Cape Cod Barrister

Outer Cape Health and Urgent Care Services

For those of us that live on the Outer Cape, I'm sure everyone has a story about an injury they sustained and then favored home treatment rather than trekking to Cape Cod Hospital. I have one such story involving an onion, a thumb and a rather sharp knife. You should have seen the blood!

As an officer of OCHS, I am thrilled that after much discussion by the board and our CEO, Roberta Berrian, M.D. we have recently intiated urgent care services at our PTown and Wellfleet facilities. Of course, there are still cases that will have to be sent to CCH. However, for a variety of illnesses and accidents (those requiring suturing, for example), patients will be able to be treated here rather than going to Hyannis.

Our program is run in conjunction with our practice partner, Beth Israel Deaconess and will be staffed this summer by BIDMC trauma doctors that will be housed here throughout the summer. Jayne Sheehan, Senior VP of Emergency Services at BIDMC has been an enormous support to us in getting this project off the ground.

We are grateful that we are able to provide this summer service to our patients and summer visitors.

Bruce Bierhans

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Herb and Dorothy/A Love Story

Warning: This post has absolutely nothing to do with the law.

This past weekend, I had the privilege of meeting Herb and Dorothy Vogel. The Payomet Center for the Performing Arts in Truro, on which I sit as a Trustee, was fortunate to be able to show the documentary "Herb and Dorothy/A Love Story". In a word, the film is AMAZING!

Herb and Dorothy Vogel, in a still from the film. Courtesy of HerbandDorothy.com

Herb was a postal worker in New York and Dorothy was a librarian. They lived on one salary and with the other, amassed one of the most important contemporary art collections in history. They did this living in a rent controlled apartment with their turtles, fish and Archie the cat. They spent their days meeting unknown artists in NYC and buying art directly from the artists.

Although their collection is worth millions, the Vogels have donated half of it to The National gallery in D.C. and are presently involved in a program which will place some of their collection in a museum in every state in the country.

Meeting Herb and Dorothy at the tent was an incredible thrill. Herb can no longer walk, but their enthusiasm for what they accomplished was a joy to witness. It was also humbling to be in the presence of people that have given so much and expected nothing in return.

You can read about this incredible couple at www.herbanddorothy.com. The film has already won many awards and  is starting to run nationwide. If it comes to one of our local art houses, such as Cape Cinema, DO NOT MISS IT! It is amazing, funny  and an experience you won't soon forget.

More shameless self promotion...Payomet has a summer of similar wonderful events lined up, including films, musical performances and even a Yiddish Cultural Festival. Check things out at www.ppactruro.org.

Bruce Bierhans

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David v. Goliath Cases: What Would Have Happened Without the Slingshot?

I've been at this legal thing going on 28 years. In all those years, I have always represented the "little guy" against the "big guy". The little guy doesn't just mean individuals. Very often, it means representing a small or medium size business against a much larger and more powerful adversary. The larger will always try to crush the small.

I'm reminded about this today because a potential business client with a claim against a formidable competitor asked me this week how he could possibly win against this foe that had done him wrong. First, I tell these folks that I have been handling cases against the mighty and powerful for years. Then, I ask them to think about what would have happened had David not used the slingshot against Goliath. Well, I say, in the legal business, we have our slingshots, as well.

The slingshots are many. First, technology has been a real leveler of the playing field. Although I did this before we had the tech we have today; it certainly is a help. I can crank out paper as fast as the fastest/largest law firm around. We also have the rules of procedure which are intended to ferret out the facts and evidence applicable to a case. For example, CEOs become timid when faced with their own internal emails. The wise and powerful often click the "send" button without thinking. This is not to say we don't have to fight for this information. I have yet to have a corporation voluntarily turn over a damaging piece of information or evidence without a fight and usually only after a court order. It isn't right, but it is part of the game. Finally, we have on our side the fight and tenacity of small firm trial lawyers. Most "little guy" lawyers are from small, lean trial firms that didn't go to Harvard to represent corporate America. We often went to schools like Suffolk Law and then hung out a shingle because we couldn't get jobs at the big firms. It may not be that way today, but it was 27 years ago when I graduated from law school. We learned how to practice law in the courtroom, not the boardroom.

How big are these adversarys? Over the years, my recall of some names on the other side of cases include Shell, Pfizer, Smith Nephew, Unisys Corp, Baxter, Johnson and Johnson and many many others. So...when you hear someone say they are afraid to assert or fight for their rights; remind them of David and the slingshot.

Bruce Bierhans

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That "Odor" You Smell Could be Damage to Property

A rose by any other name... NOT

Over the years, I have had many cases and inquiries involving alleged odors that caused illness. Examples include varnishes on floors, glues under carpeting and even methane gas in a condominium resulting from improper placement of a septic system.

This week, Mass. Lawyers Weekly reports that the 1st U.S Circuit Court of Appeals has ruled that a permeating odor could constitute "physical injury to property". While LW reports that this could have a significant impact upon liability carriers that may now have to defend or provide coverage for theses cases, it may also provide relief to homeowners or other persons that may have suffered injury or damage to property as a result of such conditions.

In 2000, a company hired Suffolk Construction as a general contractor to make improvements to office space. Suffolk contracted with a flooring company to install tile and carpet. When employees returned in 2001, they noticed offensive odors, and some complained of headaches. When the sub refused to redo the job, Suffolk had to pay 1.4mill to remediate the problem. Suffolk then sued the sub and a US Magistrate initially ruled that the insurer had no duty to defend because of "exclusions" in the underlying policy of the sub. The appellate court reversed, holding that "odor can constitute physical injury to property" under Massachusetts law, and that the remediation, which included bead blasting of the floor could be interpreted as "physical injury."

I have often had to fight for consumers against insurance companies that try to hide behind the multiple exclusions often found in homeowner insurance policies. Although this is a 1st circuit federal court case, it gives a good indication as to how our  state appeals courts may rule in similar circumstances. A potential victory for the consumer down the road; and one that doesn't leave a "bad taste" in your mouth.

Bruce Bierhans

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Record That Variance! After a Year, You're Out , Rules SJC

Very often, a homeowner recieves a variance for an addition, or some other structural change, and then sets about the process of obtaining other approvals such as those from the Planning Board or Board of Health. Sometimes, particularly if there are conservation issues, the process can take more than a year.

However, Mass. Lawyers Weekly reports this week that the Mass. SJC has ruled that a property owners failure to record his variance within one year of its' issuance prohibited him from moving forward.

The plaintiff owned a 14 acre parcel in Dracut. He wanted to subdivide the lot and the smaller lot required a frontage variance.  He didn't obtain approvals from the Planning Board, Board of Health and the Conservation Commission until after a year had elapsed since the grant of the variance. The building inspector then refused to issue a building permit.

The court, agreeing with a decision of a Land Court judge stated "...a variance does not take effect until it is recorded and that the recording of a variance within one year of its grant is necessary to exercise it...The variance could not become operative, and by implication, could not be exercised, until it was recorded."

For property owners that undertake this process without counsel, this is a very important decision.

Bruce A. Bierhans 

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