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Superior Ct. to Mandate Itemized Tort Damages

Plaintiffs’ Bar Fears Remand ‘Epidemic’

Published: 1:00 am Mon, December 20, 1999 1:00 am Mon, December 20, 1999By PAUL D. BOYNTON Massachusetts Lawyers Weekly The Superior Court will now require that civil complaints contain itemized tort damages — a change plaintiffs’ lawyers claim will fuel a growing “epidemic” of cases remanded to the District Court.The new civil action cover sheet, scheduled for statewide use beginning Jan. 3, will require plaintiffs — at the risk of dismissal if the information is too sketchy — to itemize all existing medical expenses, lost wages and property damages, and to also estimate anticipated future medical expenses and lost wages.The old form simply requested lawyers to “state, with particularity, money damages which would warrant a reasonable likelihood that recovery would exceed $25,000.” (See forms, page 35)The new form also deletes certain types of cases, such as labor disputes and taxpayer suits, that were filed infrequently, and adds categories of claims filed more regularly, according to court officials. For the full text of the order calling for the new form, see page 30.The Superior Court opted for greater specificity in listing damages to help it determine which cases meet the $25,000 jurisdictional threshold, according to Judge Charles F. Barrett.“We’re trying to get the bar to sharpen its focus on specifically setting forth damages so we can deal with remandable cases,” said Barrett, who chaired the court’s Civil Case Management Time Standards Committee when it recommended last year that the court adopt the modified form.“Plaintiffs often have very vague, unspecified damages and throw out a number relating to nothing,” Barrett explained. “Lawyers are going to have to make their case [in meeting the $25,000 threshold]. It has to be more than the hot air we see so often.”Superior Court Judge Catherine A. White, a member of the time standards committee, said the new form is driven by the court’s desire to expedite case flow, and will give judges “an idea whether we have a lot of small to medium cases, and how many cases are more complex and significant.”But plaintiffs’ lawyers stressed that assessing whether a case belongs in Superior Court requires more than just examining total medical bills and lost wages.“It’s bean-counting run amok,” Douglas K. Sheff, president-elect of The Massachusetts Academy of Trial Lawyers, said of the cover-sheet change.“An injured person’s worth is a whole lot more than just the sum of medical bills and lost wages. Often times they’re just the tip of the iceberg,” maintained Sheff, alluding to the often intangible “pain and suffering” claimed by personal injury claimants.Marc L. Breakstone, a Boston personal injury attorney, claimed “we have an epidemic of remand in Massachusetts.”Breakstone indicated that spelling out special damages is not onerous, “but what I do object to is the remand determination being solely based on the itemization.”He pointed out that a claimant “may have a condition requiring surgery but who elects to forego the surgery and is left with a significant disability. The medicals may be relatively modest, but the damages are substantial. On the civil action cover sheet, however, it may seem like a District Court case.”White admitted that special damages don’t always fully reflect the true value of a personal-injury claim.“We don’t tell juries what pain and suffering is worth. It’s an undefinable amount,” the judge said.“A plaintiff may have a broken leg or arm, which may not seem significant, but as a result may have an extended period of incapacity,” White continued. “Or the claimant may have an injured eye resulting in blindness. Or in a closed head injury case, the treatment is minimal, but the plaintiff has long periods of confusion or disorientation or memory loss indicating a more serious injury.”Sheff said “it’s a mystery” how the court determines to remand or dismiss a case. “I don’t know the rule-of-thumb. I had a case with $24,000 in medicals that was remanded,” he said.And more often than not personal injury cases are being sent to the District Court, Sheff said, observing that “many plaintiffs’ attorneys put down [a description of pain and suffering] in the civil cover sheet but very rarely does a case stay in Superior Court unless the medicals are substantial.”Edward L. Reservitz of Brockton agreed.“They are dismissing cases based on dollar figures rather than the injuries described,” Reservitz said. “You can say a plaintiff was decapitated, but if the medicals are $2,000, chances are the case will still be bounced.”Reservitz recalled a recent case where his client had a fractured arm and about $5,000 in special damages, but the case was dismissed, forcing him to refile the complaint in District Court. This meant having to incur the expense of a new filing fee and service of process, he noted.

Remand Standard

White said judges apply the standard — reasonable likelihood that recovery will exceed $25,000 — in a variety of ways.“I’m not sure we all do the same thing. There’s no definite way. I use a multiple of three [times the total of special damages] or something in that neighborhood [to determine if a claimant will meet the threshold],” White remarked.Superior Court Judge Robert A. Mulligan agreed that judges typically apply a multiple ranging from two-and-a-half to four.Mulligan also observed that “what impresses judges more are hard medical records and fractures over chiropractic or physical therapy bills for soft tissue injuries.”White and Barrett both noted that assistant clerks often act as gatekeepers in reviewing complaints.“Clerks may do an initial run-through, but judges eventually look at them,” White said.Barrett said the procedure varies from judge to judge, “but in busy counties, when you have over 1,000 cases on the plate, you don’t have a lot of time for poking around. You have to deal with them on a rapid basis. You hope the clerks funnel them in precisely.”Breakstone said more uniformity and predictability is necessary, particularly in guiding clerks.“The court should have some guidelines for clerks to follow so then can accurately assess cover sheets,” he said.Mulligan, however, asserted that clerks already “are pretty savvy on what type of cases are ripe for remand.”Barrett insisted that the revised form will assist the court in assessing the value of a claim when it is filed.“We shouldn’t let some simple $10,000 case languish in Superior Court on the hope it may develop into something more,” he maintained. “A lot of lawyers are thoroughly optimistic on what they will score with these cases.”White said that tort lawyers “shouldn’t feel picked on. The old form provided no guidance. You would find out the case was sent to District Court and had no idea why. The new form helps lawyers focus on the elements of damages so they can possibly make the threshold.”Sheff, however, countered that judges should exhibit “some deference to attorneys as officers of the court to bring cases where it should be brought. We see and understand people who are suffering very real losses — loss of enjoyment of life, loss of consortium — that are not necessarily tangible.”

Incomplete Records

Boston trial lawyer Paul F. Leavis said assessing jurisdiction on the basis of the cover sheet can be “unfair and unpredictable” when gathering all relevant documents is problematic, which, he noted, is not uncommon.“When I file suit I do as much research as possible beforehand, but I typically don’t have all the information,” Leavis said. “I’m still gathering records and bills.”Sheff noted the practical difficulty of obtaining records from multiple medical providers, some of whom are out of state.And the problem of incomplete records is exacerbated when a client doesn’t seek legal help until near the end of the three-year statute of limitations, he observed.“That would be completely unfair if a case was dismissed [near or after the expiration of the statute of limitations] if I hadn’t had a chance to collect information from a variety of sources with particularity,” Sheff said.

Revocation

Practitioners indicated that plaintiffs are not without recourse, as lawyers can more fully explain to a judge the full measure of their client’s damages in a motion to revoke an order of remand or dismissal.Success on the motion is enhanced when defense counsel assents to the request, lawyers reported.South Easton defense attorney Jay Lynch, for example, said he always prefers Superior Court.“We want to be in Superior Court, no question about that,” Lynch said, pointing to recent statistics putting Massachusetts near the bottom of a nationwide survey of percentage of successful jury verdicts for plaintiffs. (See “Study: Mass. Near The Bottom In Civil Verdicts,” Dec. 13.)“Superior Courts are remanding way too many cases based on the lack of information,” Lynch said. “If they have that information, they may realize remand is not appropriate.”But even if plaintiffs successfully revoke a remand or dismissal order, they were forced to incur the time and expense of filing and arguing the motion, Breakstone pointed out.“It’s a waste of the court’s time and mine,” he said.And even a motion assented to by the defendant is no guarantee of success, Sheff observed.Lynch agreed.“Certain judges never revoke remand, and in some counties virtually every auto case is remanded,” said Lynch.But Leavis is more optimistic.“The ultimate impact [of the modified form] will be minimal. Cases will be remanded or dismissed. But, with the additional step of a motion to revoke, you’ll usually get your desired result,” he said.