Morrison Mahoney Partners Joseph Desmond and Joseph Fogarty recently won a defense award for their nursing home client after a two-day arbitration.
Plaintiff, who passed away during the course of litigation, was a 78-year-old visitor at a nursing home who fell and fractured her right hip after her walker became stuck in a sidewalk depression .Plaintiff alleged 6 figures in medical bills and five figures in lost earning capacity, as well as significant non-economic damages due to alleged disability until her death.
Prior to the arbitration, the defense won a motion in limine pursuant to Timmons v. MBTA, 412 Mass. 646 (1992) limiting the plaintiff’s lost earning capacity to about six months on the grounds that the plaintiff had not disclosed a damages expert.
Plaintiff claimed that the depression near the sidewalk violated the requirements for an accessible route under 521 CMR, the Massachusetts Architectural Access Board regulations. Plaintiff disclosed a building code/architect expert to support this theory. The defense aggressively cross-examined the plaintiff’s expert during his deposition and at arbitration, during which the expert admitted that there is no section of any applicable regulatory code that applied to the area of the fall, which was off the sidewalk and not part of the accessible route. After his deposition and before the arbitration, the plaintiff’s expert amended his report to remove errors that we exposed during his deposition, which further exposed his lack of reliability.
Immediately after the incident, the plaintiff’s son went to the scene of the incident and took photographs, and the plaintiff, while still at the hospital, then circled an area of the sidewalk on one of the photographs, which turned out not to be the area where she fell. Plaintiff admitted during her deposition that she didn’t actually know where she fell, despite having previously testified under oath that she fell in the area indicated by her circle. Plaintiff also admitted she had walked up and down the same sidewalk at least 100 times before the fall, without incident and without making any complaints.
Cross-examination of the plaintiff’s adult son and daughter showed that they had limited knowledge of their mother’s day-to-day life prior to the incident, and they conceded that their mother had an extensive medical history, undercutting the plaintiff’s claim that she sustained permanent disability due to the right hip fracture.
The arbitrator issued a defense award finding no liability on the part of the defendant nursing home, finding that the area of the fall was not part of the walkway and not within the scope of 521 CMR.
