Barrister's blog

The Normal Heart, 10,000 Hemophiliacs and the 33rd Anniversary of AIDS Discovery

I spent 6 years of my 32 year career as a trial lawyer working on two cases involving hemophiliacs that died from HIV infected clotting concentrate. One case went to trial in Worcester; the story of a courageous young man, Bill Modestino and his marvelous family.  The other, the story of Will Demers, a talented boy who played the National Anthem on trumpet at Fenway Park and once did a play with Paul Newman at the Hole in The Wall Camp. A link to the story about the Modestino trial is attached below. During that trial, we obtained a jury verdict in which the jury acknowledged that patients and their parents were not adequately informed about the risk of death after the CDC warnings of 1981 and 1982.

http://www.bierlaw.com/william-modestino%2c-jr.html

June 5th, 2014 will be the 33rd anniversary of the discovery of what later became known as AIDS. There has been much discussion recently about what is still a worldwide epidemic with the HBO film that aired this weekend. The story of the blight and devastation experienced by the gay community is well known and  cannot be told enough. On the other hand, the story of what happened to over 10,000 hemophiliacs infected by blood products that were manufactured with blood supplied by thousands of donors remains largely untold. And so many of these hemophiliacs were infected as children. They were not told the truth and they were being killed by the very products that they believed were giving them a better life.

I understand that the Committee of Ten Thousand is working on the creation of a Memorial, perhaps to be located in San Francisco as a tribute to the ten thousand. From my perspective that is not enough. I got to know many of these people and their families. Their story should be told and they cannot be forgotten.

Bruce

Our New Website

Websites are like the paint in your bedroom. After a while, you get bored with the color and desire a change.

So, for months, we've been working with Wellfleet's own Darren Wotherspoon to come up with a new bright design, with photo's, video and staff bio's. Check it out at www.bierlaw.com.

Of course, the most important thing is always "the work" and nothing is more important than the results we get for our clients.

 

Bruce

A Very Dirty Secret: Rape on College Campuses

In todays Boston Globe there is a story by Marcella Bombardieri headlined "Students Efforts Put Sex Assaults in Spotlight". In summary, the story discusses the inexplicable failure of colleges nationwide (The Dept. of Education is investigating 55 schools, 6 in Massachusetts) to adequately address student complaints. It goes on to discuss the stepped up enforcement of Title IX (mandating gender equity on campuses) and also goes on to discuss how colleges have attempted to cover up such assaults.

Frankly, this failure on the part of college administrators is disgusting and I have experienced this failure, first hand, in a case I handled over 10 years ago against a student and Boston College. The case was ultimately the subject of a column by now Boston Globe editor Brian McGrory.

My client was a BC student that was raped at a frat party. She was drugged and then raped in a bedroom by one student while another student watched from a closet (a practice that I learned was a common occurrence; one raped and one or more watched). The young woman was so drugged that she threw up during the incident.

The young woman was so ashamed, she didn't report the incident for over 6 months, and also attempted suicide. Since no rape kit was taken, the Suffolk County DA refused to prosecute after the rape was reported. In addition, the perpetrator was the son of a well known high profile BC alum. So, as you might suspect, BC administrators put their heads in the sand.

So; we filed a civil suit and hired a private investigator. Wouldn't you know it, but we immediately uncovered witnesses who had remained silent. They confirmed the horrific act. One was so ashamed he left BC. The case settled just before trial, with payment by the perpetrators family, but no payment by BC.  I'm happy to report that our client left BC, enrolled in a college in the south, and has gone on to become a highly ranked official with significant responsibilities in the federal government. I usually hear from her once every couple of years and her happiness and success has always been a source of great pride for me.

After the settlement, there were some articles in BC newspapers condemning the schools ambivalence towards such behavior, but over ten years later, it appears that the cover ups and the questioning on the victims credibility continues. As I said; simply disgusting.

On all fronts; federal government, local prosecutors and college officials; these acts must be taken seriously and there should be aggressive pursuit of the perpetrators on both the criminal and civil side of the courtroom. These are acts of life altering violence and they must be treated as such. 

Bruce

Massachusetts NonCompete Agreements and the Their Future

I've written frequently about Non Compete Agreements in the past. Recently, I have had many Non Compete issues come up in representing both employers and employees. Of course, employers want to enforce them, and employees want to defeat them.

As a general rule, Non Compete Agreements are enforceable in Massachusetts as long as they are carefully drafted , reasonable in scope and geography and seek to protect the legitimate proprietary interests of the employers. In addition, most Non Compete Agreements also contain Confidentiality provisions, and those are enforceable as well, as long as the information sought to be protected is truly proprietary to the employer and not "public domain" information. Where a judge feels an Agreement is enforceable in some respects, and not others, the court has the ability to enforce some provisions and not others.

Suffice it to say that I have seen some terribly drafted Non Compete Agreements. When representing an employee, I have been successful in defeating the Agreements when they are ambiguous, overly broad, or where the employer failed to live up to their end of the bargain, i.e breached it's Agreement with the employee.

If you are an employer, you should never present a Non Compete to an employee that has not been carefully crafted for the particular situation, or where recent case law has not been reviewed. Non Compete cases come down from the Appeals courts on a regular basis. If you're an employee, make sure you're represented by counsel when presented with such an Agreement. I can't tell you how many employees, on all levels, management and otherwise, that come into my office and say "I didn't think these things were enforceable".

Finally, legislation is before the state legislature that could, if passed, significantly restrict the use of Non Compete's. Lawyers that practice in this area are watching this closely and every such Agreement now in force may have to be modified depending upon the legislation that passes.

 

Employer or employee. Make sure you're protected!

Bruce

The Human Toll of Corporate NonDisclosure

In todays NYTimes, an article entitled "GM Calls the Lawyers" discusses GM's hiring of lawyers that previously did work for the company to conduct an internal investigation into why the company failed "for more than a decade" to alert consumers to a defect in the ignition system resulting in multiple deaths. It relates that the investigator in another case involving Lehman billed over $40million to conduct a similar investigation.

Now; let's be real. Before $40mill is spent again, does anyone not know exactly why this non disclosure occurs? MONEY and no concern for human life is the answer.

Over 20 years ago, I had a case against a major firearms manufacturer, then a division of one of the largest corporations in America. My client, a police officer blew off the top of his right foot while hunting when his rifle discharged with the safety on. Our expert had been involved in many cases through the years involving the same rifle where people were maimed or killed as the result of unexpected discharge of the rifle. One of those David and Goliath cases to be sure. Well; to make a very long story short, one weekend, my paralegal (who later became my wife) and I were in a room in at the  Chicago defense lawfirm to review thousands of documents, not organized, in hundreds of bankers boxes. Towards the end of the weekend, Nancy showed me a document that left her speechless. In effect, the document indicated that the company had been aware of the safety defect for years, but had decided to simply pay the claims for personal injury or death rather than recall all the firearms and retool the rifles. The case settled within weeks. Since then, there has been much media coverage over the years about this particular company and product defect.

The Ford Pinto case; pharmaceutical cases; firearm cases; flammable pajamas; snowblowers....the list is endless. Plaintiff trial lawyers always get a bad rap and are usually down there on the public perception food chain. However, without individual trial lawyers taking on cases against large corporations, we would not have had necessary manufacturing or design changes in products that maim or kill. So; lets take that 40mill to tell us what we already know and rather, spend it on fixing the GM ignition system defect and save some lives. Of course, if corporations didn't take decades to disclose known risks associated with their products, that would help, as well.

Cape Accidents and Insurance Claims Adjusters

Don't get me wrong. Some of my best friends are claims adjusters. The only problem is, I don't want them talking to my clients, or potential client, after an accident.

Let's begin with the premise that you've been injured in an accident where someone else is at fault. Let's use an 18 year old female driving a Jetta who was texting and rear ended you on Rte. 6 during a snowstorm (just a hypothetical, of course). You end up in the CCH ER with a herniated disc at L5-S1. Your job involves manual labor, and you have a house with a mortgage and 2 kids in high school. You and your wife work multiple jobs to make ends meet. First, let's hope you have adequate "UnderInsurance" coverage (a topic for another day).

The next day you get a phone call, or later, a follow up letter from a claims adjuster for the carrier that insures the 18 year old. First, he or she expresses sympathy and says "don't worry, your medical bills will be taken care of". Next come some questions like "so, you're now feeling better". You may say yes because you feel better than you did yesterday, but the adjuster will take that to mean you feel fine, even though you may still be in pain. This may be one of a series of questions that could or will be used at a later date to reduce the value of your legitimate claim. And you wouldn't even have a clue that you were being interrogated in a way intended to pay you less than your claim is worth.

There are many examples to further illustrate the discussion above. The lesson. If you have been injured as the result of someone else's fault, do not speak to anyone representing the at fault party unless you have retained competent counsel. On the Cape, we know that both winter and summer often bring out the worst in folks that are in a hurry or not being careful. Make sure that your rights are being protected.

Bruce

Are You Helping to Buy Your Financial Adviser's Maserati?

In the past 18 months, our office has recovered over $1.2million for elder clients that were victimized by financial scams. My readers know well how I feel about this particular issue.

As a further example of the traps for the unwary investor comes an article in this weekends Wall Street Journal authored by Jason Zweig. Zweig writes about a San Francisco company , Table Bay Financial Network. Table Bay, apparently, trains CPA's and financial advisers. It also markets retirement products, including annuities.

Here's where it gets good! One adviser gave Zweig  emails he had received from Table Bay. One offered a Maserati to advisers who sell at least $7.5million in annuities in 2014 and a range Rover, BMW or Porsche for at least $6million in sales. The other email discussed a seminar featuring an annuity paying a 9% commission! The seminar flier promised that the seminar would help convert "shoppers" and "platelickers" into customers producing "HUGE commissions". Now, I could go on about the lawsuit history of the company's president and head of marketing. But; you get the point.

Allow me to use an analogy. Years ago, I was in an internet stock club. There was one stock that was the rage of the group, and everyone owned it but me. The members joked and called me too conservative. My reason for not buying the stock was simple. After reading everything I could about the stock, I couldn't figure out how the company made money. So, it was not for me. The name of the company; ENRON. Again; you get the point.

Why would you behave any differently when dealing with your own financial adviser? Of course, as in every profession, there is the good and the bad. But remember that most people that call themselves financial advisers have a fiduciary duty towards their clients to only sell products that are "suitable" for the investor, taking into consideration their investment horizon, appetite for risk and volatility, age and many other factors. How much commission they make on a product is not one of those factors. I have been involved in cases in the past in which we discovered the incentives that were provided to advisers by large brokerage houses to sell in house products. The adviser would be paid more to sell an in house product, very often an annuity or life insurance product, rather than something more suitable for their client. Suffice it to say, we won those cases.

So, as I always say, beware. Even if your adviser is a friend, if a product is recommended, don't be afraid to ask why it's being recommended and what commission is being earned on the product. Ask if the product is best for you and if the adviser is acting in your best interest. And; if you don't understand how the product works...run in the opposite direction!

Bruce

Beware the Financial Scammers and Rogues

I'm pleased to report that last week we settled yet another case for an elder client that had her life savings depleted by the premiums associated with a life insurance policy that she purchased through a financial adviser. The policy was a totally unsuitable investment and  we were able to recover $250k for this client.

In the years that I have written this blog, I have probably written most frequently about financial scams and vulnerable elder targets. From my perspective, it could not be written about enough.

In Saturdays Wall Street Journal, it was reported that FINRA (Financial Regulatory Authority) is expanding a program to go after high risk brokers and firms. In effect, a new SWAT team will crack down on rogue brokers and their firms. Many of these brokers move from firm to firm and remain in the industry even after numerous arbitration claims had been filed against them. Many strategies are used by these brokers, including artificially inflating the price of a stock in order to reap a profit from the inflated price.

I have frequently mentioned the things to watch out for when being approached with a solicitation from a financial adviser. I will do this again in another post. However, it bears repeating that these crooks will stop at nothing to separate you, or your vulnerable parents, from your/their life savings.

I would note that none of my cases have been against Cape based professionals, although one involved an adviser that did speak at a local community center and then went to the victims home.

More later, but watch out for your pocketbook in the New Year!

Bruce

In Your Business; Put It In Writing!

Many years ago, I represented a client in a trial involving an alleged oral agreement with a business partner. We won the case, but only after a trial and a great deal of angst and expense. The client bought me a teeshirt afterwards that said "Put It In Writing".

A recent decision of the Massachusetts Superior Court illustrates the importance of all such agreements being in writing.

In a case involving a minority shareholder that left to form her own company, Judge Patrick Brady (a very experienced trial court judge), ruled that even though the minority shareholder did owe a fiduciary duty to the company she left, in the absence of an employment agreement or a non compete agreement, there was nothing that prevented her from leaving and using her actuarial skills to earn a living. The company from which she departed had alleged that the resignation left it unable to service many of it's clients in the public sector. Judge Brady went on to further rule that the company could engage in efforts, including hiring someone new, to get that work done.

I could not even to begin to chronicle the number of times I have been in court over 32 years because someone in business came to me and claimed they had an "oral" agreement with a business partner or another party; what we call "he said/she said" cases. 

If you have an agreement; put it in writing and don't leave things to chance. 

Bruce

Emptying the Drawer; Aylmer, Menino, Timilty and Fond memories

As readers know, I was very fortunate to have worked in the State House from 1976-82, while attending law school from 78-82 (Suffolk Law School's 4 year evening program).

From 1976-80, I worked in the office of Jack Aylmer, State Senator from the Cape and Islands, mostly drafting legislation.  "Jack" as he was known to his constituents was a politically moderate Republican who did great things for his district and was a pleasure to work for. When "Jack" became "Admiral" Aylmer and took over Mass Maritime in 1980, I still had two years left in law school. Fortunately, I didn't go without a job for 5 minutes. In those days, word traveled fast in the State House halls. Andy Warren, a legislative staffer for Senator Joe Timilty from Boston had become General Counsel for the MBTA. Joe needed an experienced legislative aide to work legislation for the Committee he chaired in the Senate on Housing and Urban Development. After a 3 minute interview with Joe and Tom Menino, I moved from Jack's office to Joe's office. Two fascinating years followed and I worked on many challenging projects including bonding issues for affordable housing and Boston's condominium conversion legislation. Joe was a bit more "intense" than Jack, but also a pleasure to work for. 

Now; what prompts this blog today? In today's Boston Globe, Yvonne Abraham's column is about two wonderful ladies I had the pleasure to work with; Peggy Gannon and Martha Pierce. As I recall, my desk was next to Tom's and Peggy's and Martha's and Maryanne Burnes were across the room. Martha and Peggy did for Joe much of what they would later do for Tom in City Hall for the next 20 years. It was a friendly and dedicated staff and much was accomplished. From pictures I've seen on Facebook, Martha looks like she hasn't aged a day, and according to Abraham's column, Peggy is still as private a person as she was then.

Well; as often happens, people move and their careers take different directions. I started a trial practice in Canton in 1982, before returning to Boston in 1987. I'm not sure why I fell out of touch with the old gang, but did. I do recall one day when Tom and I sat next to each other getting our shoes shined. Somehow Tom knew that I was working on Joe Kennedy's finance committee (when Joe was running for Governor), and it was clear, at least at that time, that Tom had a problem with Joe, although I can't recall why. In any event, I have always marveled at the spectacular career this man has had that sat next to me for 2 years a long time ago. Congrats Mr. Mayor!

But; what I really wanted to do  was say hello again to Martha and Peggy and congratulate THEM on their careers of dedication and accomplishment. The column today made me smile and laugh; particularly when Peggy left the room after Tom started to talk about her. I wish them all the best as their lives move on to the next challenge.

Bruce

Pages