Drohan Tocchio & Morgan Attorneys At Law | A Professional Corporation

Home    Mission    Areas    Attorneys    News   Employment    Contact Us

Recent Judgements: The lawyers at Drohan Tocchio & Morgan are involved in trials in all state and federal courts. Municipal and zoning work also is an important area of practice with the firm representing clients before town planning boards, zoning board of appeals and conservation commissions.  'Big-number' verdicts hit the heights in 2007 By David E. Frank Massachusetts Lawyers Weekly   Top five all exceed $10M $26M med-mal award largest ever reported When a Suffolk County jury returned a verdict against Notre Dame football coach Charlie Weis last October in his lawsuit against the two surgeons who had performed his gastric bypass surgery, most legal experts said the case was yet another example of the hurdles plaintiffs face when they sue doctors. After all, if someone like Weis — who was able to put New England Patriots’ MVP Tom Brady on his witness list — could not get a jury to find in his favor, how would anyone else be able to do so? While it is true that many medical-malpractice plaintiffs, including high-profile litigants such as Weis, do indeed lose at trial, a review of last year’s top jury awards shows that a patient’s ability to win big remains a distinct possibility. In fact, for the fourth time since 1995, when Lawyers Weekly first began compiling jury data, the largest verdict of 2007 was rendered in a medical-malpractice trial. On Oct. 11, a Superior Court jury awarded a permanently disabled child, who was injured during birth, more than $26 million after finding two doctors at Boston’s Brigham & Women’s Hospital liable. Elizabeth N. Mulvey of Boston persuaded the jury that the physicians’ eight- to 10-hour delay in performing a Caesarean section on the mother led her client to ultimately suffer severe cerebral palsy and hypoxic encephalopathy. The $26 million award is the largest medmal verdict ever recorded by Lawyers Weekly, exceeding a $23.4 million award reported in 2005. “You don’t see large verdicts like this every day, but I’ve been involved in a trial with a verdict that was almost as big as this one from the defense side,” says veteran med-mal attorney Charles P. Reidy III of Boston. “I would bet you that neither [party] ever would have predicted in their wildest imagination that a juror would award this sum of money,” he adds. “But the bottom line is that, in terms of telling clients what could happen, verdicts like this require lawyers to clearly let them know that a big number is a possibility.” If the number of multi-million-dollar jury awards is an accurate barometer of success, 2007 was also an excellent year for plaintiffs outside the medical-malpractice arena. For the third straight year, the top five verdicts all exceeded the largest award handed out in 2004, which was $9.41 million. The top five of 2007 also all exceeded $10 million — a feat accomplished only once before, in 2005. “A lot of big verdicts are coming from cases that involve catastrophic injuries, where you’re finding that medical expenses in this day and age are going to be in the eight-figure range,” observes James D. Gotz of Boston. Gotz should know: He earned the second largest verdict of the year — a $16 million award for a client who lost use of his arms and legs after being hit by a car outside a Salem commuter rail station. “I don’t think these are examples of runaway juries,” says Gotz. “You’re talking about situations, in many cases, where special damages are going to be an issue. So once liability is established, you’re going to continue seeing big awards.” 4: $11 Million (eminent domain) Exelon Edgar, LLC and Boston Edison Company, et al. v. Massachusetts Water Resources Authority Norfolk Superior Court Date of verdict: Nov. 30, 2007 Plaintiffs’attorneys: Jeffery A. Tocchio, Drohan, Tocchio & Morgan, Hingham; Mark S. Bourbeau, Bourbeau & Associates, Boston Status of verdict: Post-trial motions When deliberations began at the end of what is believed to be the longest civil trial in Norfolk County history, Mark S. Bourbeau thought there was little more he could do in front of the jury until a verdict was rendered. It turns out the opposite was true. At the start of the 10th day of deliberations, Judge John P. O’Connor Jr. informed jurors that, if they thought it would be helpful, he would allow the lawyers to re-argue any of the points of contention. Less than an hour later, the jury accepted the offer and asked both sides to address an issue holding up deliberations. “We only had a few minutes to prepare, and then we each got about 10 minutes to give a mini-closing argument,” says Bourbeau. “I’ve never done something like that before. I thought it was unusual, but it was obviously helpful because the next morning they came in with [an $11 million] verdict.” The verdict was rendered in an eminent domain case against the Massachusetts Water Resources Authority for property it had taken on the Quincy-Weymouth border in 1999 and 2003. The trial, which spanned eight weeks, involved claims by Boston Edison and several other plaintiffs that they had not been adequately paid for the property and that the MWRA project reduced the value of the land. With a number of complicated issues on the table, Bourbeau says it was not until the lawyers re- addressed the jury that an end to the marathon trial finally was in sight. “It was an exhilarating experience as a trial lawyer because it forced you to focus on a particular issue long after the case had gone to the jury and argue a point you knew was critical to the deliberations,” he says. “Other lawyers told me it was the best part of my argument.” David E. Frank may be reached at david.frank@lawyersweekly.com Massachusetts Lawyer's Weekly volume 36, issue 23, January 28, 2008 "Deadbeat contractor customers win legal battle:  Couple won't be forced to pay cost of materials" By VICKI-ANN DOWNING The Enterprise A Norton couple who challenged National Lumber Co.’s right to make them pay for $62,170 in building materials owed by their deadbeat contractor has won a key legal victory. National Lumber, based in Mansfield, had sought to enforce a mechanics lien against Michael and Cheryl Needleman of Norton, who hired Jeffrey A. Houde to build a home for them in 2003. But Judge Merita Hopkins ruled on Tuesday that National Lumber could not enforce the lien because the Needlemans did not have a valid contract with Houde, who forged their building permit. Hopkins also said the Needlemans did not owe Houde any money when they fired him, so National Lumber could not collect from them. The trial, which took place over three days at Southeast Housing Court in New Bedford, was closely followed by the former customers of another failed home improvement contractor, Dennis Bartel of Taunton, who is scheduled for trial on larceny charges on Oct. 15. At least eight of Bartel’s former customers in Brockton, Easton, Raynham, Taunton, Needham and Natick also have mechanics liens from National Lumber totaling at least $200,000 for building materials Bartel did not pay for. Kara Moheban McLoy of Hingham, a lawyer for the Needlemans, said the court decision ‘‘most likely will have far-reaching implications for subcontractors and suppliers who repeatedly assert liens and expect to be compensated by the homeowner or landowner when the contractor fails to pay them.’’ The Needlemans had argued that National Lumber’s practice of extending credit to bad contractors, then forcing homeowners to pay the bill through the lien law, constituted unfair and deceptive trade. The state’s mechanics lien statute was designed to protect the interests of subcontractors, but in practice, it has left many homeowners such as the Needlemans holding the bill when unscrupulous contractors default on the job. McLoy and Jason Morgan, representing the Needlemans, pointed out that National Lumber continued to extend credit to Houde even when he was behind by more than $145,000 in his account for other projects. Morgan said National Lumber gave Houde credit, even though he was already overdue in payments, because ‘‘they knew they had the Needlemans as a backstop.’’ Mark Barnett, the lawyer for National Lumber, argued during the trial that the company was ‘‘proceeding under a legitimate right’’ in imposing the mechanics lien on the Needlemans’ home. Barnett left court without comment after the decision on Tuesday. National Lumber is expected to appeal. Michael Needleman said he was elated by the judge’s decision. ‘‘Somebody had to fight them,’’ Needleman said. ‘‘I hope that other families that have been victimized by National Lumber ... will know that their actions are being brought to the light of day.’’ To get rid of the lien on his home so he could access his bank loan to complete construction on his house, Needleman was forced to place $75,000 in a bond with a surety company. National Lumber had sought to receive $61,170 of that money, which it said was owed by Houde. Because of the judge’s decision on Tuesday, the Needlemans will get to keep it. Houde, now of Foxboro, was also a defendant in the case, but he failed to appear for trial. The Needlemans signed a $350,000 contract for a new house with Houde and paid him $139,000 between November 2003 and January 2004. Trouble surfaced on Jan. 23, 2004, when a subcontractor told Michael Needleman he was refusing to do further work because Houde was not paying subcontractors. Needleman said he confronted Houde, who told him the account of his company, Plain Street Realty Trust, had been frozen by his bank. Houde said he was using money from Needleman to pay subcontractors on other jobs. Houde asked Needleman to sign a new construction agreement with another of his businesses, Timberstone Builders, but Needleman refused. The same day, Needleman learned from the Norton building inspector, Joseph Clancy, that the building permit Houde used on Needleman’s home was a forgery. Needleman fired Houde on Jan. 24, and met that day with Steven S. Kaitz, chief executive officer for National Lumber, to discuss how he could complete the project on his own. Three days later, National Lumber filed a notice of contract against the Needlemans at the Registry of Deeds, the first step in securing a mechanics lien. The Needlemans have sold their Norton home and are moving to North Carolina. Vicki-Ann Downing may be reached at vdowning@enterprisenews.com . Copyright 2007 The Patriot Ledger Transmitted Thursday, June 28, 2007 2005 Tax Law Changes The start of a new year is a good time to evaluate tax-savings strategies for the upcoming year.   Listed below are the important tax changes effective January 1, 2005 . Estate and Gift Taxes The federal estate and generation-skipping transfer (GST) exemptions remain at $1.5 million in 2005, ameliorating what are still very high maximum rates under each tax: 47% for 2005 (down from 48% in 2004).  Lower rates and higher exemption amounts are scheduled to take effect through 2009, followed by a one-year repeal of both the federal estate and GST taxes in 2010.  In 2011, all bets are off, and the estate and GST tax rules revert back to exemptions and rates in effect in 2001 (only a $1,000,000 exemption and a maximum estate tax rate of 55%).  Additional legislation is needed to avoid an abrupt return to prior law in 2011.  Massachusetts has its own estate tax in addition to the federal estate tax.  The Massachusetts estate tax exemption is $950,000 in 2005, scheduled to increase to $1,000,000 in 2006 and thereafter.  Massachusetts does not have a gift tax. The federal gift tax exemption remains at $1,000,000 per person.  The gift tax annual exclusion in 2005 is $11,000 per person per donee or $22,000 per married couple per donee.  The annual exclusion limit for gifts to a spouse who is not a U.S. citizen is $117,000 in 2005. Comments There is a misconception that the estate tax will eventually be “repealed” under the 2001 Tax Act and therefore no estate planning is necessary.   This is incorrect for two reasons: (1) under current federal law, the repeal only lasts for 1 year (2010) and the estate tax is reinstated in 2011; and (2) even if Congress passes a full repeal of the federal estate tax (which is unlikely), Massachusetts has its own estate tax, which requires planning to avoid unnecessary and adverse state estate taxes. In 2005, a few states, like Florida and California , will not have state estate taxes like Massachusetts .  Establishing residency for estate planning purposes in one of these states is not always as simple as purchasing a new home and rules vary from state to state. With the proliferation of state estate taxes, the location of assets like vacation homes and boats can have real significance.  We recommend that clients prepare an updated inventory of major assets, including ownership, value and location, and provide this list to us or your accountant.  2.      Planning for Retirement Each year the Internal Revenue Service adjusts for inflation the permissible contribution amounts to retirement plans.  For 2005, the new contribution limits are as follows: 401(k) and 403(b) Deferral Limits $14,000 401(k) and 403(b) Catch-Up Limits $4,000 “Highly Compensated Employee” HCE in 2005 if compensation in 2004 exceeded $90,000 Social Security – Full Retirement Age 65 years, 6 months Roth IRA Contribution Limit $4,000 Roth IRA Catch-Up Limit $500 Defined Benefit Dollar Limit $170,000 Defined Contribution Dollar Limit $42,000 SIMPLE Employee Contribution Limit $10,000 SIMPLE Employee Catch-Up Limit $2,000 Comments Will you turn 70 ½ in 2005?  Once you attain the age of 70 ½  you become subject to the minimum required distribution (MRD) rules under the Internal Revenue Code.  These rules require you to start taking annual taxable withdrawals from traditional IRAs set up in your name. How does this work?  No later than April 1 of the year after you turn 70 ½ ( April 1, 2006 if you turn 70 ½ in 2005), you must withdraw the initial MRD from your IRA.  This initial withdrawal is actually for the 2005 tax year, even though the IRS allows you to take it as late as April 1, 2006 .  However, you also have the option of withdrawing your initial MRD by December 31 of 2005.  Either way, you must withdraw another MRD for the 2006 tax year and for all subsequent years by December 31 of each year. Note: It makes sense to withdraw your initial MRD by December 31 rather than waiting until April 1, 2006.  If you wait, 2006 will include two MRD withdrawals (one for April 1, 2006 , representing the MRD for the 2005 tax year, and one by December 31 representing the MRD for the 2006 tax year).  This “double dip” could easily push you into higher tax brackets in 2006, particularly if you have large IRA balances Please contact us if you have any questions regarding MRDs from your IRA. 3.      Income Tax Changes. 2005 Federal income tax rates and brackets are as follows: Bracket Single Joint HOH* 10% $0-7,300 $0-14,600 $0-10,450 Beginning of 15% 7,301 14,601 10,451 Beginning of 25% 29,701 59,401 39,801 Beginning of 28% 71,951 119,951 102,801 Beginning of 33% 150,151 182,801 166,451 Beginning of 35% 326,451 326,451 326,451 * Head of Household 2005 Standard Deduction and Personal Exemption Amounts:   Single Joint HOH* Standard Deduction $5,000 $10,000 $7,300 Personal Exemption 3,200 3,200 3,200 Beginning of itemized deduction phase-out range (based on AGI) 145,951 145,951 145,951 Beginning/end of personal exemption phase-out range (based on AGI) 145,951/ 268,450 218,951/ 341,450 182,451/ 304,950 * Head of Household Comments Do you plan on selling your home in 2005?  If so, you may wonder whether the profit you make on the sale will be subject to tax.  It may not.  If you qualify, you can exclude up to $250,000 of capital gain ($500,000 for married couples) from your income. Here are some rules of thumb:        The full tax break is available only once every two years.         During the five-year period ending on the date of sale, you must have owned the home for at least two years.  You also must have used it as your principal residence for at least two years.         If you are married and filing jointly, the full $500,000 exclusion is available only if both you and your spouse meet the two-year use requirement and haven’t claimed the exclusion for another sale within the past two years.  The title to the property does not necessarily need to be in joint name.  (Even if you are recently married and your spouse does not qualify, you may still be able to exclude $250,000 if you meet all of the requirements yourself.) Even if you do not meet the two year requirement, you may still qualify for the exclusion under certain “hardship” exceptions.  For instance, if you have to sell your home because you’ve accepted a job in a new location or because of health problems, you may still be able to take advantage of a portion of the $250,000/$500,000 exclusion. We would be happy to discuss any questions you may have regarding the changes to the 2005 tax laws.

Copyright 2008 ~ Drohan Tocchio & Morgan P.C.