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General Law

What Are the Most Common Defective Products?

Common Defective ProductsIn a general sense, defective products are any products that do not work as they should. However, in a legal sense, a defective product typically refers to a product with a defect that harms someone. If you sustain an injury or suffer serious damages due to a defective product, you may be able to bring a lawsuit against the manufacturer of the product. Here’s what you need to know.

What Makes a Product Defective?

From a liability standpoint, defective products usually fall into one of three categories: defective manufacturing, defective design, or failure to provide adequate warning labels.

Defective Manufacturing

Defective manufacturing includes cases where a mistake in the manufacturing process leads to a dangerous product. Typically, the mistake only affects one or a few products.

Defective Design

In contrast, defective design refers to cases where the defect is part of the product’s design. For instance, the Takata airbags are a prime example of a manufacturing defect. The manufacturer designed and sold millions of airbags with defective inflators. When these airbags deployed, the casing around the inflators ruptured, causing metal shards to spray around the inside of the vehicle. This particular defect has been linked to at least 15 deaths.

Failure-to-Warn

Finally, failure-to-warn claims relate to cases where products do not have adequate warning labels. In one inadequate-warning case, the plaintiff suffered bodily harm due to water intrusion from a jet ski. In this situation, the jet ski had warnings to be aware of the water intrusion, but the warnings were not clearly positioned in a place where all operators would be likely to see them.

What Are the Most Common Defective Products?

All kinds of products have been cited as defective. Consumer products, motor vehicles, boats, cosmetics, and environmental products such as pesticides have all been involved in defective product lawsuits or recalls. Food and medicine also make the list.

Beyond those broad categories, some of the most common defective products include medical devices, pharmaceutical drugs, children’s toys, household appliances, cleaning products, and industrial equipment and machinery.

What Should You Do If You Are Injured by a Defective Product?

If you are injured by a defective product, seek medical attention and stop using the product immediately. If the issue eventually goes to court, you may need to prove that your injuries were related to the defective product. Take photographs, collect statements from medical professionals, and gather any other information you can. Then, contact an attorney as soon as possible to discuss your rights.

Are There Federal Agencies Overseeing Defective Products?

The Consumer Product Safety Commission, the National Highway Traffic Safety Administration, the United States Coast Guard, the Food and Drug Administration, the US Food and Drug Administration, and the Environmental Protection Agency all play a unique role in helping to protect consumers against dangerous and defective products, foods, and medications.

These six agencies have partnered together to create Recalls.gov. On this site, consumers can obtain product recall information and report defective products to the government.

Defective products can lead to serious injuries and even death. You do not deserve to suffer while a company profits from your misery. To get help, contact Mazow | McCullough, PC today by calling (855) 693-9084. We can start with a free consultation and help you decide how to move forward.

Why You Need to Keep Your Eyes on Product Recalls if You Have Children

Every year, children’s products are recalled due to safety problems, including the presence of lead. Whether a part on the product comes loose when it shouldn’t, creating a choking hazard, or the toy contains hazardous materials, when a company finds that a product of theirs could potentially cause injury to children they typically recall the product. However, many children can be injured before the product is actually formally recalled.

Toy Recalls Since 2008

From 2008-2016, according to the Consumer Product Safety Commission, a total of 453 children’s toys were recalled from the market. 172 of those recalls were in 2008 alone and 19 of those products contained lead. Although the number of recalled toys has drastically reduced in recent years, the fact remains that many toys are found to be unsuitable for children only after they are sold in stores.

Children’s Product Recalls in 2016

The above figures for toy recalls do not count children’s products that are not toys, like car seats, bottles and sippy cups, furniture, and other items designed for use by children but not for play. ABC News reports that in 2016, recalls for children’s products increased by 12% over the figures for 2015, resulting in 66.8 million units being taken off store shelves.

While some recalls are as simple as the design of a sippy cup preventing it from being cleaned properly, causing it to grow mold that could potentially result in illness, other unsafe products could cause a child’s death. For example, IKEA dressers manufactured between 2002-2016 had a fatal flaw: the dresser’s design allowed it to tip over easily, and resulted in the death of six children – all under the age of four – after the dresser fell on top of them.

How Parents Can Keep Children Safe

If you’re a parent, it’s important that you keep your eye on product recalls. Cribs, high chairs, toys, and other products can make it to market even if they are inherently dangerous. In many cases, the product’s flaws or defects are not discovered until children become injured, so it’s important to stay abreast of the latest product recalls to ensure that your children aren’t using items that could harm them.

What to Do If Your Child Was Injured By an Unsafe Product

If your child was injured or killed by a defective or unsafe product, it’s crucial that you get legal help as soon as possible. Product designers, manufacturers, and in some cases even stores, may be held responsible for allowing dangerous products to be made and sold to children. It may be possible to obtain justice for your little one and ensure the same doesn’t happen to other children through a product liability lawsuit.

At Mazow | McCullough, PC, we have the resources and skills to help you. Contact us today at 800-693-9074 for a consultation and learn more about your legal rights as the parent of an injured child.

The Difference Between Economic & Non-Economic Damages in Wrongful Death Claims

When filing a wrongful death claim, knowing how much your claim is worth can be a challenging issue. Taking the time to figure out the different types of damages while dealing with the grief of losing a loved one makes the task even more daunting. Sorting out the differences between economic and non-economic damages can be key to figuring out the amount of compensation you may be able to expect.

the-difference-between-economic-and-noneconomic-damages-in-wrongful-death-cases

Here is what you need to know.

Economic Damages

Economic damages are the expenses that can be concretely calculated. This can include property damage, medical bills, and funeral expenses. As a rule of thumb, if there is an explicit bill for it, it is an economic damage. Economic damages are typically easy to calculate by totaling the costs involved with a wrongful death.

Non-Economic Damages

Non-economic damages are more subjective than economic damages. These are damages that cannot be easily quantified or translated into monetary values. As a result, they can be difficult to calculate for a wrongful death claim.

These can include, but are not limited to:

Pain and Suffering

Pain and suffering includes the physical and emotional consequences of losing a loved one, including but not limited to:

  • Loss of enjoyment of life
  • Insomnia
  • Depression
  • Loss of Appetite
  • Lack of Energy
  • Mood Swings
  • Post-Traumatic Stress Disorder, in more extreme cases

Pain and suffering damages might also include lost wages if the emotional repercussions prevent the victim’s immediate family from returning to work. In a wrongful death case, the pain and suffering of both the victim and their loved ones may be compensable.

Loss of Consortium

Loss of consortium is a compensation for losing a family member. This type of damage is only recognized in cases involving extreme, permanent injuries or wrongful death. Loss of consortium seeks restitution for the loss of companionship, comfort, guidance, affection, love, or sexual relations that a family member provided.

In many jurisdictions, only spouses are allowed to seek loss of consortium damages. However, other jurisdictions have expanded their rules to include children in cases involving the loss of their parents.

Punitive Damages

If the court determines that the negligence or recklessness that led to a wrongful death was particularly egregious, they may also award punitive damages. These damages are meant as both punishment for the defendant and as a deterrent to future defendants in a similar position. Punitive damages are often capped at certain amounts, and they can also have minimum amounts. In Massachusetts, punitive damages for a wrongful death are at least $5,000 by law.

Proving Non-Economic Damages

Non-economic damages must be proven in court, and because they are rough monetary estimate of a personal experience they require a more diverse set of support than economic damages. Physical or mental therapy bills, medical reports, expert witness testimonies, photos of injuries, or prescription information can all help prove the extent of pain and suffering. For loss of consortium claims, courts often require a valid marriage license for spouses.

Calculating Non-Economic Damages

Calculating non-economic damages can be tricky by their very nature. There is no formula under Massachusetts law to assist in determining such damages. Jurors are only asked to use their wisdom, judgment and sense of basic justice to translate into dollars the amount which will fairly and reasonably compensate the plaintiff for his/her injuries. Only very recently, the Massachusetts legislature has changed the law to allow attorneys to suggest to a jury specific dollar amounts for a damage award. What this means as a practical matter is that, in addition to providing figures for medical expenses and lost earnings, a lawyer in Massachusetts can assist a jury in calculating non-economic damages.

Because non-economic damages such as pain and suffering are so subjective, and an attorney can suggest whatever dollar figure he or she can support with that evidence, there is a wide range of damage awards for seemingly similar injuries. It is the responsibility of the plaintiff’s lawyer to convey to the jury how each specific plaintiff has uniquely endured the consequences and hardships of an injury.

In order to understand the extent to which a jury would assess damages in a personal injury trial, the lawyer must understand the human and individual nature of a plaintiff’s damages.

Furthermore, it is imperative to provide credible support for such damages, including a well-prepared plaintiff who can articulate the damages, documentary support, and supportive, credible witnesses.

Conclusion

Receiving a fair compensation for a loved one’s wrongful death cannot bring them back, nor can it truly fill the void they leave behind. However, it can help ease the expensive medical bills and funeral costs that arise from a sudden death. Further, knowing that the liable parties have been held legally responsible can give some peace of mind in a time of great turbulence. If you’ve lost a loved one, contact Mazow | McCullough, P.C. today. We can help you seek justice by determining the value of your wrongful death claim, helping you file a claim, and assisting you through the civil suit process. Call today for a free consultation at (978) 744-8000.

How Do I File A Small Claims Complaint?

mazow-small-claims-file

In Massachusetts, you can file a Small Claims Action in any District Court. The “Small Claims Court” is simply a session or courtroom within a District Court.

Where to Go to File a Small Claims Complaint

In order to file a Small Claims Action, you will need to go directly to the District Court. The District Court you choose to file in can be any one of the following:

  • The District Court near you, in your county or area
  • The District Court near the defendant, in their county or area
  • The District Court near the site of the incident or issue for which you are filing a Small Claims Action.

Upon entering the appropriate District Court, you should then go to the Civil Clerk’s Office and ask for an available civil clerk and/or a court employee that can help you with filing a Small Claims Complaint.  There is a specific form—called a Small Claims Complaint—that needs to be filled out with the necessary information, including the parties and what happened. These forms should be available to you at any Civil Clerk’s office.

What You Need to File

You will need to provide your name and address, the name and address of the defendant you are suing, and a brief description of what happened and why you are suing. The form will also require you to describe or articulate the amount of your damages as a result of the defendant’s actions or conduct.

After completing the form you will pay the appropriate fee.  The amount of the filing fees depends upon the amount in dispute.

  • The filing fee for small claims of $500 and under is $40.
  • The filing fee for claims of $501 to $2000 is $50.
  • The filing fee for claims of $2001 to $5000 is $100.
  • The filing fee for claims of $5001 to $7000 is $150.
  • The filing fee for claims of property damage of more than $7000 arising from an automobile accident is $150.

Preparing For Your Hearing

After completing the form and paying the fee, the clerk will designate a trial date or hearing date. You will be advised on what date and time to come back to the court for a hearing. Depending upon which District Court you file in, you can usually expect a hearing date within 30 to 90 days of your filing. Generally, Small Claims Actions do not require lengthy hearings, translating into less waiting time. The clerk will also be responsible for notifying the defendant of the suit and the trial date.

Remember to bring ALL of your evidence and witnesses with you when you appear for the trial or hearing date. Small Claims Actions rarely if ever require lawyers, and therefore the duty of collecting evidence and witnesses for your case falls to you. Without bringing thorough evidence, it will be difficult to prove your Smalls Claims Action, and you may not receive another chance to receive compensation. Good luck with your case!

If you feel unsure if you have a Small Claims Action, a larger case, or would like to explore your legal options more thoroughly, the attorneys of Mazow | McCullough, PC in Salem, MA can help. We’re experienced, knowledgeable, and able to assist you with your legal issues. Contact us today for a free consultation.

Should I File a Small Claims Complaint?

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There are times when a civil dispute between parties may not require retaining an attorney. Usually this occurs when the amount of damages in dispute is too low to justify hiring the lawyer. However, that does not mean that you have to–or should–walk away from the issue. You may still be able to recover damages and receive some measure of justice for your claim in Small Claims Court.

What is a Small Claim?

In Massachusetts, you can file a Small Claims Action in any District Court. The “Small Claims Court” is simply a session in a District Court. Any suits brought to Small Claims Court are limited or capped at $7,000 in damages. So long as the damages that you are seeking are $7,000 or less, you can file the action in Small Claims Court.

The only exception to the monetary cap of $7,000 in damages is if the damages are due to a motor vehicle collision/automobile accident. If your damages are from an automobile accident then there is no cap on the amount of damages you can seek. For example, if someone hits your $100,000 Mercedes then you can actually sue them for the damages in Small Claims Court.

Again, you can bring an action in Small Claims Court for any action up to $7,000.00, including personal injury, dog bites, property disputes, etc.; however, if your case is from an automobile accident then the cap does not apply.

Filing Fees for Small Claims Complaints

One of the advantages for filing a Small Claims Action instead of a District Court or Superior Court action includes the reduced cost to file in Small Claims Court. While filing a legal claim in any court is never free, Small Claims Court fees are usually lower than other courts or sessions.

  • The filing fee for small claims of $500 and under is $40.
  • The filing fee for claims of $501 to $2000 is $50.
  • The filing fee for claims of $2001 to $5000 is $100.
  • The filing fee for claims of $5001 to $7000 is $150.
  • The filing fee for claims of property damage of more than $7000 arising from an automobile accident is $150.

Another reason to file a case in Small Claims Court is that suits tend to move through the system faster than in other courts. You will probably get a trial date or hearing date much sooner than is typical as Small Claims Actions, with their lower stakes, are not often prolonged affairs. This can be a huge benefit for those concerned that a claim or trial will take up too much of their time or energy.

Weighing Your Options

It is important to exercise caution when selecting which court you choose to file in as there are disadvantages to filing a case in Small Claims Court. Some of those disadvantages include the lack of or limited access to what’s called discovery (exchanging information with the defendant/other side) and also the inability to take depositions of parties or witnesses. This is part of the reason that Small Claims Actions move through the legal system faster than larger claims,  but it can make proving your case much harder.

Please contact  the attorneys at the law offices of Mazow | McCullough, PC with any questions regarding where to file your case. We can help you determine if your claim belongs in Small Claims Court or if it is potentially much larger than that and can help you file in whatever court you decide. Call us today for a free consultation.

Mazow | McCullough Featured in Mass. Lawyers Weekly for Guinness Beer Case

Mazow | McCullough attorneys are currently working on a class action lawsuit against Diageo-Guinness, USA, Inc., and its parent, Diageo North America, Inc. in the U.S. District Court in Boston. The lawsuit alleges that Guinness engaged in deceptive marketing techniques, purporting that their beer heralds from Dublin, Ireland, when in reality, it is brewed in a Canadian production facility.

A feature article in Massachusetts Lawyers Weekly goes into detail about the lawsuit:

Your run-of-the-mill beer drinker might not be fazed to learn Guinness comes from a modern production facility in Canada rather than a historic brewery in Dublin, Ireland. Kieran O’Hara is not one of those beer drinkers. Last month, the Swampscott resident filed a consumer class action [lawsuit].

Brought under G.L.c. 93A, §2, the suit alleges the defendants market Guinness Extra Stout “in a manner which unfairly and deceptively misleads consumers into believing that all of the Extra Stout sold in the United States is brewed, sourced, bottled and imported in/from Dublin, Ireland, when in fact certain Extra Stout sold in the United States is brewed and imported in/from Canada.”

The case appears to have some teeth at first glance. The Guinness logo used on Extra Stout packaging includes the statement: “Traditionally Brewed St. James’s Gate Dublin.” The complaint further alleges that the Guinness website proclaims that “all” Guinness sold in the United Kingdom, Ireland and North America “is brewed in Ireland at the historic St. James’s Gate Brewery in Dublin.”

Yet the fine print says something else.

An exhibit filed with the complaint shows the label on a Guinness bottle with an acknowledgement in small type that the beer is brewed and bottled not in Ireland but in New Brunswick, Canada. “Extra Stout’s labels do not prominently place on their labeling a representation that Extra Stout is manufactured, brewed, bottled and/or imported from Canada with sufficient conspicuousness,” the complaint alleges.

The class action further claims that O’Hara and other consumers paid a “premium price” believing that Extra Stout is brewed and bottled in, and imported from, Dublin.

In addition to compensatory and punitive damages, O’Hara’s suit seeks a disgorgement of profits, under a theory of unjust enrichment, as well as injunctive relief requiring Guinness USA and its parent to correct their marketing practices.

“If the plaintiff’s allegations are true, Guinness should not be charging that premium price,” McCullough says.

While many people may consider this type of lawsuit frivolous with little to gain, it’s important to note that these are the types of legal actions that keep advertisers honest in their marketing. Without attorneys and lawsuits to keep advertisers in check, brands can make any claims about a product that they want.

Mazow | McCullough is excited to see how the case unfolds and what the final verdict will be. Will Guinness be required to relabel their beer or change their marketing tactics in some way to put less emphasis on the notion that their beer is brewed in Ireland? Stay tuned to find out.

“Making A Murderer” Podcast with Robert Mazow and Randy Chapman

There has been a lot of talk on the news and social media lately around the newest Netflix mini-series “Making a Murderer.” The  story of Steven Avery, a Manitowoc County, Wisconsin man, who served 18 years in prison for the sexual assault and attempted murder, before being exonerated in 2003. Recently, local lawyers Robert Mazow and Randy Chapman sat down with The Boston Podcast and provided new takes on this popular story.

 

Identity Theft Delaying Tax Returns

tax papers on a deskWith about a month left until the April 15th deadline, everyone is scrambling to get together every document mailed to them that may seem important and useful when filing their taxes. Taxpayers have already been warned by the IRS that tax returns may be delayed this year due to budget cuts and staff reductions. This more likely than not means fewer customer service representatives to answer questions, which people are sure to have since the budget cuts and staff reductions are not the only factors to blame for delays. The lack of customer service availability, along with increasing identity theft occurrences and confusing new tax requirements under the Affordable Care Act, may also make for an unpleasant tax filing season.

“You’re going to need to be patient,” says Nina Olson, the National Taxpayer Advocate. The budget cuts and staff reduction have left the IRS struggling to stay ahead this tax season. There will definitely be a shortage of representatives to answer questions. Increasing identity theft by criminals who use other people’s social security numbers to file fictitious returns in order to get a refund is on the rise this year. Big companies like JPMorgan Chase and other banks were breached and confidential client information was stolen, which affected roughly 76 million households. TurboTax temporarily halted all state filings earlier this year after several state revenue departments complained to their state attorneys of the high possibility of filing fraud. They shortly resumed filings after stating that they found no evidence that customers’ Turbo Tax credentials had been stolen from their database. This, however, causes a trickle-down effect causing state revenue departments to take a closer and more rigorous look at filings, delaying the process even more.

If your head is spinning with all of these predicted inconveniences that may make filing your tax return a bigger headache this year, you are not alone. Mine is spinning and most of this doesn’t even apply to me. The IRS predicted that they will only be able to answer half of the number of calls they are expecting to get, which soars to the 100 million mark. Just expect it to be sort of like calling the Registry of Motor Vehicles – I’ve been calling them for the past 3 weeks trying to get them to send me the license they keep insisting is arriving to me any minute now, and every time it’s a 30 minute hold. The good news is that unlike last year, there is no government shutdown to add to the long list of potential headaches and delays.

Jury Service is No Joke

court houseA friend of mine was called up for jury service this week. As a joke, he posted a question on Facebook on ways he could get out of jury service. Friends replied with various suggestions such as “shave half your face so the judge thinks you’re crazy,” “pretend you are sick,” and “tell the judge you are pregnant” (my friend is a man). They suggestions ranged from funny to pathetic. But the bottom line is that so many of us think that jury service is a joke and waste of time.

Probably due to my career as a prosecutor and now a trial lawyer, I’ve never been chosen to sit on a jury. While I’m sure I could be impartial and fair in either a criminal or civil trial, I think that attorneys feel I might have some “insider” knowledge or might persuade a jury to a particular verdict.

Since 1994, I’ve had the privilege of trying many, many cases in front of juries. I’ve tried criminal cases and civil cases. Small “fender bender” cases and large wrongful death cases. Cases that have lasted for half a day and ones that have taken weeks.

What I’ve taken away from each of these trials is that no matter what the kind of case, whether the outcome is someone’s liberty or is about compensation for an injury, jurors ultimately take their jobs extremely seriously. Sure, they enter the courtroom wishing that they could be anywhere else but there. They are nervous, or bored, or confused, or angry. But, from the moment that jurors take that solemn oath to be fair and impartial and to render a true verdict, I have rarely seen a juror not take that oath to heart.

Not every case has gone my way. But it is the rare time that the jurors don’t get it “right.”

The next time you get called for jury service, don’t look for the excuse to get out of it. Listen to the judge’s preliminary instructions and the questions from the lawyers. If you think you can be fair and impartial, then let the court know when you are asked.

I’ve never met a juror who didn’t feel satisfied with going through the experience.

Issues Intensify in Medical Security Case

FOR IMMEDIATE RELEASE

UMass Memorial  logoTwo Salem law firms who specialize in representing Massachusetts consumers in class action lawsuits, are collaborating in a Worcester case involving an alleged breach of security by a former employee of the University of Massachusetts Memorial Medical Center.

Attorneys Robert E. Mazow of Mazow & McCullough, PC and John R. Yasi of Yasi & Yasi, PC, are researching all aspects of the wide and complex case which they filed on behalf of an individual who seeks to be representative of a class of persons similarly situated. The class of persons is defined as the roughly 2,400 persons whom, the hospital acknowledges, were sent written notification by the hospital in May of this year that they may have been victims of a security breach.

While the notification letter did reference that the fired employee was under investigation by authorities, further details only came to light this past week when the former employee, Katherine Benitez of Webster, was charged with multiple criminal counts involving allegations of identity fraud, larceny and conspiracy. She has pled not guilty to the charges. She is free on bail, but must wear a GPS monitor, not contact her alleged victims, surrender her passport, report to probation three times a week, and return to court for a pretrial hearing.

Meanwhile, Worcester-area police are seeking her daughter and her daughter’s boyfriend, who reportedly may also be involved in the matter.

Attorneys Mazow and Yasi have been critical of the hospital’s limited response to the breach and assert that the response was a dramatically insufficient remedy under the circumstances of such an obviously serious breach. The victims’ attorneys point out that the hospital itself acknowledges that its former employee may have been inappropriately accessing and gathering patient information going back as far as 12 years. Moreover, the attorneys state that the hospital has refused to provide the victims with details about the dangers of potential medical identity theft which were detailed in a report which the lawyers’ retained privacy expert created for the benefit of their client, as well as the other victims.

Attorney Yasi states:  “On behalf of our client we have gone to great lengths to educate him about what medical identity theft is and more importantly, to provide him the tools which will allow him to determine whether he may already be a victim or conversely, to prevent him from becoming a victim. We provided this information to the hospital’s attorneys as soon as it was prepared by the expert and urged the hospital to provide a copy of the report to all of the victims whom were notified of the breach back in May. Inexplicably, the hospital has refused to provide these persons this information. Moreover, the hospital’s only notification letter did not even use the term “medical identity theft”, let alone educate the victims that the breach may have exposed them to the crime of medical identity theft.  Rather, the notification letter discussed only the possibility of the use of the information for purposes of personal identity theft and offered the victims only one year of free credit monitoring.”

The plaintiff’s attorneys contend that medical identity theft is an enormous problem throughout the country and the world. They assert it is a multibillion-dollar criminal industry wherein stolen medical identity information is used to make and collect on fraudulent insurance claims.

Yasi also states that “the statistics are staggering with respect to the amount of money which is paid out by Medicare and private health insurance companies yearly related to medical identity theft.  Moreover, a victim of medical identity theft can face severe adverse problems from a physical standpoint, not just economic damages. For example, an imposter might illegally obtain expensive prescription medication which may lead to the victim being denied necessary prescription medication. Likewise, imposter information might taint a victim’s medical record with an incorrect diagnosis or blood type, problems which could have disastrous ramifications for a victim as he seeks continuing treatment for certain illnesses.”

Accordingly, the attorneys for the plaintiff will seek to be appointed class counsel as soon as possible in an effort to educate this class of 2,400 persons that they are at a dramatically increased risk of becoming victims of not only personal identity theft, but also medical identity theft.

Yasi states “in addition to educating these persons about the problem, we will, more importantly, provide them the necessary information which will allow them to monitor their medical identity very closely at every medical encounter so as to determine whether they might already be victims, or in an effort to avoid becoming victims.”

Attorneys Mazow and Yasi state that they have requested that the hospital meet with them in an attempt to mediate a resolution to this matter which fully educates and protects the victims of the breach, but that to date the hospital has refused such a meeting.

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