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Massachusetts federal and state courts have become a hub of mass tort actions. Mass tort actions are very different from typical North Shore, Lynnfield, Lynn and Saugus torts, accidents and injury law. Mass torts require massive resources and involve high-stakes but what exactly is a mass tort? Many people understand that a tort is a wrongful act that causes harm or injury to a person and exposes the wrongdoer to civil liability. Typically, tort actions involve one plaintiff and one defendant. For example, imagine that you are on your way home from work on Route 128 and the traffic comes to a sudden grinding halt. You come to a complete stop and the car following you slams into the back of your car. This is a classic tort action involving a wrongful act, you as the single plaintiff and the other driver as the defendant. A mass tort is different because where it also involves a single wrongful act; the wrongful act causes harm or injury to numerous victims.

commerce-acts-books-477966-mA majority of the mass tort actions in the Commonwealth are centralized in the Federal District Court District of Massachusetts; however some prominent mass torts are in the state civil courts. Just one mass tort action can involve numerous cases. For example, over 3,000 claims related to a mass tort action involving the dialysis products GranuFlo and NaturaLyte manufactured by Fresenius were filed in the Middlesex County Superior Court in Woburn. See In re: Consolidated Fresenius Cases, CV2013-03400. A settlement for the Fresenius cases in the amount of $250 million was reached earlier this year.

While many mass tort actions involve injuries caused by defective consumer products, specifically pharmaceutical drugs or medical devices, mass torts can also arise from large scale disasters (such as an oil spill) or toxic torts (such as contaminated groundwater). Mass tort actions allow a large number of plaintiffs to sue a common defendant in a consolidated action if their cases arise from a common cause.

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It has been a red-hot residential real estate market all over Massachusetts. Homes in good locations that are updated and priced fairly are going under contract quickly. The weather may be turning colder as we head into 2017 but the sale prices of good housing throughout the North Shore, including Lynnfield, Saugus, Danvers, Lynn and Wakefield have stayed firm.  As New Englanders know, after a snow-filled winter, a warm spring is always welcome.  Traditionally the housing market heats up once the snow begins to melt. However, with the small inventory of available homes today, potential buyers may wish to keep close watch on new listings during the winter too. If 2017 is the year you will buy your house, be mindful that there are many complications involved with purchasing a home, from start to closing. An experienced and knowledgeable real estate attorney to represent your interests only, throughout the process, can be valuable. Actually, is a lawyer required for closing?

commerce-acts-books-477966-mMassachusetts is one of the few states in the country that is considered an “attorney state” for residential real estate transactions. That means that home buyers and sellers in Massachusetts typically have an attorney represent them (unlike other states where most matters are handled by a real estate agent and a title company). An attorney’s involvement is required by G.L. c. 221, s. 46A, which prohibits the unauthorized practice of law by non-lawyers.

The MA Real Estate bar Association (REBA) takes the position that real estate closings conducted by non-attorneys, often called “witness-only closings” or “notary closings”, are not in the best interest of the consumer or buyer.  “Decisions made by home buyers and other mortgage borrowers are particularly susceptible of improper influence, and even predatory behavior, by individuals who are unqualified to give legal advice.” REBA strongly recommends that the Buyer and Seller each have their own attorney in addition to the attorney conducting the closing, to prevent an issue of conflict and to assure that each side is adequately represented.

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Tax planning is an important component of an overall estate plan. Depending on the type and the value of assets owned, the services of an attorney and a tax specialist may be appropriate.  Throughout the Northshore of Massachusetts, including Saugus, Danvers, Wakefield and Lynnfield, it may save significant money and gifts for heirs if one works with an experienced estate planning lawyer. Any number of life events may provide a good time to trigger setting up an appointment to review your estate and discuss options – marriage, divorce, an addition to the family, health issues or simply natural aging.

commerce-acts-books-477966-mOne example of a tax planning issue to consider is the taxable basis at death of assets acquired during one’s lifetime, such as stocks, a home and real estate. A properly prepared estate plan may enable the heirs to use a legal step-up in basis so that the starting point for valuation of an asset will be the value at the date of death – instead of the value at acquisition or some other starting value.

What is a step-up in basis and how does it work?

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The North Shore has a number of outstanding facilities to assist in the care and education of special needs minors. For example, the Northshore Education Consortium, with facilities in Beverly and Peabody, is one of the largest provider of special education programs for children with emotional, behavioral or developmental disabilities in Massachusetts. See https://www.nsedu.org/

commerce-acts-books-477966-mFor many parents, their top priority when planning for the future is to ensure that their children will be cared and provided for. The issues may be complicated when there is a child with disabilities as part of the family. Planning for children with disabilities presents unique challenges and considerations. The two main concerns presented by gifting or leaving funds directly to a disabled child are: first, a child with disabilities may be unable to appropriately manage funds themselves; and second, such a gift or inheritance may cause the child to lose important government benefits. A properly drafted Special Needs Trust, also known as a Supplemental Needs Trust, can address these issues and ensure that a disabled child is cared for and financially protected.

Perhaps the main benefit of a Special Needs Trust is that assets held by the trust for the disabled individual are not considered “countable assets” for the purposes of means-tested government benefits. Means-tested government benefits include Supplemental Security Income (SSI), Medicaid (also known as MassHealth in the Commonwealth), and certain housing assistance programs. For example, in order to receive SSI an individual must not have countable assets worth more than a total of $2,000.00.[1]

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And so today it starts – whether you are a parent that starts planning for the holidays before you put a pumpkin out or you wait until the last minute to run to the Northshore Mall in Peabody or Square One in Saugus, like it or not – the holidays are coming.  One sure sign that the holidays are around the corner is the local news station’s annual report on the worst toys for the year.  Each year, the non-profit watch-dog group from Massachusetts, World Against Toys Causing Harm Inc. (or W.A.T.C.H.) releases its “10 Worst Toys of 2016”.  While some think the edict from W.A.T.C.H. can be alarmist, parents and anyone in Massachusetts looking for toys to buy children should be aware of the list.

commerce-acts-books-477966-mAccording to W.A.T.C.H.’s website http://toysafety.org/, its primary goals are to advocate child safety and correct abuses in the manufacturing and marketing of children’s toys and products.   It seeks to raise awareness about hazards prevalent in the marketplace, creates educational programs, and allows childcare givers and children to make more informed decisions with regard to toys and recreational products.

There is no substitute for parental guidance and common sense, but it is helpful to be mindful of safety concerns that W.A.T.C.H. has with certain toys.  This year, a sampling of those products that made the list are: an inflatable suit that children wear while crashing into each other; hammer inspired by weapons in the movie “Warcraft”; “slimeball launcher” is similar to a slingshot, and is sold with bright green “slimeballs” as ammunition, which can be fired “over 30 feet!” Projectiles launched with such force have the potential to cause serious eye injuries and rank among the 10 most hazardous toys on an annual list released on Tuesday by U.S. child safety advocates.  A puppy with a string pull where the string is 31 inches long is suggested for children “2+”.   The package also contains no warnings.  These are just some of the many toys on the list to be mindful of.

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November 6 marked the end of Daylight Saving Time.  We turned the clocks back one hour.  That means it is lighter when we wake up and head out for the morning commute, but it is dark outside when most of us head home from work in the evening.  The loss of one hour of afternoon sunlight increases the risk of traffic and pedestrian accidents in Lynnfield, Lynn, Danvers and Middleton and throughout the North Shore.

commerce-acts-books-477966-m“The time change officially [took] place at 2 a.m., but you don’t have to spring out of bed and move the big hand on your clock back an hour. The change is automatic for most smartphones, computers, tablets and other digital devices.

If you’re still using an analog alarm clock, you’ll probably want to move it back before you go to sleep on Saturday or when you wake up the next morning.

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Do you know what happens if you are driving around Lynn, Lynnfield, Peabody, or  other North Shore community in Massachusetts and are injured by a federal government employee or vehicle owned by the federal government?  What if you are in a federal government building in Massachusetts and are injured?  If you are injured by the negligence of an employee of the federal government in Massachusetts, you or your attorney will need to determine whether or not your claim is subject to the Federal Tort Claims Act (“FTCA”).  If so, compliance with FTCA and attention to detail are musts, otherwise you could jeopardize your right to recovery.

commerce-acts-books-477966-mWhat is the FTCA?  While the statutory construction of the FTCA is somewhat complicated for a lay person, the purpose is pretty straightforward – to provide a limited window of recovery against the United States for the wrongdoing of one of its employees.  It starts with the concept of “sovereign immunity”.  This common law doctrine essentially shielded government officials and employees from personal liability in tort for carrying out governmental duties.  So, although private employers could be held liable for the wrongs of their employees, the federal government could not be held liable for the wrongs of its employees.  In 1946, the FTCA was enacted to provide a limited waiver of the federal government’s sovereign immunity when its employees are negligent within the scope of their employment.  28 U.S.C. 2671-2680.  Under the FTCA, the government can be sued ‘under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’ 28 U.S.C. S 1346(b).  The FTCA includes a number of exceptions to its application, so it must be determined whether or not your claim falls within the FTCA’s window of allowable claims.

What is Presentment under the FTCA?  Before an action under the FTCA can be filed with a court, the claimant must make proper “Presentment”.   Presentment is written notice to the appropriate government agency. 28 U.S.C. § 2675(a).   Typically this is done by government’s Standard Form 95 (“SF-95”) linked here https://www.justice.gov/sites/default/files/civil/legacy/2011/11/01/SF-95.pdf  although the form is not required if another writing contains the required elements of notice to the agency. The written claim must provide the agency sufficient notice so that it can conduct a proper investigation to determine liability, conduct settlement negotiations and assign value to the claim.  State Farm v. United States, 2004 WL 1638175 (E.D.N.Y.); McNeil v. United States, 508 U.S. 106, 112 (1993).   Presentment must be made within two years after the claim arises and suit must be filed within six months after a claim is made or denied, whichever is first.

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Halloween has come and gone for 2016 in Lynnfield, Saugus and throughout the North Shore.  October 31st is an exciting day for children across the U.S. to dress up and trick or treat.  There is no better place for goblins and witches to roam the streets than nearby Salem, the home of the Witch Trials in the 17th Century. However, all goblins and witches must beware of the dangers of traffic accidents on this popular night.

commerce-acts-books-477966-mAccording to The Salem News a Beverly man was arrested in a hit-and-run accident that seriously injured two children and one adult in Salem.  He was charged with operating under the influence of alcohol, failing to yield to pedestrians in a crosswalk and leaving the scene of an accident with personal injury.  Halloween is a dangerous night throughout the North Shore due to impaired drivers. In 2015, over half (52%) of all highway fatalities across the nation on Halloween night involved a driver or a motorcycle rider with a Blood Alcohol Content of .08 or higher, according to Traffic Safety Marketing.

There’s nothing scarier on Halloween, or really on any night, than a drunk or impaired driver.

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Under the current law in Massachusetts, marijuana may be legally prescribed by a doctor to the patient. There are more than 12,000 people in the Commonwealth who are allowed, under State law, to purchase the drug. Yet it remains a defined controlled substance, illegal under federal Law.  To seek State approval to acquire marijuana for medical purposes, one must meet with a MA State certified doctor who has been approved for prescribing the drug. There are about 108 approved doctors statewide. The nearest marijuana distribution center serving the North Shore, including the cities and towns of Lynn, Lynnfield, Danvers and Peabody, is in Salem and there is an application pending for a second dispensary in Saugus.

commerce-acts-books-477966-mTo get started you select a clinic or approved Doctor. You must have a “debilitating condition”, for example anxiety or chronic pain, and the certifying Doctor must agree that you will benefit from medical cannabis. You will then get a PIN and a logon and can register in the state’s gateway.  Next is a 15 step process through the gateway to formally register. Once approved you will get a card in the mail and can then go to the dispensary for your medication. https://www.boston.com/culture/health/2015/09/23/how-to-get-medical-marijuana-in-massachusetts

This November a ballot question seeks to expand marijuana use to legalize it for recreation purposes.   The Massachusetts Marijuana Legalization Initiative, also known as Question 4 is on the November 8, 2016 ballot in Massachusetts as an indirect initiated state statute.

  “yes” vote supports this proposal to legalize marijuana, but regulate it similar to alcoholic beverages.
“no” vote opposes this proposal to legalize recreational marijuana, keeping only medical marijuana legal.[1]

If ballot question 4 is passed and then becomes law, individuals over twenty one years old will be allowed to grow, possess and use marijuana (subject to Federal law).  https://ballotpedia.org/Massachusetts_Marijuana_Legalization,_Question_4_(2016)

According to experts, this may have a significant effect on automobile safety, accidents and personal injuries. “Marijuana use in driving is a growing, contributing factor to fatal crashes,” said Jake Nelson, the director of traffic safety advocacy and research at the American Automobile Association (AAA) said. “It’s a highway safety problem that we should all be concerned about.” http://www.livescience.com/54693-high-drivers-double-after-marijuana-legalization.html

Studies have shown that in those states where marijuana has become legal, the number of drivers who had traces of marijuana in their blood and were involved in fatal accidents, has doubled. More research needs to be done to determine if there is a safe level of THC in the blood stream, what will be defined as impaired driving, and how to accurately and fairly test the level to protect society, yet respect privacy and prevent unwarranted searches.

Blood level of alcohol is an accurate measure of impairment and with properly calibrated equipment or a blood test, can be reliably measured. The state is able to define limits for acceptable levels of blood alcohol and when one is impaired. Unfortunately the same is not true for defining or measuring impairment with marijuana (THC).

Alcohol and THC are different drugs, each of which react in the body differently. To try to use breath test or blood test similar to the one that measures blood alcohol content will not yield accurate information as to driving impaired, or not, under THC. Currently, in states that have legalized marijuana, authorities are using a combination of field sobriety tests, blood tests and evidence from drug impairment experts to identify and define drivers who are impaired by THC. A growing body of thought is to reverse the burden once THC is found in the blood system. It would require the driver accused of operating impaired, to prove that he was not. This would be a dramatic shift in burden and raise potential issues of constitutionality.

The outcome of ballot question 4 may have a significant impact on safe driving and auto accidents and injuries in the years to come.

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Upon the death of a family member, a question often arises as to who is entitled to receive the assets of the deceased. Whether there is a Will or not, family and friends may squabble over the property, and descent and distribution of estate gifts may be the subject of disagreement. On the North Shore of Massachusetts there are probate courts in Salem and Lawrence for Essex County, Cambridge for Middlesex County and Boston for Suffolk County.  Probate of the estate and any disagreement over the estate will likely be handled in the Probate Court for the county where the deceased resided at date of death.

commerce-acts-books-477966-mThe deceased may have expressed his or her wishes for the disposition of property by making a Will and specifying who gets what. The assets may be divided up depending on many factors, including value, type of property (real estate, bank accounts, stocks, cars, personal property or intangible property), or perhaps on the number of heirs, closeness of family, financial need of family members, or just the whim of the decedent.  If no Will is found then the property is divided according to law or state statute, and will generally follow lines of consanguinity (family bloodlines or relatives).

With or without a Will, surviving family, friends and institutions such as charities or religious groups, may seek to claim an interest in the assets of the deceased. Disputes as to where the property and assets go may arise from promises made during the lifetime of the deceased, expectations of presumed recipients of the gift(s), the mental capacity of the deceased or possibly from alleged failure of the fiduciary of the estate to properly carry out the handling of the estate or assets.