Aroostook Jury Awards $240,000 in Medical Malpractice Case

Recently, the Maine Lawyers Review (June 23, 2016) reported that an Aroostook County jury awarded $240,000 to a plaintiff in a medical malpractive case against the Aroostook Medical Center for twice failing to direct him to the services of a surgeon for his hand injury, resulting in the eventual amputation of his left index finger. 

Plaintiff Travis Blair severed a major nerve in his left finger when he cut himself while attempting to free his child’s Christmas present from its packaging (year unspecified). Following the injury, Blair reported to the Aroostook Medical Center where emergency doctors failed to diagnose his nerve injury. Ten days later, Blair’s Primary Care Physician (also an employee of the Aroostook Medical Center) properly identified the damage in Blair’s finger, but informed Blair that it was “too late” for surgical correction and that Blair would likely suffer numbness in his finger for the rest of his life. Eighty-one days after the injury, Blair was seen by an orthopedic who concluded that Blair should have had surgery to repair the nerve in his finger as soon as possible after it had been severed, and that the delay had deprived Blair of his best chance to restore feeling to the finger. Ultimately, Blair’s finger was amputated. 

Notably, the jury’s $240,000 award in this case stands in stark contrast to the findings of the mandatory medical malpractice screening panel—who found in favor of the Aroostook Medical Center. Given the divergent outcomes between the jury award and the panel finding, the article’s author questions whether the med mal screening panel is effective in meeting the goals for which it was established: identification and compensation of meritorious claims and dismissal of those nonmeritorious. 

Last year, a bill (LD 1311) that would have reformed the current medical malpractive screening system—by shifting the responsibility to a state agency—died in the Legislature. The bill was widely opposed by professionals in the legal, medical, and insurance industries. While the article does not offer a viable alternative, the author remarks that the $240,000 award serves as an example of the inefficacy of the current screening panel.

Law Court reinstates ex parte attachment/priority for estate of Noyes Street fire victim

 On Tuesday, June 7, 2016, the Law Court (Gorman, J.), in Estate of Summers et al. v. Nisbet, 2016 ME 88, reversed the decision of the Cumberland County Superior Court (Mills, J.) to dissolve the attachment that the Estate of Steven Summers had received on an ex parte basis in connection with its complaint against Gregory Nisbet (hereinafter “the Defendant”) in December 2014 and, upon issuing a new attachment, its decision not to effectuate that attachment as of its original date of entry.


On November 1, 2014, Steven Summers perished in an apartment fire on the premises of a building located on Noyes Street in Portland, Maine, and owned by the Defendant. In addition to Summers, Ashley Thomas, Nicole Finlay, David Bragdon, Jr., and Christopher Conlee (represented by parties hereinafter labeled as “the other estates”) also perished in the blaze. On November 21, 2014, the Estate of Summers filed a complaint in the Superior Court alleging various causes of action for wrongful death and pain and suffering, alleging that the apartment building was in a state of disrepair, lacked working smoke detector and a passable secondary means of egress, contained an illegal third-floor apartment, violated various fire codes, and that the Defendant allowed storage of combustible materials on the property. Between the dates of January 6 and January 30, 2015, the other estates filed similar causes of action based on similar facts.


In its complaint, the Estate of Summers sought an order for attachment and trustee process on an ex parte basis. The trial court granted the request, on an ex parte basis, in the amount of $1.7 million on December 3, 2014. The Defendant did not challenge the attachment.


Subsequently the other estates each moved for attachment and trustee process, which the Defendant again did not challenge. Prior to the trial court’s review of these motions, the other estates also moved to dissolve and modify the Estate of Summers’s attachment order on the grounds that the Estate of Summers had failed to meet the requirements for attachment on anex parte basis. Following a hearing on these motions, the trial court dissolved the Estate of Summers’s ex parte attachment of December 3, 2014, and simultaneously granted attachments in favor of the Estate of Summers and the other estates. The trial court’s order resulted in a loss of priority status for the Estate of Summers, which timely appealed.


On appeal, the Estate of Summers argued that the trial court erred by concluding that the other estates had standing to challenge its December 2014 attachment order. Reviewing the standard for attachment on an ex parte basis, the Court held that a plaintiff is required to “establish the same likelihood of success [as required under the rules for seeking standard attachment—a likelihood of success in the underlying suit and of recovering in that amount of greater] but also requires the plaintiff to establish that there is a clear danger that the defendant if notified in advance of the attachment of the property will remove it from the state or will conceal it or will otherwise make it unavailable to satisfy a judgment or that there is immediate danger that the defendant will damage of destroy the property to be attached.”


Upon reviewing the scope of the above inquiry that Maine courts must make in assessing motions for ex parte attachment, the Law Court concluded that once an attachment is challenged, the ex parte portion of the analysis becomes moot, and a motion to dissolve an ex parte  attachment is treated as the equivalent of a contested motion for attachment after notice in which the attaching plaintiff has the burden to establish, by a preponderance of the evidence its entitlement to recovery of an amount equal to or greater than the amount of the attachment. In articulating this rule, the Law Court noted the thrust of the inquiry upon review of a grant of ex parte attachment is whether the plaintiff has made the requisite showing to obtain the attachment in the first place.


The Court finally concluded that where, as here, none of the other estates had challenged the Estate of Summers’s entitlement to an attachment there was no inquiry for the trial court to make into whether the Estate of Summers had in fact met the requisite elements for the granted ex parte attachment, and therefore its dissolution of the ex parte attachment was error for straying outside the boundaries of this narrow inquiry.


Following its decision to reinstate the ex parte attachment order, the Law Court also held that it reinstated the date of the December 3, 2014, as the date of the Estate of Summers’s priority.


Order for dissolution by the trial court vacated. Original ex parte order and priority date reinstated.

Court Decision: Davis v. R C & Sons Paving, 2011 ME 88

The Law Court in Davis v. R C & Sons Paving, 2011 ME 88 (August 11, 2011), Gorman, J. issued an opinion affirming summary judgment entered against plaintiff Marilyn Davis who was injured when she fell in her employer's icy parking lot. Ms. Davis's employer, St. Mary's Medical Center, had contracted with the Defendant to plow and sand all parking areas and sidewalks.

The Defendant argued that under Restatement (Second) of Contracts, sec. 302, it did not owe a duty because Ms. Davis was not a "third party beneficiary" or "intended beneficiary" of the snow removal agreement. Ms. Davis countered that she was an intended beneficiary and that the plow company owed her a duty because it negligently created a dangerous condition in the parking area.

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Supreme Court Decision: Brown v. Entertainment Merchants Association, 564 U.S. ___ (2011)

The U. S. Supreme Court, in a 7 - 2 decision issued in Brown v. Entertainment Merchants Association, 564 U.S. _ (2011), on June 27, 2011, struck down a California ban on sales of violent video games  to children. Justice Antonin Scalia, writing for the majority, stated  that video games were subject to full First Amendment protection.

Violent depictions, stated Justice Scalia, have never been subject to government restrictions. He cited various fairy tales, such as "Snow White" and "Cinderella," in support of this proposition. The goal of the law to protect minors did not alter the constitutional analysis.

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Supreme Court Decision: Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011)

In Wal-Mart Stores, Inc. v. Dukes, 564 U.S. _(2011) , the United States Supreme Court, divided 5 to 4, refused to allow a class action suit against the retail giant to go forward. In the majority opinion issued on June 20, 2011, Justice Antonin Scalia overturned the class certification of a million and half female employees who alleged discrimination in pay and promotions.

The Court did not determine whether the country's largest private employer actually was guilty of gender bias but only that the women could not proceed as a class.

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Supreme Court Protects Generic Drug Companies In Pliva v. Mensing Decision

In Pliva, Inc. v. Mensing, 564 U.S. ___ (2011), a decision issued on June 23, 2011 by the United States Supreme Court ruled that generic drug makers cannot be sued under state law on the basis that they failed to provide adequate warning labels about potential side effects, effectively overturning U.S. appeals court rulings that allowed such lawsuits.

The generic drug companies in Pliva argued that federal law requires generic drugs to have the same labels as their brand-name equivalents.

Therefore, if the labels have been approved by the U.S. Food and Drug Administration, then such lawsuits are barred by federal law.

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Court Decision: Burns v. Architectural Doors and Windows, 2011 ME 61

The Maine Supreme Judicial Court sitting as the Law Court today upheld a jury verdict entered against the plaintiff in a product liability case arising out of an allegedly defective overhead door. Burns v. Architectural Doors and Windows, 2011 ME 61 (Saufley, C.J.)

Plaintiff was injured at work when an overhead door closed while he was walking through and struck him on the head. Plaintiff knew that the door had no safety mechanism to prevent it from stopping if it encountered an obstruction. Basically, once one pushed the "down" button, the door would slam down with no emergency shut-off switch.

Plaintiff brought suit against Defendant ADW which had installed the door and against the manufacturer of the door on one product liability count alleging defective condition because the door did not contain a safety mechanism. Neither Defendant had manufactured the allegedly defective closing mechanism. The Superior Court entered an order on the Defendants' summary judgment motions, allowing Plaintiff to go forward on a failure to warn theory although this was not included in his pleadings. Plaintiff settled with the manufacturer and proceeded to trial against ADW.

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Court Decision: Fitzpatrick v. Cohen

U. S. District Court Judge Singal entered an order on April 12, 2011, in Fitzpatrick v. Cohen applying the amended Wrongful Death statute, 18-A M.R.S. sec. 2-804 in a case where the injury which allegedly precipitated the death of the decedent occurred before the amendment went into effect.

Ryan Fitzpatrick was seriously injured in a car accident on July 2, 2008. A lawsuit for damages was filed against the defendant on December 29, 2009. On February 11, 2010, Ryan was killed in a skiing accident. His father and personal representative, David Fitzpatrick, alleged that Ryan's death was caused by the 2008 car accident.

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Court Decision: Peterson v. Jhamb, 2011 ME 35

The Maine Supreme Judicial Court, sitting at the Law Court, issued an opinion today, March 22, 2011, by Justice Jabar in Peterson v. Jhamb, 2011 ME 35. In this medical malpractice action for failure to diagnose recurrent breast cancer which had metastasized to the Plainitff's bones, the Court upheld the jury's verdict of more than $1.1M. The action was brought against Plaintiff's, Donna Seabury-Peterson, primary care doctor Kristin Jhamb, M.D. and Mid Coast Medical Group. Mr. Peterson also brought a claim for loss of consortium (companionship) of his wife.

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Court Decision: Lyman v. Huber

In Lyman v. Huber, 2010 ME 139, the Maine Supreme Judicial Court sitting as the Law Court vacated a judgment issued by the Superior Court (Cumberland County, Delahanty, J.) in favor of the plaintiff, awarding her $106,000 for intentional infliction of emotional distress (IIED) and loss of business opportunity. The unanimous Law Court opinion, written by Justice Jon Levy, found that the elements of an IIED claim, which require proof of such severe emotional distress that no reasonable person could endure it, were not met by the plaintiff.

The plaintiff and the defendant had been romantically involved for a number of years and purchased property together where the plaintiff planned to operate a horse farm. The defendant became increasingly controlling and hurtful in his behavior towards the plaintiff which placed her under a great deal of stress. She filed an eight-count complaint against him, including seeking partition of the property, damages for IIED, and "ouster."

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Court Decision: State Farm v. Linton

Kennebec County Superior Court Justice Nancy Mills found that State Farm did not have to provide insurance coverage for an accident that killed one motorist, James Carey. State Farm brought a declaratory judgment action against Roger Linton, who was driving a vehicle owned by his employer and insured by State Farm, and also against the Estate of Mr. Carey.

An independent contractor working for Jonathan Jennings. d/b/a Forgotten Stoneworks, Mr. Linton was given use of a company truck to drive back and forth to work. Although prior to the accident, Mr. Linton had used the vehicle on occasion for personal use, such excursions were to be very limited.

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Homeowner Not Liable For Drunk Drivers' Accident

Is a homeowner liable for car accidents caused by drivers who have been drinking at his home? If the owner did not supply the alcohol and did not know about the alcohol consumption, then courts have found the answer to be no.

While the Maine Law Court has yet to weigh in on this issue, recently, a Maine Superior Court decision found in favor of the homeowner, just as the Supreme Court of Wisconsin previously had.

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Multi-Million Dollar Brain Injury Verdict Overturned

A sharply divided Maine Supreme Judicial Court recently overturned the nearly $3 million verdict a Cumberland County jury awarded last year to a young man with a brain injury. 

Tolliver v. Maine Department of Transportation, 2008 ME 83, (May 13, 2008). 

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