The phrase "litigious society" is almost always used in a
negative connotation. But litigation that seeks compensation for a
life-changing injury, the effects of which can be lifelong, makes
all the difference to the plaintiffs involved. We recently
interviewed attorney Douglas K. Sheff, the senior partner at Sheff
Law Offices PC. He is vice president of the Massachusetts Bar
Association (MBA), past president of the Massachusetts Academy of
Trial Attorneys (MATA), and a national workplace injury expert.
Contrary to their portrayal in popular entertainment, personal
injury cases are extremely difficult to conduct, Sheff says.
Specifically addressing workplace injury tort cases, he notes
that personal injury law does not allow suits against employers.
Instead, it casts a wide net covering anyone who is hurt due to the
actions or inactions of others. A successful workplace injury tort
case needs three elements: Liability, damages and coverage.
Bringing it to trial also requires proof of fault on the part of
In Massachusetts, some of the most serious workplace injury
cases tend to spring out of construction mishaps and product
defects. While employers who make workers' compensation available
to their employees cannot be sued under personal injury or wrongful
death law, a worker hurt on the job by an entity other than the
employer or a co-worker may bring such a lawsuit. Workers'
compensation claims are limited to medical expenses, replacement of
wages, and to a limited extent, compensation for scarring,
disfigurement and losses of bodily functions attributable to the
workplace injury. This leaves the potential for a seriously injured
worker to never receive adequate compensation for his/her loss,
including pain and suffering and loss of enjoyment of life, Sheff
Construction cases are common workplace injuries. Several
subcontractors may work together at the same time, so there are
often many potential defendants from which to choose, namely, the
general contractor and its many subcontractors. Massachusetts has
strict rules governing general contractors. For example, a
"primary" or general contractor shall not be relieved of overall
responsibility to create a safe place to work under Massachusetts
law. Subcontractors must also ensure that the workplace is safe. If
a subcontractor is liable, the general contractor is not
necessarily also liable, Sheff notes.
To address the complexity of targeting multiple potential
defendants, early and extensive discovery, including several sets
of interrogatories, requests for production of documents, request
for admissions, and any necessary motions to compel is necessary.
These should be followed up by a series of depositions in order to
determine the appropriate parties and responsibilities. Concerted
effort in this matter can target several potential defendants.
In product liability cases, an attorney is often pitted against
a large corporate defendant and must establish sufficient knowledge
of the defendant's processes to make a solid case. Most successful
product liability cases are not manufacturing errors, involving a
limited amount of faulty items, but design defect cases, involving
all items in the category.
The key is to find "reasonable feasible alternatives," Sheff
says. The plaintiff should search all sources for design,
including sources suggested by experts, and the defendant's own
patent portfolio, which might contain an unused patent for a
product that was safer but more expensive to build. Then, there's
the competition. "If I had Westinghouse [as a client in a
hypothetical elevator malfunction case], I'd go to Otis. They've
been studying the competition for years," he says. Sheff has
actually scrapped around in junkyards to find evidence that would
support a finding on faulty design.
The plaintiff's attorney must evaluate the cost of the safety
measure relative to the overall product cost. For example, a $5
guard on a $1,000 machine is feasible, but a $1,000 interlock
system on a $2,000 item may not be. Including a warning on the
machine, which costs pennies, is always feasible.
The goal of a plaintiff's attorney is to find a defect or
defects that render a product "unreasonably dangerous," the
standard in any product liability case. Ultimately a jury will have
to find that the product is indeed unreasonably dangerous in order
for the plaintiff to prevail at trial.
Sometimes a product manufacturer is bankrupt or otherwise
"judgment-proof." In that case, the plaintiff is not necessarily
precluded from pursuing a case. Sometimes sellers and distributors
can be found liable for putting an unreasonably dangerous product
into the stream of commerce. The test is whether the plaintiff used
the subject product in a "reasonably foreseeable manner."
Product liability cases often involve workplace machinery. In
Massachusetts, which has many old mill towns, this machinery is
often outdated. In the event of a serious injury involving a piece
of machinery decades old, a defendant might raise the "state of the
art" defense. If the subject machinery was safe at the time of
manufacture, it may be difficult or impossible for the plaintiff to
Careful research must be conducted in order to determine
precisely when the technology was developed relative to the
product. For example, Sheff cites a case he describes as
"significant" from the 1980s in which he prevailed, involving the
electrocution of a worker on a machine manufactured in the 1940s.
He says he was able to establish that an interlock system, which
would have disconnected the electricity at the time of the
accident, was actually available in the 1930s.
TBI: Proving Future Damages Today
One workplace injury often overlooked by lawyers and doctors
alike is traumatic brain injury (TBI). Sheff, a national expert in
this field, says that one out of every 500 people in America suffer
TBI every year, with 60 percent of cases involving auto accidents.
But only 15 percent of TBI injuries are detectable through MRI or
CAT scans. "These are tough cases," he says.
Newer tests such as FMRI, PET, Tesla MRI, which offers
higher-resolution images than its predecessors, and Quantitative
Electroencephalograph (QEEG), can identify what is known as
"diffuse axonal injury," in which fragile nerve cells have snapped
due to twisting and shearing of the brain in sudden-impact
"These new, yet reliable technologies should be welcomed in our
courtrooms in order to provide a truthful demonstration of a
plaintiff's brain injury," Sheff says.
Loss of Earning Capacity
One of the most important aspects of proving damages in a tort
case is to account for any degeneration which will occur in the
future. "Just picture a horizontal line. Above that line your
plaintiff can work, below it, she can't. Imagine your plaintiff is
just above the line but degenerating," Sheff says. "In a couple of
years she will slip below the line and lose the ability to work at
all. We must get her compensation for a lifetime of lost earnings
"The plaintiff attorney's job is to artfully establish a
likelihood that degeneration will occur, and demonstrate the effect
of same on the plaintiff over the course of her lifetime," he
"A properly litigated PI case can take thousands of hours,
hundreds of thousands of dollars, jury focus groups, and up to a
dozen experts to do correctly. But for those plaintiff attorneys
who constantly see PI plaintiffs getting far less than they need or
deserve, the stakes are worth it to get it right," Sheff
Douglas K. Sheff is the senior partner at
Sheff Law Offices PC. He is vice president of the Massachusetts Bar
Association (MBA), past president of the Massachusetts Academy of
Trial Attorneys (MATA), and a national expert in workplace injury
and traumatic brain injury. He can be reached at (617) 227-7000.
Christina P. O'Neill is custom publications
editor at The Warren Group, publisher of Massachusetts Lawyers