By Dan McDonalddaniel.mcdonald@lawyersweekly.com

Two iconic Massachusetts fishingports are in court battling federal reg-ulations that they say are economi-cally crippling their communities andundoing a New England way of lifethat has spanned generations.

The regulations are intended tokeep fish stocks healthy, but theplaintiffs, including the cities ofNew Bedford and Gloucester, claimthey were illegally implemented.

Under the regulations, fishermenno longer have a set number of daysin which to fish. Rather, the ocean is

divided into different “sectors,” andonly a certain number of fish are al-lowed to be caught in each sector.There is also a system through whichvessel owners can buy and sell theright to catch a certain number of fish.

The new rules benefit larger op-erations that can spread their costsover many boats, but the plaintiffssay they are devastating for small-er fisherman who can no longercatch enough fish to make a living.

“The regulations are wreakinghavoc,” said Scott W. Lang, an at-torney representing the plaintiffsand former mayor of New Bedford.

masslawyersweekly.comMASSACHUSETTSVolume 40

Issue No. 23

$9.00 per copy

January 23, 2012

Criminal | Right to remain silentArticle 12 of the Massachusetts Declaration ofRights provides greater protection against self-incrimination than the Fifth Amendment, theSupreme Judicial Court determines. page 17

Constitutional | Right to bear armsThe right to possess arms is no longer something thatcan be withdrawn by government on a permanentand irrevocable basis without due process, the 1st U.S.Circuit Court of Appeals says. page 6

Contract | IncapacityMedical evidence is necessary to establish that aperson lacked the capacity to enter into a contractdue to the existence of a mental condition, theSupreme Judicial Court states. page 16

IMPORTANT OPINIONS OF THE WEEK

Steam from a water heaterburns a boilermaker over morethan half of his body.

A collapsing pool slide, sold bythe most ubiquitous toy outlet inthe land, causes a fatality.

A pre-term twin girl suffersfor eight days, then succumbs toa bowel disorder often found inpremature babies.

All are verdicts featured inthe state’s largest verdicts of2011. Among the top five, morethan $39 million was awardedto plaintiffs last year.

Andrew M. Abraham, ofBoston’s Baker & Abraham andpresident of the MassachusettsAcademy of Trial Attorneys,says plaintiffs’ lawyers oftenhave the deck stacked againstthem from the outset in person-al injury cases. Among the chal-lenges, he says, are jurors who

have pre-conceived notions ofpersonal injury cases, and jurorswho “don’t understand prepon-derance of evidence, so they im-pose the only standard theyknow, which is beyond a rea-sonable doubt.”

Given that, the list of the topverdicts from 2011 tells Abra-ham that, “if you have a goodclient with real injuries andgood liability in a situationwhere it’s clearly a violation ofsafety, you’re going to overcomethat juror bias.”

He adds: “We should be try-ing more of these cases.”

Jeffrey N. Catalano, a partnerat Todd & Weld and vice presi-dent of the Massachusetts BarAssociation, notes that there arefewer and fewer medical-mal-practice cases every year, whichhe chalks up to the “limited ver-

dicts” plaintiffs were receiving.But he believes the pendulumhas swung back somewhat to-ward patients.

Insurance companies have“become a little too emboldenedby the number of defense ver-dicts, such that they felt theycould take chances on cases theyshould not have taken chanceson and ultimately had to pay thepiper,” he says.

According to Catalano, when itcomes to med-mal cases, juriesnow understand that “the med-ical system is flawed, and thereare too many people dying orsuffering from medical mistakes.They’re aware patients aren’t be-ing treated as well as they shouldbe in some situations.”

Turn to page 10 to readmore about the top verdictsand settlements of 2011.

Largest Verdicts andSettlements of 2011For PI plaintiffs’ bar, jurors prove to be biggest obstacle

New Bedford, Gloucester sueto stop ‘illegal’ fishing rulesClaim federal regs are destroying their way of life

SEE PAGE

10

Voluntary dismissal did nottoll the statute of limitationsBy David E. Frankdavid.frank@lawyersweekly.com

A voluntary dismissal did not tollthe statute of limitations and did notgive plaintiffs a year to re-file theircase under the Massachusetts Sav-ings Statute, a Superior Court judgehas ruled in a case of first impression.

The statute, G.L.c. 260, §32, allows acase to be re-filed within a year if it wasdismissed for any “matter of form.”

But a voluntary dismissal is not a“matter of form,” Superior CourtJudge Judith Fabricant ruled.

“Plaintiffs have cited no case, andthe Court has found none, treating avoluntary dismissal as a matter ofform for purposes of the statute,” shewrote.  “The plaintiffs’ argumentwould make application of the statutedepend on determination of the

plaintiffs’ subjective motivefor their own voluntary ac-tion. That cannot be whatthe legislature intended.”

As a result, Fabricantdismissed a case broughtby hedge fund investorswho voluntarily dismissedtheir suit in the DelawareCourt of Chancery andsought to re-file it later in

the Suffolk Superior Court’s Busi-ness Litigation Session.

The 20-page decision is Cannon-ball Fund, Ltd., et al. v. Dutchess Cap-ital Management, LLC, et al., Lawyers

Weekly No. 12-269-11. Thefull text of the ruling can beordered at masslawyer-sweekly.com.

Bad formDismissals based on lack

of jurisdiction are consid-ered “matters of form” un-der the statute, said SanfordF. Remz of Boston, whorepresented the defendants,but the Delaware suit didnot specifically cite any ju-risdictional grounds for theplaintiffs’ request.

The Yurko, Salvesen &Remz practitioner said Fabricant’sruling marked the first time a Mas-sachusetts judge had ever beenasked to decide whether the Savings

Continued on page 25

By Eric T. Berkman

A general contractor violated Ch.93A by suspending all payments toa subcontractor, even though thesubcontractor made false statementsin lien waivers it executed to securepayment for uncompensated work,a Superior Court judge has ruled.

The subcontractorhad been having trou-ble securing paymentfor increased costs itincurred due to designdeficiencies on theproject. The general contractorpromised to pay for some of thework if the subcontractor agreed tosign a waiver of mechanic’s liens.The subcontractor agreed, but indoing so it falsely represented thatit was current in paying its own sub-contractors. When the general con-tractor found out about the misrep-

resentations, it suspended all pay-ments to the subcontractor.

The subcontractor sued, arguingthat despite its own misrepresenta-tions, the contractor’s suspensionof payments after depriving it of faircompensation for its work consti-tuted an “unfair and deceptive” actin violation of Ch. 93A.

Judge D. Lloyd Macdonald agreed,awarding the subcontractor morethan $5 million in damages plus at-torney’s fees.

“[The contractor] was on noticethat, despite [the subcontractor’s] ar-rears [to its creditors], [the subcon-tractor] had a credible capacity to ad-

Continued on page 27

Subcontractor wins underCh. 93A despite falsehoods

The full text of the ruling in Cannonball Fund,Ltd., et al. v. Dutchess Capital Management,

LLC, et al. can be ordered atmasslawyersweekly.com.

See opinion digest for Certified Power Systems,Inc. v. Dominion Energy Brayton Point, LLC, et al.

on masslawyersweekly.com

Continued on page 25

REMZRepresented the

defendants

ISTOCKPHOTO.COM

10 | Massachusetts Lawyers Weekly | January 23, 2012 masslawyersweekly.com | Cite this page 40 MLW 922

In 2006, a Colorado woman visiting familyin Andover slid down an inflatable pool slide,which partially collapsed. Robin Aleo struckthe pool’s edge head first, sustaining injuriesthat proved to be fatal.

Five years later, a Superior Court jury inSalem ordered retail giant Toys “R” Us to pay$20.6 million to the family of Aleo. The plain-tiffs had sought action against the retail chaingiant for products liability.

Plaintiffs’ counsel Benjamin R. Zimmermannof Boston’s Sugarman says the trial turned onthe defendant’s inability to prove the producthad been tested.

Zimmermann says Toys “R” Us imported aproduct that the company knew “nothing about.”

It sold the slide “knowing not much aboutwho made it, or how it was made, or how it wasdesigned,” he adds, noting that no documentswere produced to prove the slide was tested tomeet federal standards, or simply tested on hu-mans in any capacity, before it was sold.

“I think our position all along was that peo-ple expect big companies like Toys ‘R’ Us to vettheir products,” he says, observing that the com-pany had a limited staff responsible for re-viewing “a lot of products.”

There was no recall for the product, whichwas sold for one season only, he says.

“It was a significant verdict that reflected thedamage done to this family and also the extentof Toys ‘R’ Us’ misconduct,” Zimmermann says.

Defense attorneys argued that the regulationscited did not apply to the specific slide at issue.

Lauren Carpenter of Philadelphia-basedMorgan Lewis declined to comment, saying shehad to check with the company before speak-ing about the case. David R. DiCicco of Pow-ers, DiCicco & Sahagian in Lynnfield did notreturn a call.

— DAN MCDoNALD

In June 2004, 28-year-old South Hamilton res-ident Danielle Bellerose gave birth to twin daugh-ters — Katherine and Alexis — at Beth IsraelDeaconess Medical Center. Eight days later,Katherine was dead from a bowel disorder mostoften found in premature or sick babies.

It was a preventable death, according to hermother, who brought a medical-malpracticesuit against a group of doctors and nurses, al-leging wrongful death and contending that hos-pital staff did not pay close enough attention asKatherine suffered and ultimately died fromnecrotizing enterocolitis, commonly referredto as NEC.

In August 2011, a Suffolk Superior Court jury,after deliberating for seven-and-a-half hoursover two days, found one doctor, Dr. Janet S.Lloyd, and one nurse practitioner, Michele A.Ambrosino, negligent and awarded the plain-tiffs $50,000 for the baby’s conscious pain andsuffering and $3.5 million each to the baby’smother and father for their loss.

The plaintiffs said the signs for NEC, a con-

dition characterized by the death of bowel tis-sue, were there, while the defendants main-tained that there were no signs or symptoms.The defendants said the standards of medicalcare were met and that nothing could have beendone to save Katherine.

The plaintiffs argued that since Katherinewas pre-term — she and Alexis were born pre-mature at 30 weeks — she was a known risk fordeveloping NEC.

Furthermore, Katherine had patent ductusareriosus, a condition in infants that leads toabnormal blood flow, and was consequentlytreated with Indocin, a medication that, ac-cording to the plaintiffs, put her at additionalrisk for NEC.

She was also fed through a tube that wentthrough her nose to her stomach, which wasanother risk factor, the plaintiffs said.

“This case speaks to the value of a deceasedchild in modern times in Massachusetts andwhat a loss this was to the parents,” says WilliamJ. Thompson, who, along with Elizabeth Cran-ford from Boston’s Lubin & Meyer, represent-ed the plaintiffs. “The jury heard the evidenceover two weeks and concluded that this childshould not have died.”

He says Bellerose “never wavered from herstory,” and notes that her testimony differedfrom “all the defendants, and, in some signifi-cant ways, it also differed from the medicalrecords.”

Thompson says he is a “firm believer in vi-sual aids,” but that he tries to limit their use tocomplement the testimony of witnesses, ratherthan employing them to appear modern or tokeep the jury’s attention.

“When you’re dealing with complex medicalissues and confusing medical terms, you haveto simplify it for the jurors, and then apply com-mon sense. I think that’s the challenge for all ofus as lawyers,” he says.

John D. Cassidy of Ficksman & Conley inBoston labels the verdict against his clients“aberrant,” chalking it up to the jury having anemotional response to the tale of a dead new-born. He says the amount of the verdict is “very,very hard to understand.”

Katherine, he adds, “received very, very goodcare,” and Beth Israel has one of the best neona-tal intensive care units in the country.

In this instance, NEC was unexpected, he says.“I think it’s an aberrant verdict. I know that

may sound like sour grapes … but I think it wasan aberration,” Cassidy says.

— DAN MCDoNALD

Robert I. Feinberg’s adjective of choice was“ghastly.”

That was the word the Brookline attorney re-peatedly used to describe the photos of the sec-ond- and third-degree burns caused by steamand hot water from a 1,200-gallon water heaterthat covered about half of Amedeo Gallotto, aboilermaker from a family of boilermakers.

The pictures, says Feinberg, who along withMatthew G. Venezia and John Johnson repre-sented the 50-year-old father of two, “showed thehorror” of Gallotto’s injuries, which he sustainedwhile trying to service a water heater for a 318-unit condominium complex in Winchester.

“He went through hell,” Feinberg says.Gallotto sued Park View Condominium

Trust, claiming the defendants told him the unit

was ready to be worked on. The defendants tolda different story.

Ultimately, a Middlesex Superior Court juryawarded a $5.63 million verdict to Gallotto.

Feinberg believes the size of the verdict is at-tributable to the photos and the solid testi-monies of Gallotto, his wife, his son, and theburn unit surgeon and psychiatrist.

Scalded as he was attempting to fix a gasket,Gallotto came across during his testimony “asa very good historian” regarding such heaters,as well as “honest and knowledgeable,” Feinbergsays. “It was very much a credibility contest.”

Feinberg says the defendants, in their depo-sition, took an extreme position, asserting thatthey gave “clear, unambiguous and stern warn-ings not to touch the pressure vessel. I think itstrained credulity.”

There was no maintenance contract for theheater stretching back to its 1966 installation,according to Feinberg.

“They admitted that if it did not have mov-ing parts, it did not need service. I think thatspoke for itself,” he says.

Christopher P. Flanagan of Wilson, Elser,Moskowitz, Edelman in Boston representedthe defendants. He declined to comment onthe matter.

— DAN MCDoNALD

An electronic parts salesman who claimed hewas deprived of stock and wrongfully fired dur-ing a company takeover in Milford was award-ed $3.26 million in Worcester Superior Court.

The case pitted Evan Ehrlich, the plaintiff ina counterclaim, against David Elofson, SelmarkAssociates, Inc., and Marathon Sales, Ltd., afterElofson fired Ehrlich on the eve of the conver-sion of his Marathon stock into Selmark stock.

When he fired Ehrlich, according to the com-plaint, Elofson barred him from acquiring Sel-mark stock to which he was entitled per anarrangement reached between the two.

Ehrlich had worked for Marathon, which wasbeing taken over by Selmark. Both entities offeredsales services to electronic manufacturers in NewEngland that did not have in-house sales teams.

Ehrlich, according to the complaint, was sup-posed to become a vice president and directorof Selmark, with “a base pay and benefits com-parable to the base pay benefits he was receiv-ing from Marathon.”

An arrangement between Ehrlich, Marathonand Selmark required the purchase of companystock over a six-year period, at which time Ehrlichwould be able to convert his Marathon stock toshares of the purchasing company, Selmark.

But Elofson fired Ehrlich, giving as an ex-planation that Ehrlich was “not a worthy suc-cessor” as grounds for the termination.

Robert D. Cohan of Boston’s Cohan, Rasnick,Myerson, who represented Ehrlich, challengedthat explanation as a “fabrication so he couldfire him and take all the stock.”

one of the plaintiff counterclaimant’s expertwitnesses, Jeffrey Davis, a business consultantfrom a company called Mage Inc., testified to thevariety of alternatives commonly considered toavoid terminating a valued employee or owner.

“In our case, the defendant, Elofson, made noeffort whatsoever to pursue less drastic meas-ures,” Cohan says.

Davis’ testimony, according to Cohan, was ef-fective in “opening the jury’s eyes to the great

number of ways you can save someone’s job ifyou want to.”

The plaintiff brought counterclaims forbreach of contract — written, implied-in-factand by estoppels; breach of the impliedcovenant of good faith and fair dealings; viola-tions of the Wage Act; negligent misrepresen-tations; fraud; unjust enrichment; and unfairpractices in violation of G.L.c. 93A.

Attempts to reach the attorneys for Elofson,Selmark and Marathon failed.

— DAN MCDoNALD

In 1978, the Cézanne still life “Bouilloire etFruits” (“Pitcher and Fruits”) was stolen alongwith six other paintings from the Berkshireshome of collector Michael Bakwin.

The heist, the largest residential art theft inMassachusetts history, may have been pulledoff by a man named David Colvin, but Colvinwas never charged with the burglary becausehe was shot and killed the following year, re-portedly in a dispute over a gambling debt.

Almost 30 years later, retired lawyer RobertMardirosian, who had represented Colvin in hisdays as a practitioner, was convicted and sen-tenced in U.S. District Court in Boston to sevenyears in prison for possession of the paintings.

Investigators believe Mardirosian may havebought them from his former client and re-tained them for two decades, using a CentralAmerican holding corporation as a front, be-fore transporting them via Switzerland to Lon-don, where his plans to sell the stolen workswere foiled by the local art loss register.

Although Bakwin eventually was able to re-store his collection, his recovery efforts cost himmillions in fees and expenses, so Michael A.Collora of Collora in Boston made sure that thefruit of his client’s labor did not come only inthe form of apples and pears.

In August 2011, a Barnstable Superior Courtjury awarded Bakwin just over $3.1 million tocompensate him for the costs he incurred track-ing down the precious lot, which also includedtwo works by Armenian contemporary masterJean Jansems.

Bakwin sued Mardirosian for fraud as wellas fraudulent transfer of assets to his family. Thekey was convincing the jury that in light of Bak-win’s collection being made whole again, notonly did Mardirosian belong in prison, but thatthe fraudulent activity entitled Bakwin “to getassets back from people who didn’t deservethem,” said Collora.

The central issue in the case came down tothe statute of limitations: After such a drawn-out saga, had time run out on Bakwin’s abilityto sue for damages?

“The judge left the statute-of-limitations ques-tion to the jury. The question was, ‘When shouldthe plaintiff have sued and what did he know?’”explained Collora. “The jury essentially award-ed [Bakwin] all of his out-of-pocket expenses af-ter finding the plaintiff had no knowledge of whoMardirosian was, given that he behind a Pana-manian corporation and a Swiss lawyer.”

After its recovery, “Bouilloire et Fruits” soldlegitimately at auction for over $29 million.

Defense attorneys Brian P. Fitzsimmons andMichael F. Hanley of the Law offices of MichaelF. Hanley in Quincy did not return a call re-questing comment prior to deadline.

— MATT YAS

$20.6 MAleo, et al. v. Toys “R” Us

$7.05 MBellerose v. Beth Israel

Deaconess Medical Center

$5.63 MGallotto v. Park View Condominium Trust

$3.26 MSelmark Associates Inc. on Behalf ofMarathon Sales Ltd. v. Ehrlich, et al.

$3.1 MBakwin v. Mardirosian

The Largest Verdicts of 2011YEAR IN REVIEW

Cite this page 40 MLW 923 | masslawyersweekly.com January 23, 2012 | Massachusetts Lawyers Weekly | 11

$2.6 MRosado v. Perugini, et al.Surgical tack ends up in patient’s bowel Action: Medical malpractice Attorney: Gregg J. Pasquale, Worcester

$2.25 M Trainor v. HEI Hospitality, LLC, et al.Co. retaliates against fired executiveAction: EmploymentAttorneys: David Rapaport and LaurieAlexander-Krom, Davis, Malm & D’Agos-tine, Boston

$2.25 MFarrell v. DevenisDriver suffers brain injury in highway col-lisionAction: Motor vehicle negligenceAttorneys: Mark F. Itzkowitz and KennethI. Kolpan, Boston

$2.1 M Sorenti, et al. v. CommonwealthState pays too little for taken land Action: Eminent domainAttorneys: Augustus F. Wagner Jr., NelsonG. Apjohn and Robyn S. Maguire, Nutter,McClennen & Fish, Boston and Hyannis

$1.85 M Wiggins v. Dimeo Construction Company, Inc.Worker falls through unguarded debris chuteAction: Negligence & tort

Attorneys: Benjamin R. Zimmermann andStacey L. Pietrowicz, Sugarman & Sugarman,Boston

$1.76 M Aspect Software, Inc. v. Kenexa Technology, Inc.HR provider countersues software co. overcontractAction: ContractAttorneys: Christine M. Netski andMatthew C. Welnicki, Sugarman, Rogers,Barshak & Cohen, Boston

$1.65 M Crook v. Hawk Scallop Co. Inc.Hazardous oil patch renders boat deck un-seaworthyAction: AdmiraltyAttorneys: Carolyn M. Latti and David F.Anderson, Latti & Anderson, Boston

$1.55 M Nichols v. Pritzker, et al.Woman who cared for aunt and uncle shutout of inheritanceAction: ContractAttorney: Patricia Noyes-Corrigan, Gargiu-lo/Rudnick, Boston

$1.39 M Sullivan, et al. v. Modern Continental Con-struction Co., Inc.Truck strikes cherry picker holding workerin bucketAction: Negligence & tort

Attorneys: Paul F. Leavis and Deborah M.Santello, Leavis & Rest, Boston

$1.38 M Gianasmidis v. PalangasWoman defrauds dying fatherAction: FraudAttorneys: India L. Minchoff and StephenJ. Kuzma, Boston

$1.29 M Goldberg, et al. v. CommonwealthState owes landowners after taking downbillboardAction: ContractAttorneys: George A. McLaughlin III, JoelE. Faller and Matthew E. Burke, TheMcLaughlin Brothers, Boston; and Peter E.Flynn, Saugus

$1.28 M Reyes v. Tecna, s.r.l., et al.Pasta co. worker’s arm mangled in machineryAction: Products liabilityAttorneys: Saba B. Hashem and Jay M. Wol-man, D’Angelo & Hashem, Boston

$1.21 M Vasquez v. Carlo, et al.Passenger thrown from car in three-vehiclecrash Action: Motor vehicle negligenceAttorneys: Stephen L. D’Angelo, Saba B.Hashem and Jay M. Wolman, D’Angelo &Hashem, Boston

$1.1 M Kiely v. Teradyne, Inc.Worker who filed bias complaint wins re-taliation suitAction: Civil rightsAttorneys: Inga S. Bernstein and EmmaQuinn-Judge, Zalkind, Rodriguez, Lunt &Duncan, Boston

Complex Medical Malpractice CasesDeserve A Second Opinion.

Lubin & Meyer, The Innovative Leader In Medical Malpractice,frequently obtains compensation on behalf of clients who were told theirclaims could not be successfully pursued.

A few examples of what we have achieved on cases previously turned downby other law firms:

• $3,000,000 failure to perform c-section results insevere brain damage in newborn

• $2,000,000 failure to diagnose and treat bowelblockage results in death

• $1,900,000 failure to accurately interpret MRI resultsin brain bleed and death

Before You and Your Client Decide Not to Pursue aMedical Malpractice Case, let our team of experienced medicalprofessionals and trial attorneys evaluate your client’s claim at no cost.

PROTECT YOUR CLIENT. PROTECT YOURSELF.

Lubin & Meyer PC100 City Hall Plaza, Boston, MA 02108 | 617.720.4447www.lubinandmeyer.comAttorneys licensed to practice in MA, NH & RI

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YEAR IN REVIEW

12 | Massachusetts Lawyers Weekly | January 23, 2012 masslawyersweekly.com | Cite this page 40 MLW 924

$6.87 M 50 Thomas Patton Drive, LLC v. Fustolo, et al.Borrower misuses loan to cover unrelated ventureAction: ContractAttorney: David H. Rich, Todd & Weld, Boston

$6.73 M Freeman, et al. v. Gainsboro Restaurant Inc., et al.Bar patron dies after falling down concealed stairway Action: Premises liabilityAttorneys: Jeffrey A. Newman, Boston; and Joseph Sano,Prince, Lobel & Tye, Boston

$5.19 M New England Confectionery Co., Inc. v. Stafford, et al.Candy co. defrauded by paying for pallets it never receivedAction: FraudAttorneys: Zachary W. Berk and Peter S. Brooks, SeyfarthShaw, Boston

$3 M John Doe, et al. v. Dority Boys abused by ex-priest awarded damagesAction: Negligence & tortAttorney: Carmen L. Durso, Boston

$2.1 M Iantosca v. KeddyVictim of road rage assault suffers severe PTSDAction: Motor vehicle negligenceAttorney: Bernard A. Kansky, Kansky & Associates, Boston

$1 M Maza v. Carlo Jr., et al.Driver liable for man’s death in multi-car pileupAction: Motor vehicle negligenceAttorney: Travis J. Jacobs, The Jacobs Law, Boston

YEAR IN REVIEW

Million-dollar-plus arbitration awardsYEAR IN REVIEW

Gov’t settlements of more than $1 millionYEAR IN REVIEW

Bench awards over $1 million

$29.4 M The Boston Foundation, et al. v. HR Gaugin, LLCCruise line operator attempted to squeeze foundation out ofstake in co.Action: FraudAttorneys: William A. Zucker and Kara A. Lynch, McCarter& English, Boston; Thomas Butters, Butters Brazilian, Boston

$5.28 M Case name withheldSepsis victim’s worrisome test results missing from recordAction: Medical malpracticeAttorney: Roger J. Brunelle, Sbrogna & Brunelle, Worcester

$2.6 M Case name withheldLaid-off workers: firm reneged on pledged support Action: ContractAttorney: Robert R. Berluti, Berluti, McLaughlin & Kutchin,Boston

$52 M Case name withheldBank subsidiary allegedly financed unfairhome loans, fueling subprime mortgage crisis Action: Consumer protectionAttorney: Martha Coakley, Attorney Gen-eral’s office, Boston

$24 M Commonwealth v. Merck & Co., Inc.Pharma giant allegedly reported inflatedprices for asthma drug Action: FraudAttorneys: Peter A. Mullin, K. NathanielYeager, Robyn P. Dollar, John Pina III andSteven T. Sharobem, Attorney General’s of-fice, Boston

$14.5 M United States, et al. v. Pfizer, Inc.Drugmaker accused of illegally marketingurology medicationAction: Consumer protectionAttorneys: Thomas M. Greene, Michael Tabband Ilyas J. Rona, Greene, Boston; Robert Pat-ten, Attorney General’s office, Boston; ZacharyA. Cunha, U.S. Attorney’s office, Boston

$9.8 M Case name withheld (option one)Mortgage company allegedly discriminat-ed against African-American and LatinoborrowersAction: Civil rightsAttorneys: Gabriel o’Malley and JonathanMiller, Attorney General’s office, Boston

$9 M Case name withheld (CVS)Pharmacy chain accused of violating third-party liability regulationsAction: FraudAttorneys: Nancy E. Maroney and StevenL. Hoffman, Attorney General’s office,Boston

$7.5 M Case name withheld (Wheelabrator)Incinerator operator allegedly violated Haz-ardous Waste Management ActAction: EnvironmentalAttorneys: Andrew Rainer, Christopher K.Barry-Smith, Betsy Harper, Emily M. Arm-strong and Matthew T. Connolly, AttorneyGeneral’s office, Boston

$6 MCase name withheld (UBS)Swiss financial giant accused of fraudulentconduct in municipal bond derivatives Action: FraudAttorneys: Martha Coakley, Mary B. Free-ley and Aaron B. Lamb, Attorney General’soffice, Boston

$2.8 MCase name withheld (Walgreens)Pharmacy chain allegedly overcharged forprescription drugs Action: FraudAttorneys: Peter W. Leight and Glenn S. Ka-plan, Attorney General’s office, Boston

$2.1 MCase name withheld (Rite Aid)Drugstore operator accused of overbilling Action: Fraud Attorney: Martha Coakley, Attorney Gen-eral’s office, Boston

$2 MCase name withheld (J.P. Morgan Chase)National bank allegedly engaged in bid-rig-ging, other anti-competitive conduct Action: FraudAttorneys: Martha Coakley, Mary B. Free-ley and Aaron B. Lamb, Attorney General’soffice, Boston

$1.3 M Case name withheld (Maxim HealthcareSystems)Health care firm accused of submitting falseMedicaid claimsAction: FraudAttorney: Martha Coakley, Attorney Gen-eral’s office, Boston

$1 M Case name withheld (National Grid)Utility accused of responding inadequate-ly after snowstorm Action: Negligence & tortAttorney: Martha Coakley, Attorney Gen-eral’s office, Boston

Cite this page 40 MLW 925 | masslawyersweekly.com January 23, 2012 | Massachusetts Lawyers Weekly | 13

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Reported settlements of $1M and more in 2011YEAR IN REVIEW

$31 M Palomar Medical Technologies Inc., et al. v.Candela Corporation, et al.Companies settle patent dispute over hair re-moval systemsAction: Patent & trademarkAttorneys: Wayne L. Stoner, Vinita Ferrera,Katie M. Saxton, Christopher R. Noyes, Dim-ple Chaudhary and Leslie Stierman, Wilmer-Hale, Boston

$12.4 M DeLeo, et al. v. Bouchard TransportationCompany, Inc., et al.Barge spills 98,000 gallons of oil along Mass.,R.I. coastlineAction: Negligence & tortAttorney: Martin E. Levin, Stern, Shapiro,Weissberg & Garin, Boston

$7.2 M Case name withheldPlumber dies after decades of asbestos expo-sureAction: Negligence & tortAttorneys: Edward P. Coady, Christopher P.Duffy and David W. Fanikos, Coady LawFirm, Boston

$7 M Zhuang, et al. v. Herlihy, et al.Doctors allegedly fail to inform expectantmother of fetal genetic disorder testAction: Medical malpracticeAttorneys: Frederic N. Halstrom, HalstromLaw offices, Boston; Max Borten, Gorovitz& Borten, Waltham; and Catherine M. Geary,Geary & Geary, Lowell

$7 M Case name withheldDriver ejected after alleged pothole causesspinoutAction: Negligence & tortAttorneys: Patrick T. Jones and Robert A.DeLello, Cooley, Manion, Jones, Boston

$7 M Wechter/Black v. Cranwell Management Corp.Resort allegedly failed to remit proceedsfrom tips to staffAction: EmploymentAttorneys: Paul Holtzman and Richard M.Bluestein, Krokidas & Bluestein, Boston

$5.45 M Case name withheldHealth providers accused of missing signs ofchild abuse Action: Medical malpracticeAttorneys: David A. Barry, Jeffrey S. Sternand Anthony V. Agudelo, Sugarman, Rogers,Barshak & Cohen, Boston

$5 M Case name withheldIronworker falls through shielding on bridgeproject Action: Negligence & tortAttorneys: Douglas K. Sheff and Stephen J.Chiasson, Sheff Law offices, Boston

$4 M Case name withheldContractor hurls tiles off roof, strikes workerAction: Negligence & tortAttorneys: Paul F. Leavis and Deborah M.Santello, Leavis & Rest, Boston

$4 M Case name withheldInsurer refuses to cover building’s five-floorcollapseAction: InsuranceAttorney: Valeriano Diviacchi, DiviacchiLaw office, Boston

$3.8 M Case name withheldPatient incurs brain damage after IV fails tofunctionAction: Medical malpracticeAttorney: Barry C. Reed Jr., Reed & Gior-dano, Boston

$3.5 M Case name withheldCollege student struck on campus by drunkdriverAction: Motor vehicle negligenceAttorney: Neil Sugarman, Sugarman & Sug-arman, Boston

$3.5 M Case name withheldTiming of newborn’s brain bleed disputedAction: Medical malpracticeAttorneys: Andrew C. Meyer and Robert M.Higgins, Lubin & Meyer, Boston

$3.18 M Case name withheldRusted scissor lift crumbles under workers’feet Action: Negligence & tortAttorney: Brian C. Dever, Keches LawGroup, Taunton

$3.1 M Case name withheldCo leaks into residence from chimney, injur-ing mother Action: Negligence & tortAttorneys: Paul E. Mitchell and John C. DeS-imone, Mitchell & DeSimone, Boston

$3.1 M Case name withheldBar allegedly overserved patrons during vod-ka promotionAction: Dram shopAttorneys: Robert W. Casby, Benjamin Zim-mermann and Allison M. Ciullo, Sugarman& Sugarman, Boston

$3 M Case name withheldNurse gives unauthorized paralyzing agentto newbornAction: Medical malpracticeAttorneys: Lisa G. Arrowood, Jed DeWickand Alexis D’Arcy, Todd & Weld, Boston

$3 M Case name withheldPatient’s neck pain evolves into partial quad-riplegia Action: Medical malpracticeAttorneys: Andrew C. Meyer and Robert M.Higgins, Lubin & Meyer, Boston

$3 M Case name withheldMother claims fetal monitor showed baby indistressAction: Medical malpracticeAttorneys: Andrew C. Meyer and Krysia J.Syska, Lubin & Meyer, Boston

$3 M Case name withheldPatient’s brain bleed mistaken for migraineAction: Medical malpracticeAttorney: Jeffrey S. Raphaelson, Raphaelson& Raphaelson, Boston

$3 M Case name withheldBaby suffers brain damage after undergoingdistress in laborAction: Medical malpracticeAttorneys: Andrew C. Meyer and Krysia J.Syska, Lubin & Meyer, Boston

$2.82 M Durlacher v. LeitnerNecrotic bowel removed from Crohn’s pa-tientAction: Medical malpractice Attorney: Keith S. Halpern, Wellesley

$2.8 M Case name withheldLaborer allegedly exposed to asbestos for 20years Action: Negligence & tortAttorneys: Edwin L. Wallace and Andrew S.Wainwright, Thornton & Naumes, Boston

Continued on page 14

14 | Massachusetts Lawyers Weekly | January 23, 2012 masslawyersweekly.com | Cite this page 40 MLW 926

$2.8 M Case name withheldBaby left brain-damaged after delayed delivery Action: Medical malpracticeAttorneys: Andrew C. Meyer and Krysia J.Syska, Lubin & Meyer, Boston

$2.5 M Case name withheldForklift driver struck by pallet truck loses legAction: Negligence & tortAttorneys: Stephen W. Sutton and Donald P.Healy, Law offices of Stephen W. Sutton,Brockton

$2.5 M Case name withheldDoctor awakens from spinal surgery withquadriplegiaAction: Medical malpracticeAttorneys: Patrick T. Jones and Donna R.Corcoran, Cooley, Manion, Jones, Boston

$2.5 M Case name withheldBoy’s untreated meningitis leads to lifelongdisabilityAction: Medical malpracticeAttorneys: Andrew C. Meyer and Adam R.Satin, Lubin & Meyer, Boston

$2.45 M Case name withheldBacterial infection spreads to patient’s eye,causing blindnessAction: Medical malpractice Attorneys: Barry D. Lang, Newton; and Dr.Max Borten, Gorovitz & Borten, Waltham

$2 M Case name withheldDoctors mistake bowel perforation for con-stipationAction: Medical malpracticeAttorneys: Andrew C. Meyer and William J.Thompson, Lubin & Meyer, Boston

$2 M Case name withheldAnesthesia complications lead to patient’sdeathAction: Medical malpracticeAttorneys: Andrew C. Meyer and William J.Thompson, Lubin & Meyer, Boston

$2 M Case name withheldStudent has brain hemorrhage after 20 hoursin ERAction: Medical malpracticeAttorneys: Andrew C. Meyer and Robert M.Higgins, Lubin & Meyer, Boston

$2 M Case name withheld

Doctors allegedly fail to properly treatmelanomaAction: Medical malpracticeAttorneys: Andrew C. Meyer and Robert M.Higgins, Lubin & Meyer, Boston

$2 M Case name withheldInsurer accused of mishandling malpracticeclaims Action: InsuranceAttorneys: Andrew C. Meyer and Adam R.Satin, Lubin & Meyer, Boston

$2 M Case name withheldWoman incurs anoxic brain injury whileemerging from anesthesiaAction: Medical malpracticeAttorneys: Andrew C. Meyer and Krysia J.Syska, Lubin & Meyer, Boston

$2 M Case name withheldCancer patient alleges intentional spoliationof test results by PCPAction: Medical malpracticeAttorneys: Andrew C. Meyer and Adam R.Satin, Lubin & Meyer, Boston

$2 M Case name withheldInexperienced worker electrocuted by livecircuitAction: Negligence & tortAttorneys: Ralph F. Sbrogna and Roger J.Brunelle, Sbrogna & Brunelle, Worcester

$1.95 M Case name withheldLaborer’s post-fall brain damage disputedAction: Negligence & tortAttorneys: Douglas K. Sheff, Frank J. Federi-co Jr. and Donald R. Grady Jr., Sheff Law of-fices, Boston

$1.9 M Case name withheldUntrained worker struck by boom he dis-connectedAction: Negligence & tortAttorney: Michael R. Rezendes, RezendesLaw Group, Quincy

$1.75 M Case name withheldRadiologist interprets only part of MRI; pa-tient diesAction: Medical malpracticeAttorneys: Elizabeth N. Mulvey, Philip J.Crowe Jr. and Barbara M. Welch, Crowe &Mulvey, Boston

$1.75 M Case name withheldVietnam vet’s fall allegedly triggers latentPTSD

Action: Slip, trip & fallAttorneys: John J. Carroll, Leo V. Boyle, Va-lerie A. Yarashus and Victoria M. Santoro,Meehan, Boyle, Black & Bogdanow, Boston

$1.74 M Case name withheldCardiologist allegedly misreads stress test Action: Medical malpracticeAttorneys: Andrew C. Meyer and Adam R.Satin, Lubin & Meyer, Boston

$1.7 M Case name withheldWorker loses partial hearing, vision in gasexplosion Action: Negligence & tortAttorneys: Amy G. Wanger, Stoneham;Stephen I. Lipman, Stoneham; and Robert D.Ahearn, Quincy

$1.65 M Case name withheldWorker catapulted from cherry picker in col-lisionAction: Motor vehicle negligenceAttorney: Darin M. Colucci, Colucci, Coluc-ci, Marcus & Flavin, Milton

$1.65 M Case name withheldPsychiatrist initiates sexual relationship withpatientAction: Medical malpracticeAttorneys: Andrew C. Meyer and Krysia J.Syska, Lubin & Meyer, Boston

$1.55 M Case name withheldWoman who cared for aunt and uncle shutout of will Action: Wills & trustsAttorney: Patricia Noyes-Corrigan, Gargiu-lo/Rudnick, Boston

$1.5 M Case name withheldMan’s vision damaged in post-crash surgery Action: Medical malpracticeAttorneys: Michael J. Harris and ElizabethN. Mulvey, Crowe & Mulvey, Boston

$1.5 M Case name withheldDoctor failed to offer cancer screenings topatient Action: Medical malpracticeAttorneys: Andrew C. Meyer and William J.Thompson, Lubin & Meyer, Boston

$1.5 M Case name withheldER nurse misdiagnoses patient’s life-threat-ening conditionAction: Medical malpracticeAttorneys: Andrew C. Meyer and Adam R.Satin, Lubin & Meyer, Boston

$1.5 M Case name withheldYoung man paralyzed after delay in spinalinjury treatment Action: Medical malpracticeAttorneys: Andrew C. Meyer and Robert M.Higgins, Lubin & Meyer, Boston; and DanielShapiro, Boston

$1.5 M Case name withheldDoctors allegedly misread pap smear, patienthas hysterectomyAction: Medical malpracticeAttorneys: Andrew C. Meyer and Robert M.Higgins, Lubin & Meyer, Boston

$1.5 M Case name withheldPostoperative wound infection leads to pa-tient’s death from sepsisAction: Medical malpracticeAttorneys: Andrew C. Meyer and Adam R.Satin, Lubin & Meyer, Boston

$1.45 M Case name withheldClinic misdiagnoses woman’s rare, blindingdisorderAction: Medical malpracticeAttorney: Norman J. Kaplan, Boston

$1.4 M Case name withheldPhysician accused of negligently treatingblood clotAction: Medical malpracticeAttorneys: Andrew C. Meyer and Robert M.Higgins, Lubin & Meyer, Boston

$1.4 M Fay v. Faytex Corp.Father fires son from family business after 30 years Action: EmploymentAttorney: Adam P. Whitney, Morisi & oat-way, Quincy

$1.35 M Case name withheldLivery driver crashes with boy riding in backseatAction: Motor vehicle negligence Attorneys: Neil Sugarman and James M.Casby, Sugarman & Sugarman, Boston

$1.3 M Case name withheldBoston restaurant allegedly withheld tipsfrom waitstaffAction: Labor Attorney: Shannon Liss-Riordan, Lichten &Liss-Riordan, Boston

$1.25 M Case name withheldJob applicant injured at delivery co.’s warehouse

Continued from page 13

Reported settlements of $1M and more in 2011YEAR IN REVIEW

Cite this page 40 MLW 927 | masslawyersweekly.com January 23, 2012 | Massachusetts Lawyers Weekly | 15

Action: Premises liabilityAttorneys: Eric J. Parker and Susan M.Bourque, Parker Scheer, Boston

$1.25 M Case name withheldMedication error allegedly leads to woman’sfatal hemorrhageAction: Medical malpracticeAttorneys: Andrew C. Meyer and William J.Thompson, Lubin & Meyer, Boston

$1.25 M Case name withheldDoctors allegedly fail to diagnose lung can-cer in elderly cardiac patient Action: Medical malpracticeAttorneys: Valerie A. Yarashus, PeterAinsworth and John J. Carroll, Meehan,Boyle, Black & Bogdanow, Boston

$1.25 M Case name withheldMammogram reading disputed in woman’sadvanced cancer diagnosisAction: Medical malpracticeAttorneys: Andrew C. Meyer and NicholasD. Cappiello, Lubin & Meyer, Boston

$1.23 M Case name withheldVehicle carrying twin brothers strikes tree,killing one Action: Motor vehicle negligenceAttorneys: Ralph F. Sbrogna and Roger J.Brunelle, Sbrogna & Brunelle, Worcester

$1.2 M Case name withheldLifeguard allegedly scoffs at camper’s distresscallAction: Negligence & tortAttorney: Robert E. Mazow, Mazow & Mc-Cullough, Salem

$1.2 M Case name withheldPatient dies in sleep without required air ma-chineAction: Medical malpracticeAttorney: Philip J. Crowe, Crowe & Mulvey,Boston

$1.2 M Case name withheldElderly driver hits parking attendant in‘nightmare’ lotAction: Motor vehicle negligenceAttorney: Martin Kantrovitz, Boston

$1.2 M Case name withheldDoctors allegedly fail to recognize bacterialinfection in 10-year-old girlAction: Medical malpracticeAttorneys: Andrew C. Meyer and Robert M.Higgins, Lubin & Meyer, Boston

$1.16 M Case name withheldWoman accuses uncle of depleting mother’strust fundAction: FraudAttorneys: Steven E. Gurdin and John Miller,Sally & Fitch, Boston

$1.1 M Case name withheldDetainees claim jail’s strip search unconstitu-tionalAction: Civil rightsAttorney: Howard Friedman, Boston

$1.1 M Case name withheldStalled motorist struck by bus while chang-ing tireAction: Negligence & tortAttorneys: Stephen Sugarman and DavidMcCormack, Sugarman & Sugarman,Boston

$1.1 M Case name withheldPatient dies of heart attack after EKG inter-preted as respiratory illness Action: Medical malpracticeAttorneys: Andrew C. Meyer and Krysia J.Syska, Lubin & Meyer, Boston

$1 M Case name withheldTenants suffer cognitive defects after lead ex-posure Action: Negligence & tortAttorneys: Benjamin Hiller and Edmund P.Daley, Moquin & Daley, Boston; HowardSasson, Sasson, Turnbull, Ryan & Hoose,Northampton

$1 M Case name withheldWoman dies from heart attack after EKGmisinterpretedAction: Medical malpracticeAttorneys: Andrew C. Meyer and William J.Thompson, Lubin & Meyer, Boston

$1 M Case name withheldMisread pap smear results in delay in cancerdiagnosis Action: Medical malpracticeAttorneys: Andrew C. Meyer and William J.Thompson, Lubin & Meyer, Boston

$1 M Case name withheldEMTs accused of negligence in preemie’sdeath Action: Medical malpracticeAttorneys: Andrew C. Meyer and William J.Thompson, Lubin & Meyer, Boston

$1 M Case name withheldPatient left blind in one eye after sinus surgeryAction: Medical malpracticeAttorneys: Andrew C. Meyer and Robert M.Higgins, Lubin & Meyer, Boston

$1 M Case name withheldElderly woman dies from insufficient bloodsupply during gallbladder removalAction: Medical malpracticeAttorneys: Andrew C. Meyer and BenjaminR. Novotny, Lubin & Meyer, Boston

$1 M Case name withheldFailure to biopsy mole allegedly leads to de-lay in cancer diagnosisAction: Medical malpracticeAttorneys: Andrew C. Meyer and Krysia J.Syska, Lubin & Meyer, Boston

$1 M Case name withheldDoctors allegedly miss telltale signs of boy’s

bowel obstructionAction: Medical malpracticeAttorneys: Andrew C. Meyer and Robert M.Higgins, Lubin & Meyer, Boston

$1 M Case name withheldSpinal compression behind boy’s leg painmistaken for diabetesAction: Medical malpracticeAttorneys: Andrew C. Meyer and BenjaminR. Novotny, Lubin & Meyer, Boston

$1 M Case name withheldSigmoidoscopy fails to detect patient’s cancerAction: Medical malpracticeAttorneys: Andrew C. Meyer and NicholasD. Cappiello, Lubin & Meyer, Boston

$1 M Case name withheldPatient’s untreated neurological conditionleads to permanent injuryAction: Medical malpracticeAttorneys: Andrew C. Meyer and NicholasD. Cappiello, Lubin & Meyer, Boston

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Reported settlements of $1M and more in 2011YEAR IN REVIEW