 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Zucco v. Kane6/6/2002
164-165 (1990), where the court stated the following, albeit in reference to conduct, which is often more ambiguous than a statement: although " t is well established that an admission by a party may be introduced in evidence against that party[,] . . . or a party's conduct to be admissible as an 'admission,' . . . the conduct which is offered as an admission must, in the normal course of events, be indicative of whether the party against whom it is offered actually so admitted."
An examination of the plaintiff's statements contained in the lump sum agreement, when looked at in the context of workers' compensation law, shows that they are not "indicative" of what the plaintiff "actually admitted." We turn first to the response on the document indicating that no third party action had been brought. In an uncontradicted affidavit (a pretrial motion exhibit), counsel for the employer's workers' compensation insurer stated that she was the one who had prepared the lump sum agreement, and that she had failed to indicate that there was a third party action despite the fact that the insurer knew the plaintiff had a lawsuit pending against Dr. Kane arising out of an incident in October, 1990, and had given notice to his counsel that it was placing a lien on the plaintiff's recovery. In these circumstances, it was not unreasonable for the plaintiff to assume that counsel for the insurer had, perhaps for technical or legal reasons, correctly answered the question on the form as to whether a third party action had been brought.
That the agreement's description of the plaintiff's history and the diagnosis does not mention the trauma the plaintiff attributed to Dr. Kane is also, in the context of the settlement agreement, not indicative of an admission or a lack of veracity. Under workers' compensation law, the consequences -- the alleged RSD -- of the subsequent examination by Dr. Kane requested by the insurer are considered caused by the original April injury and are compensable by the employers' insurer. This is true even if the examination was performed negligently. Luongo's Case, 313 Mass. 440, 442 (1943). See Locke, Workmen's Compensation ยง 223, at 261-262 (2d ed. 1981), and cases cited. See also Retirement Bd. of Brookline v. Contributory Retirement Appeal Bd., 33 Mass. App. Ct. 478, 481-482 (1992). Thus, not only was the agreement drafted by counsel for the insurer, who was aware of the claims against Dr. Kane, but the statements embodied conclusions about liability under the law of workers' compensation, not untutored assessments of cause and effect. Since for purposes of compensation under that law, the RSD was a consequence of the April 4 injury, the introduction of the "admissions" and "inconsistent statements" contained in the settlement agreement were not indicative of what the plaintiff had actually admitted and were not a fair challenge to the plaintiff's credibility.
We reject the defendants' claim that the evidence was not prejudicial, but only cumulative of the other evidence, admitted without objection and not at issue on appeal, concerning the plaintiff's applications for workers' compensation and Social Security disability benefits. The settlement agreement received far more emphasis at trial than the applications and was an exhibit accompanying the jury in their deliberations. In the context of the judge's instructions, if the statements in the agreement had been viewed by the jury as admissions, they would certainly have prejudiced the plaintiff's case.
We also reject the defendants' argument that since the admissions involved the issue of causation, a question not reached by the jury as they found Dr. Kane not to be negligent, the plaintiff was not so prejud
Page 1 2 3 4 5 6 Massachusetts Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|