Building a winning tort case

Issue August 2010 By Christina P. O'Neill

The phrase "litigious society" is almost always used in a negative connotation. But litigation that seeks compensation for a life-changing injury, the effects of which can be lifelong, makes all the difference to the plaintiffs involved. We recently interviewed attorney Douglas K. Sheff, the senior partner at Sheff Law Offices PC. He is vice president of the Massachusetts Bar Association (MBA), past president of the Massachusetts Academy of Trial Attorneys (MATA), and a national workplace injury expert.

Contrary to their portrayal in popular entertainment, personal injury cases are extremely difficult to conduct, Sheff says.

Workplace Injury

Specifically addressing workplace injury tort cases, he notes that personal injury law does not allow suits against employers. Instead, it casts a wide net covering anyone who is hurt due to the actions or inactions of others. A successful workplace injury tort case needs three elements: Liability, damages and coverage. Bringing it to trial also requires proof of fault on the part of potential defendants.

In Massachusetts, some of the most serious workplace injury cases tend to spring out of construction mishaps and product defects. While employers who make workers' compensation available to their employees cannot be sued under personal injury or wrongful death law, a worker hurt on the job by an entity other than the employer or a co-worker may bring such a lawsuit. Workers' compensation claims are limited to medical expenses, replacement of wages, and to a limited extent, compensation for scarring, disfigurement and losses of bodily functions attributable to the workplace injury. This leaves the potential for a seriously injured worker to never receive adequate compensation for his/her loss, including pain and suffering and loss of enjoyment of life, Sheff says.

Construction cases are common workplace injuries. Several subcontractors may work together at the same time, so there are often many potential defendants from which to choose, namely, the general contractor and its many subcontractors. Massachusetts has strict rules governing general contractors. For example, a "primary" or general contractor shall not be relieved of overall responsibility to create a safe place to work under Massachusetts law. Subcontractors must also ensure that the workplace is safe. If a subcontractor is liable, the general contractor is not necessarily also liable, Sheff notes.

To address the complexity of targeting multiple potential defendants, early and extensive discovery, including several sets of interrogatories, requests for production of documents, request for admissions, and any necessary motions to compel is necessary. These should be followed up by a series of depositions in order to determine the appropriate parties and responsibilities. Concerted effort in this matter can target several potential defendants.

Product Liability

In product liability cases, an attorney is often pitted against a large corporate defendant and must establish sufficient knowledge of the defendant's processes to make a solid case. Most successful product liability cases are not manufacturing errors, involving a limited amount of faulty items, but design defect cases, involving all items in the category.

The key is to find "reasonable feasible alternatives," Sheff says.  The plaintiff should search all sources for design, including sources suggested by experts, and the defendant's own patent portfolio, which might contain an unused patent for a product that was safer but more expensive to build. Then, there's the competition. "If I had Westinghouse [as a client in a hypothetical elevator malfunction case], I'd go to Otis. They've been studying the competition for years," he says. Sheff has actually scrapped around in junkyards to find evidence that would support a finding on faulty design.

The plaintiff's attorney must evaluate the cost of the safety measure relative to the overall product cost. For example, a $5 guard on a $1,000 machine is feasible, but a $1,000 interlock system on a $2,000 item may not be. Including a warning on the machine, which costs pennies, is always feasible.

The goal of a plaintiff's attorney is to find a defect or defects that render a product "unreasonably dangerous," the standard in any product liability case. Ultimately a jury will have to find that the product is indeed unreasonably dangerous in order for the plaintiff to prevail at trial.

Sometimes a product manufacturer is bankrupt or otherwise "judgment-proof." In that case, the plaintiff is not necessarily precluded from pursuing a case. Sometimes sellers and distributors can be found liable for putting an unreasonably dangerous product into the stream of commerce. The test is whether the plaintiff used the subject product in a "reasonably foreseeable manner."

Product liability cases often involve workplace machinery. In Massachusetts, which has many old mill towns, this machinery is often outdated. In the event of a serious injury involving a piece of machinery decades old, a defendant might raise the "state of the art" defense. If the subject machinery was safe at the time of manufacture, it may be difficult or impossible for the plaintiff to prevail.

Careful research must be conducted in order to determine precisely when the technology was developed relative to the product. For example, Sheff cites a case he describes as "significant" from the 1980s in which he prevailed, involving the electrocution of a worker on a machine manufactured in the 1940s. He says he was able to establish that an interlock system, which would have disconnected the electricity at the time of the accident, was actually available in the 1930s.

TBI: Proving Future Damages Today

One workplace injury often overlooked by lawyers and doctors alike is traumatic brain injury (TBI). Sheff, a national expert in this field, says that one out of every 500 people in America suffer TBI every year, with 60 percent of cases involving auto accidents. But only 15 percent of TBI injuries are detectable through MRI or CAT scans. "These are tough cases," he says.

Newer tests such as FMRI, PET, Tesla MRI, which offers higher-resolution images than its predecessors, and Quantitative Electroencephalograph (QEEG), can identify what is known as "diffuse axonal injury," in which fragile nerve cells have snapped due to twisting and shearing of the brain in sudden-impact injuries.

"These new, yet reliable technologies should be welcomed in our courtrooms in order to provide a truthful demonstration of a plaintiff's brain injury," Sheff says.

Loss of Earning Capacity

One of the most important aspects of proving damages in a tort case is to account for any degeneration which will occur in the future. "Just picture a horizontal line. Above that line your plaintiff can work, below it, she can't. Imagine your plaintiff is just above the line but degenerating," Sheff says. "In a couple of years she will slip below the line and lose the ability to work at all. We must get her compensation for a lifetime of lost earnings and disability.

"The plaintiff attorney's job is to artfully establish a likelihood that degeneration will occur, and demonstrate the effect of same on the plaintiff over the course of her lifetime," he observes.

"A properly litigated PI case can take thousands of hours, hundreds of thousands of dollars, jury focus groups, and up to a dozen experts to do correctly. But for those plaintiff attorneys who constantly see PI plaintiffs getting far less than they need or deserve, the stakes are worth it to get it right," Sheff says.

Douglas K. Sheff is the senior partner at Sheff Law Offices PC. He is vice president of the Massachusetts Bar Association (MBA), past president of the Massachusetts Academy of Trial Attorneys (MATA), and a national expert in workplace injury and traumatic brain injury. He can be reached at (617) 227-7000.

Christina P. O'Neill is custom publications editor at The Warren Group, publisher of Massachusetts Lawyers Journal.