Massachusetts’ Largest Medical Malpractice Verdict of 2009 Was Turned Down By Massachusetts Lawyers

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1150306_building_reflection.jpgThis week’s Massachusetts Lawyers’ Weekly newspaper features a story about Massachusetts’ biggest medical malpractice verdict of 2009: a $15 million dollar verdict awarded to the parents of a three year old boy who died from complications from a heart surgery.
As sad as this tragedy is, someone might see it as just another large medical malpractice verdict and not a very remarkable story. After all, the case did not establish any new precedent in the area of medical malpractice or garner any media attention outside of trade periodicals.
The Lawyers’ Weekly story, however, shows that the case is noteworthy in at least two respects.
First, the parents of the boy apparently could not find a medical malpractice lawyer in Boston or Massachusetts. Four different law practices in Boston rejected the case. Some of the Massachusetts medical malpractice attorneys that the parents contacted begged off the case because the doctors involved had been expert witnesses in their other cases. Other medical malpractice attorneys in Massachusetts turned down the case because, in the words of Lawyers’ Weekly, it was “seen as a loser” by the medical malpractice community. Fortunately, the father of the child had a cousin in California who was a medical malpractice lawyer and that California lawyer, James Fox, agreed to take the case.
Another noteworthy part of this case is how some diligence and unconventional tactics turned a “loser” of a case into the biggest Massachusetts medical malpractice verdict of 2009. Fox took forty-four depositions in the case, about four times the average in Massachusetts medical malpractice cases.
This sweat-of-the-brow approach did not uncover any smoking guns about what the doctors did in the operating room but it did turn up evidence that certain Intensive Care Unit notes had been falsified and that certain other documents had vanished.
The discovery that documents had been tampered with enabled Fox to, in his words, try the case as an “obstruction of justice”-type case instead of a “battle of the experts” medical malpractice case, as is common in Massachusetts.
The tale of this case should be an unsettling one for Massachusetts medical malpractice lawyers. Massachusetts medical malpractice lawyers need to examine their own practices and see whether they’ve become too complacent in the tactics they use to try cases and whether they’ve become too ensnared in conflicts of interests with the doctors they use as expert witnesses.
Med-mal win suggests lawyers rethink strategy: Jury awards $15M in case seen as loser, masslawyersweekly.com, January 18, 2010

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South Shore Mother Whose Daughter Was Overserved Alcohol Files Wrongful Death Lawsuit: Part II

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In yesterday’s blog post, we discussed why the estate of Taylor Meyer might be able to prevail in its wrongful death claim, or at least why the case might be able to reach a favorable settlement.
In today’s post we will discuss some of the challenges that the Meyer estate will face under Massachusetts law. The first challenge was alluded to by Kathi Jean Taylor who said at the press conference: “No one forced [my daughter Taylor] to drink alcohol that night,” and that Taylor “absolutely” bears some responsibility for her accident.
These statements raise another possible issue here: comparative negligence. Under the Masachusetts comparative negligence statute, if the party that is injured bears more than 50 percent responsibility for her injuries, she is not allowed to recover anything.
Comparative negligence will definitely be an argument that the defense lawyers use in this case. But Massachusetts courts have been reluctant to fault minors for their consumption of alcohol. In the important case of Tobin v. Norwood Country Club, 422 Mass. 126 (1996), the Massachusetts Supreme Judicial Court, emphasized that minors “are thought to be peculiarly susceptible to the effects of alcohol and less able to make decisions about what amount of alcohol they may safely consume in various situations.” (The court in that case went on to conclude that a driver who had been injured by a minor who consumed alcohol at a country club could sue the country club for his injuries.)
In light of the fact that Massachusetts courts have been reluctant to heap blame on minors in liquor liability cases, comparative negligence might not turn out to be such a big issue in the Meyer case. A judge might refuse to instruct a jury on comparative negligence in light of the forgiving tone of some of the case law.
A much more effective defense in this case – at least for the homeowner defendants – will be a lack of causation defense. In any Massachusetts case for negligence, the plaintiff must prove not only that the defendant was negligent, but that the defendant’s negligent actions caused her injuries.
So, for example, if a drunk driver is careening down the street at 100 mph per hour but brakes to a stop before coming into contact with you, his actions are negligent but you will not have any claim against him (unless you suffer very serious emotional distress) because his negligence did not cause your injuries.
Consequently, the adult party hosts in this care are likely to get a lot of mileage out of the legal argument that their actions, even if negligent, did not cause Taylor’s death. The adult defendants in this case will likely argue that Taylor’s death was attributable not to her consumption of alcohol but to the intervening cause of the teenagers who (apparently) purposefully misdirected Taylor into the swampland as some sort of joke.
They will likely argue that the actions of the teens who allegedly directed Taylor into the swampland were not foreseeable and that therefore they should not be held liable.
Who will prevail? We will see when this case reaches its ultimate conclusion – whether that be a pretrial settlement, a jury verdict, or an appeals court decision.
Hopefully, whatever the resolution in this case, it will discourage irresponsible drinking, incentivize parents to better supervise their children and reduce tragic deaths like Taylor’s.
Mother sues party mates of dead teen, boston.com, January 14, 2010
Mother files lawsuit after daughter’s drowning death at party, bostonherald.com, January 13, 2010

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South Shore Mother Whose Daughter Was Overserved Alcohol Files Wrongful Death Lawsuit: Part I

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A Plainville mother, whose daughter’s alcohol-related death made headlines throughout Massachusetts in 2008, announced, at a press conference held on Thursday, that she and her lawyer had filed a wrongful death lawsuit in Norfolk Superior Court against several people who provided the teenage girl with alcohol on the night of the girl’s death. The lawsuit raises a number of legal questions pertaining to liquor liability that have not been settled by Massachusetts courts.
According to news reports of the lawsuit, Taylor Meyer, a seventeen year old girl, drowned in a Norfolk, MA swamp after drinking in several homes, including a home where a mother allegedly made alcohol available to the teens. Eventually Taylor wound up at a bonfire party, where she asked several other teens how to get from the remote location where she was in the woods back to her home. The teenagers apparently knowingly and cruelly directed the Taylor into the swampland surrounding the clearing. An autopsy of Taylor revealed a high blood alcohol level.
Taylor’s mother, Kathi Jean Meyer, noted at Thursday’s press conference that she did not expect Taylor’s estate to recover a large amount of money out of the lawsuit and that the lawsuit was a matter of principle that would hopefully help raise awareness of the dangers of alcohol. Kathi Jean may be correct that the wrongful death lawsuit she filed faces an uphill climb. However, there is also reason to believe that this case might end in a large settlement. The strengths of the Meyer case will be the subject of today’s blog post.
Liquor liability in Massachusetts can basically be divided into two categories: dram shop liability and social host liability. Dram shop liability is the kind of liability that attaches to commercial establishments, such as bars and restaurants, that serve alcohol. Social host liability is the kind of liability that attaches to people who serve alcohol at private parties. (The lines here can be kind of fuzzy – for example, a corporate picnic might be a setting where the principles of dram shop liability apply). The Meyer case primarily raises issues of social host liability.
Massachusetts law in the area of social host liability is surprisingly unsettled and hostile to plaintiffs. Massachusetts courts have consistently ruled that “social hosts” are not liable if the person drinking the alcohol injures him or herself, even if the person who consumed the alcohol is an adult who is below legal drinking age. Hamilton v. Ganias, 417 Mass. 666 (1994); Sampson v. MacDougall, 60 Mass. App. Ct. 394 (2004). The Meyer case presents a set of facts that Massachusetts courts have not yet pronounced upon: whether adult social hosts are liable for the injuries of minor guests to whom they serve alcohol. Since Taylor Meyer was seventeen at the time of her death (a minor), the Massachusetts precedents holding that social hosts are not liable for injuries to their adult, but underaged guests, would not apply.
(A couple of side notes: while Massachusetts courts have held that social hosts are not liable for injuries to their guests caused by alcohol that they serve their guests, the same rules do not apply to injured third parties. So while a social host might not be liable to their guest for their guest’s injuries, if the guest gets behind the wheel and injures a third party, the host may be liable to that third party for that third party’s injuries.)
Since Massachusetts courts have not ruled on whether a party host may be held liable for injuries to a minor guest resulting from serving that minor guest alcohol, any adult hosts who served Meyer alcohol might have an incentive to settle early on before the court creates a new legal rule clearly defining their responsibility. In other words, even if their legal liability is not clearly established, the adult party hosts might want to pay out before the court makes rulings that might establish their liability and make the plaintiff estate demand more money.
Most likely the adult defendants in this case have assets, like homes and retirement savings, that could all be lost if a judgment were entered against them. Meyer’s lawsuit against the defendants is a wrongful death action. The Massachusetts wrongful death statute, Massachusetts General Laws Chapter 229 Section 2, entitles plaintiffs to recover the net lifetime earnings of their deceased family member. In a case involving the death of a seventeen year old girl, the net lifetime earnings would, by any conservative estimate, run into the millions of dollars. In addition, the Massachusetts wrongful death statute allows for plaintiffs to recover punitive damages (punitive damages are generally not available under Massachusetts law). These punitive damages could multiply a multi-million dollar judgment based on lifetime income and lost companionship by a factor of ten or more without a danger of the verdict being struck down on appeal.
Since a judgment of that size would prove ruinous to all but the wealthiest defendants, the defendant adults in this case might have an incentive to settle even if there are questions about their legal liability.
Even if a plaintiff’s attorney had doubts about recovering a judgment of that size from the defendants’ personal assets, a plaintiff’s attorney might still pursue the case because of the possibility of recovering from homeowner’s insurance policies. This is another area where Massachusetts law is unsettled. Massachusetts courts have never ruled on whether a typical homeowner’s insurance policy covers non-automobile-related injuries arising from a party where an underaged teen was served alcohol. However, in one such case, a Massachusetts court ruled that the insurance company had at least a “duty to defend” the homeowner parents – that is the court required the homeowner’s insurance policy to pay for lawyers to defend the family. Worcester Mutual Insurnace Co. v. Marnell, 398 Mass. 240 (1986).
To sum up today’s post, the unsettled questions surrounding social host liability under these circumstances, the potential for astronomical damages and the potential recovery from insurance companies are all legal weapons that Taylor Meyer’s estate can leverage to (ideally) recover a large settlement.
What Kathi Jean Meyer is doing in this case is a public service. This case has the potential to change Massachusetts law in the area of social host liability. If Meyer succeeds in making law of social host liability stricter in Massachusetts, she will likely help reduce the number of senseless alcohol-related deaths in Massachusetts.
Many mothers whose children’s deaths have been caused by alcohol, such as the mothers involved with Mothers Against Drunk Driving, have focused on criminal sanctions directed at the intoxicated person. And, by focusing on criminal law, they have succeeded in reducing alcohol-related deaths.
Perhaps now however such activists should concentrate on the civil law as an avenue for reducing alcohol-related tragedies such as Taylor Meyer’s death. Strengthening and expanding social host liability stands a good chance of reducing alcohol-related accidents because social hosts often are sober while their guests are not. The possibility of a sober social host putting the brakes on the actions of an inebriated guest would be a welcome sight in Massachusetts.
Tomorrow, in Part II of this blog post, we will discuss some of the legal challenges that the Meyer case will face.
Mother sues party mates of dead teen, boston.com, January 14, 2010
Mother files lawsuit after daughter’s drowning death at party, bostonherald.com, January 13, 2010

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ADA Amendments Act Provides Employees with Greater Protection

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Under the Americans with Disabilities Act (ADA), employees who are “substantially limited” in a “major life activity” are considered disabled and entitled to reasonable accommodations in the workplace. Handicapped employees experienced a welcome change with the ADA Amendments Act (ADAAA), which became effective on January 1, 2009.

The Americans with Disabilities Act (ADA) went into effective in 1992 and, since that time, has faced numerous criticisms. Namely, the strict standards under the ADA created scenarios in which employees were either not sufficiently disabled to state a viable claim or too disabled to be deemed qualified for the position in question.

The ADA Amendments help to minimize these concerns and, in doing so, essentially overturn certain Supreme Court precedents that made it difficult for employees to show that they suffered a substantial limitation in a major life activity. In Sutton v. U.S. Air Lines, 527 U.S. 471 (1999), for instance, the Supreme Court held that “the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment ….” The Supreme Court reiterated this principle in Murphy v. UPS, 527 U.S. 516 (1999) and Alberstons, Inc. v. Kirkinburg, 527 U.S. 555 (1999), which were both decided the same day as Sutton. Likewise, in Toyota v. Williams, 534 U.S. 184 (2002), the Supreme Court stated that a substantial limitation in a major life activity must be “interpreted strictly to create a demanding standard for qualifying as disabled ….”

The following is an overview of some of the key changes brought by the ADAAA:

1. Broadened Definition of Disability

Since the ADA was enacted, numerous federal courts found several severe medical conditions – including epilepsy, diabetes, multiple sclerosis, intellectual disabilities, major depression, and bipolar disorder – to not meet the ADA’s definition of “disability.” The purpose of the ADAAA makes explicit that its purpose is “to reinstate a broad scope of protection” by expanding the definition of “disability,” which immediately reverses more than one decade of conservative federal court decisions. The ADAAA also makes clear that a medical condition that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active.

2. Broadened Definition of Major Life Activity

The ADA was silent as to what constituted a “major life activity.” The ADAAA now provides a non-exhaustive list of examples of major life activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. The ADAAA also makes clear that major life activities include major bodily functions related to the immune system, cell growth, as well as digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, and reproductive functions. As a result, serious medical conditions such as cancer (which affects normal cell growth) and diabetes (which affects the endocrine system) should clearly be considered disabilities under the ADAAA.

3. The Effect of Mitigating Measures

Contrary to the trilogy in Sutton, Murphy, and Kirkinburg, the ADAAA requires that mitigating measures be ignored in evaluating whether an impairment substantially limits a major life activity. As such, a mitigating measure can longer be used against employees.

4. “Regarded As” Disabled Standard Revised

The ADA has always offered protection for those employees whom an employer wrongly “regarded” as being disabled. Federal courts, however, required ADA plaintiffs to demonstrate that the employer regarded them as being substantially limited in a major life activity in order to prevail. The ADAAA dispenses with the holding in Sutton:

Standing alone, the allegation that respondent has a vision requirement in place does not establish a claim that respondent regards petitioners as substantially limited in the major life activity of working. … When the major life activity under consideration is that of working, the statutory phrase “substantially limits” requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.

Contrary to Sutton, under the ADAAA, an employee satisfies the “regarded as” prong if she demonstrates discrimination based on “an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

With these changes, federal law is catching up to the Massachusetts Fair Employment Practices Act. In 2001, for instance, the Supreme Judicial Court of Massachusetts decided Dahill v. Police Department of Boston, in which the court refused to follow the Supreme Court’s reasoning in Sutton v. U.S. Air Lines and ruled that mitigating measures or corrective devices should not be considered when determining whether an employee is handicapped under M.G.L. c. 151B(1)(17).

EEOC Files Lawsuit Against Discrimination Based on Credit Reports and Criminal Records

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If your criminal record or credit history has resulted in your not getting a job, you may have been the victim of unlawful discrimination.

When people think of workplace discrimination they tend to think of instances of intentional discrimination – for example being passed over for promotion because your boss does not like your ethnic background or being fired because of your disability. This type of intentional discrimination is known as disparate treatment discrimination.

Another, less frequently litigated, form of discrimination is known as disparate impact discrimination (some people also call it “adverse impact discrimination”). Disparate impact discrimination involves a facially neutral employment practice that has a disparate impact on different groups. So, for example, if an employer has a policy that its employees be able to lift at least fifty pounds, that policy is nondiscriminatory on its face but may have an adverse effect if fewer female than male employees are able to lift fifty pounds.

Once a litigant has demonstrated that a nondiscriminatory employment policy has a disparate impact on different groups, an employer has to show that its policy is job-related (e.g., in this particular part of the construction industry being able to lift 50 pounds is essential for most tasks). However even if an employer succeeds in showing that its policy is job-related, the policy is vulnerable if less discriminatory alternatives would also work.

Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Supreme Court case that first held disparate impact discrimination to be illegal provides a good illustration of disparate impact litigation. In Griggs, a power company used some (supposed) intelligence tests to determine eligibility for promotion. These tests turned out to have a racial bias to them that resulted in white employees having, on average, higher scores.

Because of the disparity in these test scores and because Duke Power could not show that the tests were job-related (e.g., they could not show any correlation between scores on IQ tests and ability in repairing power lines), the Supreme Court struck down the practice.

Employers soon smartened up and abandoned crude so-called intelligence tests that had no relation to what an employee did in his day-to-day work.

Today, however, more employers than ever are using credit reports and criminal background checks as part of the application process. Often these facially neutral policies regarding criminal background checks and credit checks have a disparate impact on minority employees. And it’s difficult to see their job-relatedness, especially in light of social science data that, five years after a conviction, a so-called convict has the same chance of reoffending as anyone else – even someone with no prior record.

As part of generally stepping up its enforcement activities under President Obama, the Equal Employment Opportunity Commission (EEOC), has begun to attack employers’ use of criminal records and credit scores. In October, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against The Freeman Companies, a convention conglomerate, seeking to challenge Freeman’s policy of basing hiring decisions in part on the basis of credit scores and criminal records: http://www.eeoc.gov/eeoc/newsroom/release/10-1-09b.cfm.

The Freeman case could turn out to be an important victory for employees. It could also be a big step in making employment decisions more rational.

Non-Competes and Promotions: The First Circuit’s Take in Astro-Med

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Non-compete agreements must be reasonably limited in time and geographic scope and supported by consideration in order to be enforceable (among other factors). In many circumstances, the “consideration” equals a job. As an employee’s job changes, however, a new non-compete may be required. In 2004, three separate Massachusetts Superior Court decisions made clear that a restrictive covenant is likely unenforceable where it was entered into prior to material changes — such as a promotion — in an employment relationship.

Lycos, Inc. v. Lincoln Jackson, 18 Mass. L. Rep. 256 (2004) (Aug. 24, 2004) (Houston, J.) (denying request for a preliminary injunction “[b]ecause a material change in the employment relationship between [defendant] and [plaintiff] voided the previous Agreement, and because defendant did not sign the Offer Letter incorporating the old Agreement, no written nondisclosure, noncompetition and developments agreement now exists between the parties”)
R.E. Moulton, Inc. v. Lee, 18 Mass. L. Rep. 157 (June 17, 2004) (Kottmyer, J.) (denying request for a preliminary injunction where employee’s position and compensation changed, but no new non-compete agreement was signed and the employer did not notify the employee that he was still subject to the non-compete clause)
Cypress Group, Inc. v. Stride & Assocs., Inc., 17 Mass. L. Rep. 436 (Feb. 11, 2004) (Burnes, J.) (denying request for a preliminary injunction because employees did not sign new restrictive covenant after their promotions to new positions at company)

Recently, the First Circuit’s decision in Astro-Med v. Nihon, called this principle into question. The case originated out of the District Court of Rhode Island. In Astro-Med, Kevin Plant signed a non-compete in 2002 when he joined the company as a Product Specialist, which prohibited from working in all of North America and Europe for a period of one year after his employment ended. In 2004, the company promoted Plant to a sales role in which he served the state of Florida. The non-compete agreement, as written, was unenforceable because the geographic scope was far too broad. The District Court revised the non-compete agreement for the employer so that it could enforceable. In doing so, the court curtailed its territorial reach to Florida and certain customers.

Plant argued that, even with the District Court’s revisions, the non-compete was still unenforceable due to material changes in his employment when he was promoted to a sales role in 2004 and assigned a territory. Although the non-compete agreement was governed by Rhode Island law, Plant cited to Massachusetts law as persuasive authority. Noting the employer’s complete lack of effort to have Plant sign a new non-compete agreement following his promotion, the First Circuit rejected this argument:

Assuming that Rhode Island would adopt Massachusetts’ material change rule, the evidence in this case is insufficient to generate its application. Plant’s job change from product specialist to district sales manager does not reflect a mutual abandonment and rescission of the non-competition provision; there is no suggestion that Astro-Med approached Plant with a new employment agreement; and, there is no evidence of intent on either Astro-Med’s or Plant’s part to revoke or supersede the employment agreement.

Unfortunately, the First Circuit ignored language in F.A. Bartlett Tree Expert Co. v. Barrington, which makes clear that a material change in employment, by itself, can be evidence that a prior non-compete has been abandoned:

The defendant worked under the 1948 contract for twelve years. In 1960, the defendant’s rate of compensation and sales area were changed. Such far reaching changes strongly suggest that the parties had abandoned their old arrangement and had entered into a new relationship.

F.A. Bartlett Tree Expert Co., 353 Mass. 585, 587 (1968).

As other courts interpreting the Massachusetts “material change” rule have recognized, whether an employer has requested a new non-compete following a change in the employment relationship is not dispositive. Rather, “such efforts constitute additional proof that a new employment relationship was forming ….” See Iron Mountain v. Taddeo, 455 F. Supp. 2d 124, 134 (EDNY 2006) (emphasis added). Management-side attorneys will likely use the Astro-Med decision to argue in favor of the enforceability of non-competes that pre-date an employee’s promotion. A careful reading of each Massachusetts case addressing the “material change” doctrine, however, makes clear that a promotion by itself can (under certain circumstances) constitute sufficient evidence that a new employment relationship was created — requiring a new non-compete.

Non-Compete Agreements in Massachusetts May Soon Be Guided by New Legislation

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Non-competes in Massachusetts have been a hot topic in 2009. On October 7, 2009, the Joint Committee on Labor and Workforce Development held a public hearing on proposed non-compete legislation, entitled An Act Relative to NonCompete Agreements, sponsored by Representatives William Brownsberger (D-Belmont) and Lori Ehrlich (D-Marblehead). The experience of Caroline Huang, whose career was negatively affected by a broad restrictive covenant that kept her out of her field, encouraged Representative Brownsberger to focus on non-compete legislation. Ms. Huang’s website, Prohibit Restrictive Employment Covenants, provides many resources and updates regarding the proposed bill.

I was fortunate to be in the position to provide commentary on the drafts that led to the final proposed bill. I also testified at the public hearing with a client, who years prior found her livelihood in jeopardy when her former employer tried to enforce an overly broad non-compete agreement. Although we were successful in opposing the employer’s Motion for Preliminary Injunction, the cost in doing so sometimes prevents employees from properly asserting their rights. Employers know this and, unfortunately, often attempt to leverage the disparity in spending power. This creates a perverse outcome in which an employee is forced to abide by an otherwise unenforceable non-compete in order to avoid legal fees.

One of the highlights of the proposed legislation is a clause that entitles employees to attorneys’ fees “if the court declines to enforce a material restriction or reforms a restriction in material respect.” This will discourage employers from pursuing tenuous claims and help to preserve scarce judicial resources. Notably, the bill also limits non-competes to employees earning an annual salary of more than $75,000. Finally, the proposed legislation creates a presumption of enforceability for non-compete agreements that span up to 6 months.

Workplace Discrimination Laws Broadened By The Genetic Information Nondiscrimination Act (GINA)

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Employees will soon gain protection against employers that utilize genetic testing or consider genetic background in making hiring, firing, promotion decisions. The Genetic Information Nondiscrimination Act (“GINA”) passed by Congress in March 2008 becomes effective law in the next coming weeks as this New York Times story details:
Law Seeks to Ban Misuse of Genetic Testing. On November 21, 2009, the Genetic Information Nondiscrimination Act takes effect for all employers with 15 or more employees and on December 7, 2009, the Act takes effect for insurers.

GINA forbids certain discrimination on the basis of genetic information and the collecting and sharing of certain genetic information. GINA only allows the collection of genetic information in a few limited circumstances:

(1) If the information is necessary for a certification requirement under the Family and Medical Leave Act or a state leave statute.
(2) If the information is used to monitor the effects of hazardous workplace exposure; or
(3) If the employer conducts DNA analysis as a forensic laboratory.

As science uncovers more and more genetic predispositions for disease, the importance of protecting employees from discrimination on the basis of their genes increases. Without GINA, employers would have a strong incentive to discriminate against talented employees whose genetic background threaten to drive up their health insurance premiums. Senator Ted Kennedy heralded the Genetic Information Nondiscrimination Act as “the first major civil rights bill of the new century.” Without GINA, as genetic screening became more common place, employees with “bad genes” might have found themselves unemployable.

GINA forbids discrimination not only on the basis of an employee or prospective employee’s genetic information, but also discrimination based upon genetic information of family members. A “family member” includes an individual’s spouse, dependent child and certain other relatives.

Employees should know that, unlike HIPAA and some other health laws that do not allow an employee to sue for violations, the Genetic Information Nondiscrimination Act confers a private cause of action on certain victims of genetic discrimination. Section 207 of the Genetic Information Nondiscrimination Act gives a cause of action to employees and prospective employees who are discriminated against on the basis of their genetic information or whose genetic information is improperly collected or shared.

GINA enables employees to recover lost wages, costs, attorney’s fees and, in some instances, punitive damages. The punitive damages provisions have ceilings. For example, if the employer has more than 500 employees, an employee may recover up to $300,000 in punitive damages. There is also a retaliation provision to GINA that gives a cause of action to any employee who opposes a policy or procedure that violates GINA.

Employeees Who Suffer Workplace Discrimination Gain Clarification On Obtaining Punitive Damages

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Employees who suffer workplace discrimination in violation of the Massachusetts Fair Employment Practices Act are entitled to recover four types of damages: front pay (the amount by which someone’s future earnings are reduced by discrimination), back pay (the plaintiff’s lost income from the time of the discrimination up to a jury verdict), emotional distress damages, and attorney’s fees. These damages are compensatory damages, designed to compensate the victim of discrimination for the actual harm s/he suffered and no more.

Punitive damages are another category of damages provided by the Fair Employment Practices Act for the victims of unlawful discrimination on the basis of race, color, religious creed, national origin, sex, sexual orientation, or handicap. However, not all victims of unlawful workplace discrimination are entitled to punitive damages. Recently, in the case of Haddad v. Walmart Stores, Inc. , the Massachusetts Supreme Judicial Court clarified the standard for the award of punitive damages.

In Haddad, a jury awarded punitive damages to the plaintiff for the gender discrimination that she had suffered. The trial judge, however, took away the punitive damages. The parties then filed cross-appeals, raising numerous questions of law.

On appeal, the plaintiff argued that the trial judge’s decision to take away the punitive damages was error. Simplifying a bit here, the plaintiff went on to argue that Massachusetts law permits punitive damages for intentional acts and, since discrimination is the result of intentional acts, any finding of discrimination is sufficient to support an award of punitive damages.

The Supreme Judicial Court (“SJC”) agreed with the plaintiff that the trial court’s decision to take away the jury’s award of punitive damages was a mistake. The SJC found that the the trial court judge may have based his decision on a belief that, in order to recover punitive damages, an employee must show that his/her employer acted with the knowledge that its actions violated applicable civil rights laws. The SJC said that, to the extent the judge’s order relied upon that reasoning, it was in error.

The Supreme Judicial Court went on to clarify the circumstances under which a victim of unlawful discrimination may recover punitive damages. The SJC held that punitive damages in a discrimination case may be awarded only where the defendant’s conduct is outrageous or egregious. In determining whether the defendant’s conduct is outrageous or egregious, a judge or jury should consider several factors, including but not limited to:

(1) whether there was a conscious or purposeful effort to demean or diminish a class of which the plaintiff is a member (or the plaintiff because he or she is a member of a class);
(2) whether the defendant was aware that the discriminatory conduct would likely cause serious harm or recklessly disregarded the likelihood that serious harm would arise;
(3) the actual harm to the plaintiff;
(4) the defendant’s conduct after learning that the initial conduct would likely cause harm; and
(5) the duration of the wrongful conduct and any concealment of that conduct by the defendant.

The Supreme Judicial Court suggested these five factors do not exhaust the list of considerations that may be relevant to an award of punitive damages in a discrimination case, but they do help clarify what an employee who is the victim of workplace discrimination should show if she hopes to recover punitive damages against her employer.
You can watch a video of the oral arguments in the Haddad case on Suffolk Law’s website.

Employees Beware: Computer Fraud & Abuse Act May Restrict Ability To Retain Documents

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Employees need to be especially cautious in retaining documents that may be considered the property of the employer. A law Congress passed to deter computer hackers is now being wielded by corporations in litigation against their former employees. The broad scope of this law is now on display in federal court here in Massachusetts.

The Computer Fraud and Abuse Act (“CFAA”) is a federal law that establishes civil liability for anyone who:

“[k]nowingly and with the intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud or obtains anything of value.

18 USC Section 1030 (a)(4).

Sounds like a law designed to punish computer hackers, right? Well, like the civil RICO act, it’s another broad federal statute that is being put to use in different contexts by clever lawyers. In CFAA’s broad contours, some employment defense lawyers see a weapon for use against former employees who wish to sue their former employer for civil rights violations or other workplace torts.

As the Third Circuit Court of Appeals has noted: “Employers…are increasingly taking advantage of the CFAA’s civil remedies to sue former employees and their new companies who seek a competitive edge through wrongful use of information from the former employer’s computer system.” P.C. Yonkers, Inc. v. Celebrations the Party and Seasonal Superstore, LLC, 428 F.3d 504, 510 (3rd Cir. 2005).

Now a CFAA claim against a former employee is being litigated in New England’s own First Circuit. In a recent opinion in federal district court in Massachusetts, Judge Nathaniel M. Gorton denied a Motion to Dismiss filed by Thomas Pullen after his former employer, Guest-Tek Interactive Entertainment, Inc., sued Pullen for (among other things) allegedly downloading corporate files to a personal USB device. Pullen, as Guest-Tek’s former North American Vice President of Sales, had virtually unrestricted access to data on Guest-Tek’s computers. However, Judge Gorton found that, at least at this early stage, the lawsuit against Pullen should not be dismissed because Pullen’s use of Guest-Tek’s computers might have been “without authorization” or in excess of his “authorized access,” notwithstanding the fact that, as a high-ranking executive, Pullen was permitted access to all of the files at issue in the case.

Although the allegations in the Pullen case are egregious — Guest-Tek alleges that Pullen took the files in order to share them with his new employer and help the new employer gain a competitive advantage over Guest-Tek — employees should take heed. If you are a victim of workplace discrimination or sexual harassment and you wish to take home with you computer files that support your claims, you may expose yourself to a counterclaim by your employer under CFAA for doing so.