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Massachusetts Lawyers Weekly headline: Top Jury Verdicts of 2003
Article clipping with photos of Leonard H Kesten and Richard E Brody
Article clipping

Top Jury Verdicts of 2003

No. 9 – 1.79 Million

  • Anderson v. Partners Health Care
  • Suffolk Superior Court, No. 2011-2266
  • Date of verdict: July 7, 2003
  • Plaintiff’s attorneys: Richard E. Brody and Leonard H. Kesten, Boston

Going into trial, attorneys Richard E. Brody and Leonard H. Kesten knew they had a few cards stacked against them in representing their attorney-client after he was struck by a Partners Health Care bus.

Namely, their client had been found to have a significant blood alcohol level after the accident, plus he had returned to work as a competent trial lawyer after the 1998 collision.

Those factors ended up costing the plaintiff nearly half of the verdict in comparative negligence, Brody believes, but he still walked away with $1.79 million — which totaled $2.25 million with interest — after suffering a fractured skull and clavicle bone, broken ribs and short-term amnesia.

“Our position was it doesn’t matter what he had to drink because even if he was lying in the street, you’re not supposed to run over people,” Brody says.

The accident in question dates back to Sept. 2, 1998, when the plaintiff was walking across Staniford Street in Boston and was struck in the back by a Partners Health Care bus. The driver left the scene and failed to report the accident to police for nearly seven hours.

The defense contended both that the plaintiff’s drinking contributed to the accident, and that he had been struck after appearing unexpectedly in front of the driver’s van while outside of a crosswalk area.

However, Brody and Kesten uncovered investigative reports and audiotaped interviews of the driver by the insurance adjusters that contradicted the driver’s trial testimony. In the tapes, the driver admitted that the plaintiff had walked nearly the entire width of the street before he was hit, but at trial the driver insisted that he was closer to the middle of the street — giving the driver less time to see him before the accident.

“I think the jury was struck by that,” Brody says of the audiotapes that were played during trial. “It appeared to us that [the driver] had been coached.”

Brody says the plaintiff’s case was also helped by irrefutable testimony of a neurologist who explained MRIs so thoroughly and accurately to the jury that the defense didn’t even bother calling its own neurologist.

Also, Brody notes that it was sheer “serendipity” that they were able to locate a missing witness who had been on the bus at the time of the accident and wrote her name down to be contacted. By chance, the woman overheard the accident being talked about at a medical clinic and was put in touch with the attorneys.

“It was unbelievably lucky,” Brody says of finding the witness, who the attorneys then used to infer that Massachusetts General Hospital had destroyed her contact information.

The case is on appeal by the defense, and the plaintiffs are lodging Chapter 93A and 176D bad faith claims against the insurer for its failure to make any settlement offers until the first day of trial.

By Jeanne Greeley. Reprinted with permission from Lawyers Weekly, Inc. 41 West Street, Boston, MA 02111. (800) 444-5297 © 2004 #00204vw. From Massachusetts Lawyers Weekly – January 19, 2004.

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