997. The guidelines provide additional information and advice on how to eliminate the risk of strangulation from hooded outerwear.
To report an incident involving one of these garments, or a similar garment, file a consumer product incident report with CPSC.
For more information on the Weeplay Kids recall, see http://www.cpsc.gov/cpscpub/prerel/prhtml10/10142.html
For more information on the Baycreek recall, see http://www.cpsc.gov/cpscpub/prerel/prhtml10/10144.html
For more information on the Bobens Trading Co recall, see http://www.cpsc.gov/cpscpub/prerel/prhtml10/10140.html
For more information on the Franshaw recall, see http://www.cpsc.gov/cpscpub/prerel/prhtml10/10143.html