Massachusetts Lawyer Blog

The U.S. Supreme Court in, Melendez-Diaz v. Massachusetts (PDF), concludes, "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits[.]" Thus, MA defendants and defense attorneys will now be allowed to challenge the prosecutions' evidence prepared for trial by questioning the person who prepared a forensic report or analysis. SCOTUS Blog's analysis of the MA case states,

Expressing a heavy dose of skepticism that crime lab reports are so reliable as to be beyond question, the Supreme Court on Thursday cleared the way for chemists and other scientists who prepare such reports to be summoned to the witness stand in criminal trials to defend their analysis.  The 5-4 ruling in Melendez-Diaz v. Massachusetts (07-591) resulted from some unusual alliances among the Justices, and continued the deep division within the Court over how to interpret the Constitution’s guarantee that an individual on trial for a crime has a right to face and challenge the witnesses for the prosecution.

Justice Antonin Scalia, writing for the majority, found this case to follow the court's precedent expressed in Crawford v. Washington. In laying the framework, Scalia states:

The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Crawford, after reviewing the Clause’s historical underpinnings, we held that it guarantees a defendant’s right to confront those “who ‘bear testimony’” against him. 541 U. S., at 51. A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Id., at 54.

See the SCOTUS Wiki for more on this case.

Technorati Tags: MA, Confrontation, Defense, Supreme Court, Forensic

Law and business clients often ask, "Have we reached the bottom, yet?" The number of bankruptcy inquiries, loan workout requests, short-sale questions, employment termination calls, and divorce consultations our law firm is receiving makes me believe we have not reached the bottom yet.

Local economic statistics referenced in three recent Boston Business Journal's (BBJ) articles make  me further believe that my anecdotal evidence isn't merely anecdotal. The BBJ's, May's home sales near 20-year low, adds,

This report shows that home sales are still slow in Massachusetts. In the late 1990s and into the early part of this century, the state was averaging over 5,000 single-family home sales during the month of May. Last month, we saw fewer than 3,300 home sales, making it the lowest sales pace for the month of May in almost two decades,” said Timothy M. Warren Jr., chief executive officer of The Warren Group, in a statement.

Further, a BBJ article from last week, Mass. foreclosures slipped 59% in May indicates that while foreclosure deeds dropped compared to last year,

...the number of foreclosure petitions filed in May was six times the 390 petitions filed the same month a year ago. Foreclosure petitions mark the start of the foreclosure process in Massachusetts. In addition, the number of foreclosure petitions climbed 15.7 percent from 2,013 in April.

And finally, another BBJ article from last week, Mass. unemployment rate hits 8.2 percent, adds:

Massachusetts’ unemployment rate inched up to 8.2 percent in May, as local employers reported 111,100 fewer workers on their payrolls when compared to the year-earlier period.

No, I'm afraid it appears we have not reached the bottom yet and perhaps we may not for some time...

... we take this opportunity to stress that we have no doubt that self-settled, irrevocable trusts may, if so structured, so insulate trust assets that those assets will be deemed unavailable to the settlor. ... Muriel's trust is a carefully crafted, entirely appropriate estate planning device. But neither the trust's validity nor her good intentions determine the present question. In our view, Muriel's trust, as structured, allows the trustees a degree of discretionary authority that would, if sanctioned, permit Muriel to enjoy her assets, preserve those assets for her heirs, and receive public assistance, to, in effect, "have [her] cake and eat it too." ... Congress has declared a contrary intent, that Medicaid benefits be made available only to those who genuinely lack sufficient resources to provide for themselves. We perceive no reason in this case to deviate from that mandate.

MURIEL DOHERTY vs. DIRECTOR OF THE OFFICE OF MEDICAID, Essex Docket No. 08-P-939.

This case shows the importance of the entire trust document as a whole and the importance of not simply relying on certain provisions or words to protect assets.

Technorati Tags: Medicaid. Trust, Irrevocable trust, Self-settled trust, Distribution, Trustee's discretion

In Coombes v. Florio, 450 Mass. 182 (2007), a physician owed a duty of reasonable care to those foreseeability put at risk by a doctor’s failure to warn the patient of the side effects of the patient's treatment. In Coombes a young boy was struck and killed by a car driven by one taking medications, but who had neither been warned of the medications' side effects, nor been told not to drive while taking these medications. See Massachusetts Bar Association review of Coombes. Thus, liability under Coombes could be extended and include those not having any doctor-patient relationship. A recent case dealing with negligence, duty, and foreseeability sought to expand this holding even further, but it was unsuccessful before the Massachusetts Supreme Judicial Court (SJC).

In Leavitt vs. Brockton Hospital, Inc., Sheila Smith and Karen Sullivan (slip opinion), a pedestrian involved in a car accident had undergone a colonoscopy earlier in the day and was walking home from Brockton Hospital when struck by another vehicle. While heading to the accident's location, a Whitman police cruiser was hit by another vehicle resulting in an officer being seriously and permanently injured. The police officer sued the hospital for negligence claiming they had breached their duty of care, among other things, when they released the previously sedated patient without an escort. The Supreme Judicial Court agreed the case had been properly dismissed by a lower court and upheld that court's decision.

In a footnote, the court noted the different standards for reviewing a motion to dismiss because the standard had changed from the time of the judge's ruling to the time of the SJC's review. Regardless, the court opined this case would have failed under either standard.

After the judge had ruled on the hospital's motion to dismiss, we adopted as applicable to our civil rules the United States Supreme Court's revision of the standard for reviewing the adequacy of a complaint challenged by a motion to dismiss pursuant to Fed. R. Civ. P. 12 (b) (6). See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008), quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 (2007) ("What is required at the pleading stage are factual 'allegations plausibly suggesting [not merely consistent with]' an entitlement to relief . . ."). The hospital does not ask that we apply the new, "stricter" standard. See Flomenbaum v. Commonwealth, 451 Mass. 740, 751 n.12 (2008). The complaint would not survive the hospital's motion to dismiss under either standard.

Technorati Tags: negligence, duty, police, hospital, Coombes

Does your Massachusetts divorce agreement have a provision that addresses disagreements regarding the college selection process or does it tightly define what are reasonable education costs? Perhaps it should. With a number of colleges now above $50,000/year for each child, and the economy where it's at, disputes over education expenses are likely to be on the rise for some time.

What are "reasonable college expenses" and what happens when parents disagree during the college selection process? The answer depends on many factors, holds a MA Appeals Court in Paula A. Mandel vs. Shawn W. Mandel. The court introduced the Mandel case as follows:

In 1996, the parties, Paula Mandel and Shawn Mandel, obligated themselves...to each pay for one-half of their daughters' "college education expenses." The provision contained no further explanation regarding cost or choice of school, although another...provision provided both parents with the right to participate fully in their daughters' activities and with input into educational decisions. A decade later, their older daughter enrolled at a private university costing approximately $34,000 a year. The parties never reached an agreement on payment, and when Shawn refused to pay fifty percent of the cost, Paula initiated contempt proceedings against him. A Probate and Family Court judge eventually found that Paula and the child had selected a school "financially out of reach" for Shawn and ordered him to pay approximately one-quarter of the expenses of the private college. On appeal, Paula claims the judge erred by not requiring Shawn to pay one-half of the expenses actually incurred. Shawn argues that the judge properly limited his obligation to the expenses he would have paid had the child attended a State university.

In Mandel, the court ultimately held that further proceedings, regarding the reasonableness of the college expenses in these circumstances, are required. Some of the specific terms in the Mandel Agreement included,

Both parents shall participate fully in providing access to the child and her activities, and input into educational, medical, behavioral and other significant decisions affecting the child.
...

The Husband and Wife shall each contribute 50% toward each child's college education expenses, including, but not limited to, room, board, tuition, books, fees and other normal educational expenses.

Are reasonable education costs measured using public school costs as the standard, or are they the actual costs at a private school?  Or, is it something different altogether? In addressing these questions, the court reviewed "all relevant equitable factors" which courts have considered in examining the educational needs of the child and the financial circumstances of the parents, including:

• Financial resources of both parents;
• Standard of living the child would have enjoyed if the marriage had not been dissolved;
• Financial resources of the child;
• Cost of the school;
• Programs offered at the school;
• Child's scholastic aptitude;
• How the school meets the child's goals;
• Benefits the child will receive from attending the school;
• Parents' standard of living," which in some cases "includes the ability to provide certain opportunities...such as private school education"; and
• Massachusetts Child Support Guidelines, encouraging "joint parental responsibility for child support in proportion to, or as a percentage of, income."

An additional factor mentioned by the court in its opinion considers the college decision making process,

the extent to which [a party] unjustifiably may have been excluded from the [college] decision-making process.

But it appears timing, or taking some action during the process, is also an important factor,

Conversely, a party who has sat on his or her right to intervene, or to seek approval from the court when the parties disagree, until the college selection process has been completed, may have waived his or her right to object to the college and its concomitant cost.

So at the end of the day, the answer is, "it depends" and thus will require further litigation to answer the question as to what is reasonable under the circumstances. Knowing this analysis could be waiting for you in a divorce, do you prefer to take steps now to lock down these issues in a divorce agreement or leave them open for later interpretation. If later, are there any special considerations you want included in your agreement?

Divorce and education disputes are likely to be on the rise, as the court noted in a footnote,

Disagreement itself is not surprising. "With the explosive growth in the cost of financing a college education, the issue of who will pay those costs after the divorce of the parents is becoming increasingly acute." 2 Kindregan & Inker, Family Law and Practice § 39:50, at 830 (3d ed. 2002). Overall, college tuition and fees have increased 439 percent from 1982 to 2007, adjusted for inflation. National Center for Public Policy and Higher Education, Measuring Up 2008: The National Report Card on Higher Education 8 (2008). The difference between college costs at different types of universities is also significant. According to the National Association of State Universities and Land-Grant Colleges(NASULGC), tuition and fees averaged about $3,200 for community colleges and $33,000 for private research universities in 2006-2007. NASULGC, University Tuition, Consumer Choice and College Affordability: Strategies for Addressing a Higher Education Affordability Challenge 14, 85 (2008).

Technorati Tags: Divorce, Separation, Separation agreement, Child support, Modification, Child support, Education, Reasonable college expenses, Massachusetts, divorce agreement