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

This will be the concluding blog in the series of discussions about the recent Massachusetts Appeals Court decision, Fyffe v. MBTA. There are a few more points worth considering.

First, I have discussed the concept of speculation by a medical expert or an attorney in past blogs and the Appeals Court in Fyffe discusses the subject at some length. Specifically, the Court rejected the plaintiff’s attorney attempt to bring up the issue of quadriplegia because there was no record of evidence to support such speculation. There had been no suggestion of this issue in the pretrial documents. At one point in the trial, the plaintiff’s counsel even conceded that quadriplegia would not be an issue.

In the last blog I discussed how the loss of earning capacity is calculated. I mentioned that a medical expert can determine the future loss of earning capacity and then that amount can be reduced to present value. However, an economist or other expert will not be required to testify or present evidence to verify this amount. The judge will instruct the jury accordingly.

The last concept that I will discuss with regard to the Fyffe decision is the idea of a “remittitur.” A remittitur is where the court finds that the amount awarded by the jury was too much and must be reduced. In this case, however, the Court found that the amount awarded by the jury was in the acceptable range of amounts that could have been awarded to the plaintiff for the damages sustained. Nevertheless, the “numerous and repeated violations of the law by plaintiff’s trial counsel” led to the need to order a new trial. Certainly, the cumulative effect weighed heavily on the Appeals Court.

Cases like Fyffe can be unsettling. This is because their reach becomes too vast. I argue that a proper reading of Fyffe is that it just calls for trial practice as it has always been taught. In that sense, it blazes no new ground. I intend to argue with defense counsel strenuously that my presentation will not run afoul of any of the rulings in Fyffe and therefore my clients should not be penalized by this decision. It is often said that “bad cases make for bad law.” Here, the law is not bad and it simply offers a lesson in what to avoid.

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