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What Lessons Can Be Learned From the Fyffe Decision? Part 1 of 4

In our video blog we discuss the very recent recent decision by the Massachusetts Appeals Court in Fyffe v. Massachusetts Bay Transportation Authority, 86 Mass. App. Ct. 457 (2014), a case that seems to be viewed by many plaintiffs attorneys as unsettling. I, on the other hand, find that the case merely sets out what must be established to prove a case. To be sure, it also sets out what must not be done.

The Massachusetts Appeals Court set aside a large verdict for Fyffe due to the fact that in their view the plaintiff’s counsel had committed many egregious errors of professional judgment. In support of their findings, the Appeals Court outlined three mistakes that were made by plaintiff’s counsel: 1) the plaintiff arguing facts that were not in evidence, 2) discussing issues of liability despite the parties’ stipulation, and 3) the plaintiff’s attorney arguing that the jury was the conscience of the community and had a duty in this case to safeguard the users of public transportation in the future.

In terms of the first point by the Appeals Court, the plaintiff’s attorney attempted to put into evidence the risk of the plaintiff developing quadriplegia in the future even though the parties had not discussed this before trial in the pre-trial conference. Such a “curveball” is not allowed and was clear error by the attorney, who even agreed that the issue of quadriplegia would not be presented to the jury.

As to the second point, a stipulation was made between the plaintiff and defendant that liability was not in issue. Consequently, the trial court judge sustained many objections raised by the defendant’s attorney when the plaintiff attempted to present evidence regarding safety violations committed by the MBTA. That was viewed as “gilding the lilly”, my words to suggest that the plaintiff’s counsel was trying to show gross negligence where there was a stipulation of negligence.

The third factor was due to the introduction of extraneous considerations by the plaintiff’s counsel. Such comments involved the focus on media coverage, arguments on jurors serving as the conscience of the community and the statement by the plaintiff’s lawyer that each juror would have to justify his/her position to the other jurors. The court took offense to that. No doubt, the lawyer would have been better off suggesting to the jury that their collective wisdom is deemed to be the standard for what the community expects.

In summation, I am not concerned with the decision in Fyffe. I believe that the Appeals Court has added no new constraints to what an attorney for the injured can argue.

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