MA doctors can be legally responsible for harm caused by patients

The state Supreme Judicial Court ruled last week that a doctor can be sued over a car accident caused by his patient. It was a reasonable expansion of tort law, held physicians accountable for negligent conduct in prescribing harmful medications without advising of the attendant risks, and will make the streets safer. In its opinion, the court said that the mother of a boy who was hit by a car and died can sue the physician who prescribed numerous medications to the driver, including narcotics that can cause drowsiness. The mother’s lawyers alleged that the physician, Dr. Roland Florio, who practices in Brockton, failed to warn his patient, David Sacca, about the side effects of the medication and the potential danger of driving while taking them. Sacca passed out and drove off the road March 22, 2002, hitting 10-year-old Kevin Coombes, who was standing on the sidewalk with a friend.

Justice Roderick L. Ireland, who wrote the lead opinion, compared a doctor who fails to warn a patient about a drug’s side effects that could endanger others to a bartender who serves a drunk customer. In the opinion for the court, Judge Ireland wrote:

“To recover for negligence, a plaintiff must show ‘the existence of an act or omission in violation of a . . . duty owed to the plaintiff[s] by the defendant.” Cottam v. CVS Pharmacy, 436 Mass. 316, 320 (2002), quoting Dinsky v. Framingham, 386 Mass. 801, 804 (1982). Whether a defendant owes a plaintiff a duty of reasonable care is a question of law that is decided “by reference to existing social values and customs and appropriate social policy.” Cremins v. Clancy, 415 Mass. 289, 292 (1993). “We have recognized that ‘[a]s a general principle of tort law, every actor has a duty to exercise reasonable care to avoid physical harm to others.’ See Remy v. MacDonald, [440 Mass. 675,] 677 [(2004)] . . . . A precondition to this duty is, of course, that the risk of harm to another be recognizable or foreseeable to the actor. . . . Consequently, with some important exceptions, ‘a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’ Tarasoff v. Regents of the Univ. of Cal., [17 Cal. 3d 425,] 434-435 [(1976)].” (Citations omitted.) Jupin v. Kask, 447 Mass. 141, 147 (2006). Although a jury are uniquely qualified to determine the scope of the duty at issue, see Commonwealth v. Angelo Todesca Corp., 446 Mass. 128, 137-138 (2006), “[t]he existence of a legal duty is a question of law appropriate for resolution by summary judgment.” Afarian v. Massachusetts Elec. Co., 449 Mass. 257, 261 (2007). “If no such duty exists, a claim of negligence cannot be brought.” Remy v. MacDonald, supra.

In the context of medical professionals, this court has held that a doctor’s duty of reasonable care, owed to a patient, includes the duty to provide appropriate warnings about side effects when prescribing drugs. Cottam v. CVS Pharmacy, supra at 321. As a result, “[p]hysicians . . . are required to inform their patients of those side effects they determine are necessary and relevant for patients to know in making an informed decision.” Id. When the side effects in question include drowsiness, dizziness, fainting, or other effects that could diminish a patient’s mental capacity, this warning serves to protect the patient from, for example, the foreseeable risk of an automobile accident caused by driving while under the influence of the medication. In the case of automobile accidents, it is clear that the foreseeable risk of injury is not limited to the patient.

In similar cases outside the medical context, when the foreseeable risk in question is the risk of an impaired driver causing an automobile accident, we have extended a duty of reasonable care to all those involved in such a foreseeable accident, including other motorists, bicyclists, and pedestrians. See Michnik-Zilberman v. Gordon’s Liquor, Inc., 390 Mass. 6, 7-8, 10-12 (1983) (liquor store liable for injuries to cyclist struck by automobile driven by minor to whom liquor store had sold beer); Jesionek v. Massachusetts Port Auth., 376 Mass. 101, 106 (197 (jury could have found owner of forklift liable to pedestrian injured when drunken seaman drove forklift over her foot; foreseeable consequence of negligently leaving key in ignition); Adamian v. Three Sons, Inc., 353 Mass. 498, 501 (196 (negligence of bar extended to motorist killed in collision with automobile driven by man who became intoxicated at bar). This is so even when the plaintiff is unknown to the defendant before the accident. See Jupin v. Kask, supra at 149 n.8 (foreseeability of danger to specific person irrelevant; sufficient that general kind of harm was foreseeable); Adamian v. Three Sons, Inc., supra at 500-501 (foreseeable consequence of selling liquor to intoxicated patron was that accident would injure third party, even when identity of third party was unforeseeable).

Relying on those same principles, the court concluded that a physician owes a duty of reasonable care to everyone foreseeably put at risk by his failure to warn of the side effects of his treatment of a patient.

The decision does not mean that the plaintiff in Coombes wins the case. It simply means that a jury will be able to decide whether or not Dr. Florio acted unreasonably in failing to warn his patient of the side effects. And in that respect, it was the right decision. It leaves the decision in the hands of a jury, and reinforces the social purposes of tort law. Indeed, the social purpose of Tort Law is accident and injury prevention. It is only when we fail in our initial purpose that we move to the secondary purpose, compensation for the injured person. Moreover, the decision upholds the notion advanced by John Adams in 1774: “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

Some in the medical profession complain that the decision will raise malpractice insurance rates and drive doctors out of Massachusetts. As shown in previous pieces on this site, these are unsupported myths, and will have little effect on insurance rates (see The Great Medical Malpractice Hoax, Doctors face high rates despite reforms). To the extent the decision makes doctors act more responsibly, the society benefits.

The full text of the court’s opinion can be viewed by clicking here. View the oral arguments before the court by clicking here.

Florida jury returns seatbelt verdict against Ford

In Orlando Florida, a jury returned a verdict against Ford Motor Company for $32.5 million verdict on behalf of the plaintiff, Mark Force, and his family. Mr. Force suffered severe brain injuries in a 1996 car accident when a seat belt failed.

The case involved seatbelt spool out in a 1993 Ford Escort that allowed the Plaintiff to hit his head on the vehicle A-Pillar. Doctors removed 20% of his brain in order to save his life.

Ford put safety devices in the vehicle seatbelt in both Canada and Mexico, but not in the U.S. There were no similar claims or injuries in those countries, but numerous in the United States. Ford internal testing revealed that the retractor had experienced spool out prior to marketing the vehicle to the public.

This was the third trial for Mr. Force whose family filed the negligence suit in 1999. They lost the first trial in 2003, but an appeals court reversed the case because of faulty jury instructions. You can view that decision by clicking here. A second trial ended last year in a hung jury and no decision.

You can read the Orlando Sentinel story on the case by clicking here.

Kmart settles gift card fee case while others continue

In the Federal Trade Commission’s first enforcement action involving gift cards, Kmart Corporation has agreed to settle Federal Trade Commission charges that it engaged in deceptive practices in advertising and selling its Kmart gift card. As part of the settlement, Kmart will implement a refund program and publicize it on its Web site. This is the agency’s first law enforcement action involving gift cards.

“Consumers have a right to know when gift cards come with strings attached,” FTC Chairman Deborah Platt Majoras said. “If fees or restrictions apply, gift card issuers must fully and clearly disclose them.”

According to the FTC’s complaint, Kmart promoted the card as equivalent to cash but failed to disclose that fees are assessed after two years of non-use, and misrepresented that the card would never expire. Kmart has agreed to disclose the fees prominently in future advertising and on the front of the gift card.The FTC’s complaint alleges that since 2003, Kmart did not disclose adequately that after 24 months of non-use, a $2.10 “dormancy fee” would be deducted from the card’s balance for each month of inactivity, resulting in a $50.40 reduction from the card’s value if the card was not used for 24 months.

In many instances, the Commission alleges, consumers did not learn of the fee until they attempted to use their cards.According to the complaint, the Kmart gift card was sold bearing inadequate disclosures that appeared in fine print on the back side and that were phrased in legalese. In some instances the disclosures on the card were wholly concealed before sale, and there were no pre-sale disclosures in online sales.

The FTC’s complaint alleges that since December 2005, Kmart’s Web site stated that the gift cards never expire, even though the dormancy fee caused cards valued at $50.40 or less to expire after two years of inactivity. As of May 1, 2006, Kmart stopped charging a dormancy fee on all Kmart gift cards.

Under the proposed settlement, which is subject to public comment, Kmart Corporation, Kmart Services Corporation, and Kmart Promotions LLC, will not advertise or sell Kmart gift cards without disclosing, clearly and prominently, any expiration date or fees in all advertising and on the front of the gift card. The proposed settlement further requires Kmart to disclose, clearly and prominently, all material terms and conditions of any expiration date or fee at the point of sale and before purchase. It bars Kmart from misrepresenting any material term or condition of the gift cards, and prohibits Kmart from collecting dormancy fees on any gift card sold before the proposed order is issued.

The proposed settlement requires Kmart to reimburse the dormancy fees for consumers who provide an affected gift card’s number, a mailing address, and a telephone number. Kmart will publicize the refund program on its Web site, including a toll-free number, e-mail address, and a postal address for eligible consumers to contact Kmart to seek a refund.The FTC has established a Consumer Hotline at (202) 326-3569 for consumers who have questions about the refund program. The Hotline will be updated as necessary.

 In its press release, the FTC acknowledged the invaluable assistance of the Montgomery County, Maryland, Division of Consumer Affairs.  Its 2006 annual report on gift cards is available by clicking here.

The Commission vote to accept the proposed consent agreement was 5-0, with Commissioners Pamela Jones Harbour and Jon Leibowitz issuing a separate statement concurring in part and dissenting in part. In their statement, Commissioners Harbour and Leibowitz said they concur in the decision to bring an action against Kmart, but dissent in part from the proposed consent agreement because they believe the remedy should include disgorgement of ill-gotten profits: “Otherwise, Kmart will remain unjustly enriched by a substantial amount of buried ‘dormancy fees’ while many consumers will have lost the chance for reimbursement because they long ago threw out their seemingly worthless gift cards in frustration.”

The FTC will publish an announcement regarding the agreement in the Federal Register shortly. The agreement will be subject to public comment for 30 days, beginning today and continuing through April 10, after which the Commission will decide whether to make it final. Comments should be addressed to the FTC, Office of the Secretary, Room H- 135, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. The FTC requests that any comment filed in paper form near the end of the public comment period be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions.

Copies of the complaint, proposed consent agreement, and an analysis of the agreement to aid in public comment are available from the FTC’s Web site and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580.  You can also view them by clicking here.

In November 2004, Massachusetts filed suit against a chain of shopping malls on similar claims involving gift cards. The then Massachusetts Attorney General Tom Reilly charged Simon Malls with selling gift cards that violate state consumer protection laws.  “These ‘gift cards’ are riddled with additional charges that Massachusetts consumers should not have to pay,” Reilly said. “Despite the name, these gift cards are not what they seem.”  The case is still pending in the Suffolk Superior Court (docket number SUCV2004-04993-BLS).

Meanwhile, the Massachusetts legislature is trying to rein in bank-issued gift cards by outlawing the fees the cards depend on for a profit.  The Boston Globe highlighted the bill in an April 2006 article.  The text of the bill can be viewed by clicking here.

Last August, a federal judge ruled that New Hampshire could not impose state laws restricting gift-card fees on Simon’s gift cards, because the bank-issued cards are governed by federal banking laws that supersede state laws.  You can view an article on that case by clicking here.

Free speech tested at Alaska high school

The United States Supreme Court will rule on the free speech rights of public school students by July. The controversy arises out of a prank which tests the limits of free speech in America’s high schools. Not since Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), has the Court had occasion to provide guidance to public schools — and to parents and students — with respect to the delicate balance between students’ constitutional rights, on the one hand, and the solemn duty of school administrators, on the other, to maintain order and instill fundamental values in the challenging context of public education.

On a snowy, January afternoon five years ago when the Olympic Torch Relay was passing through Juneau, Alaska on its way to the 2002 Salt Lake City Winter Games, a high school student, Joseph Frederick, had a plan to get his 15 minutes of fame. The event had attracted a fair amount of press coverage and television crews were out in full force filming the energetic crowd. Frederick and his friends, knowing there would be cameras there, had planned a prank to cause a stir.

That afternoon, Frederick showed up across the street from the school and stood with his friends who were waiting to see the Olympic torch. When television cameras panned by the group, Frederick unfurled a banner that read “Bong Hits 4 Jesus.” JDHS principal, Deborah Morse, quickly crossed the street and ordered Frederick to take down the banner. He refused and she took the banner away and informed Frederick that he would be suspended for 10 days.

Frederick appealed his suspension to the superintendent of the school district. Appeals court documents said that Frederick claimed that the banner had been “designed to be meaningless and funny in order to get on television.” However, the superintendent upheld the punishment, stating that the sign conflicted with the mission of the school and had created a disruption. Frederick appealed to the school board, but on March 19, 2002, the board upheld the punishment.

On April 25, 2002, Frederick filed a lawsuit against Morse and the school board in U.S. District Court for the District of Alaska claiming that his First Amendment right to free speech had been violated. His case also emphasized the fact that he was off school property and thus not subject to school rules. The federal court ruled in favor of the school district finding that it had acted within its rights when it disciplined Frederick for violating the school’s policy on offensive material.

Frederick appealed the case and on March 10, 2006, the 9th U.S. Circuit Court of Appeals reversed the decision of the lower court. The panel of three judges ruled that the school had violated Frederick’s free speech rights by “censor[ing] non-disruptive, off-campus speech.” They also ruled that Morse was not immune from incurring damages in the case.

The case was appealed to the United States Supreme Court, and the arguments were made on March 19, 2007, with a decision expected by July. The issues before the court were:

1. Whether the First Amendment allows public schools to prohibit students from displaying messages promoting the use of illegal substances at school-sponsored, faculty-supervised events.
2. Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public high school principal was liable in a damages lawsuit under 42 U.S.C. § 1983 when, pursuant to the school district’s policy against displaying messages promoting illegal substances, she disciplined a student for displaying a large banner with a slang marijuana reference at a school-sponsored, faculty-supervised event.

“I thought we wanted our schools to teach something, including something besides just basic elements, including the character formation and not to use drugs,” Chief Justice Roberts said Monday during the argument.

Justice Samuel Alito, who wrote several opinions in favor of student speech rights while a federal appeals court judge, seemed more concerned by the administration’s broad argument in favor of schools than did his fellow conservatives. “I find that a very, a very disturbing argument,” Alito told Justice Department lawyer Edwin Kneedler, “because schools have … defined their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that’s inconsistent with educational missions.”

Justice Stephen Breyer, in the court’s liberal wing, said he was troubled a ruling in favor of Frederick, even if he was making a joke, would make it harder to principals to run their schools. “We’ll suddenly see people testing limits all over the place in the high schools,” Breyer said. On the other hand, he said, a decision favorable to the schools “may really limit people’s rights on free speech. That’s what I’m struggling with.”

The National School Board Association (NSBA) filed an amicus brief submitted in support of the school district, which argued that the student’s speech was nonpolitical and properly regulated within the U.S. Supreme Court trilogy of student speech cases. The school district’s response to the ruling, posted on its website criticizes the decision for leaving school administrators with no clear guidance on various issues and, especially, for the court’s “disturbing… determination that Principal Morse is not entitled to qualified immunity from an award of damages.” Noting that the U.S. District Court had concluded that Ms. Morse “was not only entitled to discipline Frederick for his display of the banner, but that she may have been obligated to do so,” the statement says, “we don’t understand how the Ninth Circuit could conclude that a high school principal should have known that it wasn’t.”

The American Civil Liberties Union (ACLU) has a full page of reference materials on the case, including copies of all of the briefs filed. The Juneau, Alaska school district’s web-site also contains updated information on the case.

Court Upholds $7.4M Verdict Against Veteran’s Administration

The United States District Court for the Third Circuit held on Wednesday that the Department of Veterans Affairs (VA) committed gross negligence by discharging a mentally ill Vietnam veteran from a residential housing facility—just hours before he committed four murders and took his own life.

Alejandro DeJesus, a homeless Navy veteran, suffered from a mental illness which caused him to have violent outbursts when “frustrated or unemployed.” DeJesus had a history of domestic violence during such outbursts, and had once attempted to commit suicide. After entering a residential program for homeless, unemployed veterans, DeJesus was assigned to an unlicensed nurse who failed to disclose his history of violence and mental illness to another facility from which the VA ultimately recommended his discharge. Within a day of being discharged, DeJesus killed two of his children and two neighboring children, before taking his own life.

In an opinion by Judge D. Michael Fisher, the court applied a Pennsylvania law requiring mental health institutions to avoid grossly negligent treatment of their patients. Judge Fisher’s opinion held that the VA committed a “gross deviation from the required standard of care,” and upheld a $7.4 million jury award.

Supreme Court throws out punitive damage award

Splitting 5-4, the U.S. Supreme Court on Tuesday threw out a nearly $80 million punitive damages ruling against Philip Morris. In this state negligence and deceit lawsuit, a jury found that Jesse Williams’ death was caused by smoking and that petitioner Philip Morris, which manufactured the cigarettes he favored, knowingly and falsely led him to believe that smoking was safe. In respect to deceit, it awarded $821,000 in compensatory damages and $79.5 million in punitive damages to respondent, the personal representative of Williams’ estate. The trial court reduced the latter award, but it was restored by the Oregon Court of Appeals. The State Supreme Court rejected Philip Morris’ arguments that the trial court should have instructed the jury that it could not punish Philip Morris for injury to persons not before the court, and that the roughly 100-to-1 ratio the $79.5 million award bore to the compensatory damages amount indicated a “grossly excessive” punitive award.

The case, Philip Morris USA v. Williams, tested the power of juries to impose large punitive awards against tobacco and other well-heeled corporations in product-liability cases.

In their ruling, the justices decided to follow recent precedent that punitive damages should, in most cases, match “actual” damages. The Supreme Court ruled that a punitive damages award based in part on a jury’s desire to punish a defendant for harming nonparties amounts to a taking of property from the defendant without due process. It also ruled that because the Oregon Supreme Court’s application of the correct standard may lead to a new trial, or a change in the level of the punitive damages award, this Court will not consider the question whether the award is constitutionally “grossly excessive.”

In a dissenting opinion, several of the Justices took issue with the Court’s ruling, stating:

The purpose of punitive damages, it can hardly be denied, is not to compensate, but to punish. Punish for what? Not for harm actually caused “strangers to the litigation,” ante, at 5, the Court states, but for the reprehensibility of defendant’s conduct, ante, at 7–8. “[C]onduct that risks harm to many,” the Court observes, “is likely more reprehensible than conduct that risks harm to only a few.” Ante, at 9. The Court thus conveys that, when punitive damages are at issue, a jury is properly instructed to consider the extent of harm suffered by others as a measure of reprehensibility, but not to mete out punishment for injuries in fact sustained by nonparties. Ante, at 7–9. The Oregon courts did not rule otherwise. They have endeavored to follow our decisions, most recently in BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996) , and State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003) , and have “deprive[d] [no jury] of proper legal guidance,” ante, at 7. Vacation of the Oregon Supreme Court’s judgment, I am convinced, is unwarranted.

You can view the full text of the Supreme Court’s opinion by clicking here.

Legal catch-22 thwarts legitimate claim

If you’re one who thinks there are too many frivolous suits, then consider this case. Jack Cline, a resident of Alabama, sued for exposure to benzene that allegedly caused him to be stricken by leukemia. According to Alabama law, if he sued when he was first exposed to benzene then it would have been too early, but now that he developed leukemia years later it is too late to sue. This legal Catch-22 is one of many protections big businesses have against legitimate lawsuits.

As the New York Times reported, “In a ruling that would have done Kafka proud, the court held that there was never a valid time for Mr. Cline to sue. If he had sued when he was exposed to the benzene, it would have been too early.” Alabama law requires people exposed to dangerous chemicals to wait until a “manifest” injury develops. But when his leukemia developed years later, it was too late. Alabama’s statute of limitations requires that suits be brought within two years of exposure.

The court ruled this month. It affirmed the dismissal of Mr. Cline’s case by a 5-to-4 vote. If Mr. Cline wanted to challenge the unfairness of the rules, it said, he would have to take it up with the State Legislature.

The case is known as Jack Cline v. Ashland, Inc., et al., No. 1041076, Ala. Sup.; 2007 Ala. LEXIS 5.

Early detective work pays off for client

In a case involving a fall in a supermarket, good early detective work made the difference between an ongoing battle over liability, and the quick assumption of responsibility. One afternoon, one of our clients, a spry 84 year old woman, was shopping at her neighborhood supermarket. She had just finished shopping and went to the courtesy desk where a cab company was called to come and pick her up. After that, she stood by the front window inside the store and waited for the cab. As she was waiting for the cab in the store, her attention was drawn to a display hanging on the wall to the left of the doorway concerning the history of the store. She walked over to read the information contained in the display, and while reading it she was struck and thrown by an automatic swinging door which was to her right as she was reading. The incident was captured by the supermarket’s surveillance camera.

Our office filed suit six days after the accident and moved quickly to secure the videotape of the incident. By moving so quickly, we were able to preserve the tape which is normally destroyed after two weeks. As you can see from the clips from the video, the incident clearly occurred in the manner described by our client. By having this tape, we were able to blunt the typical suggestions that our was confused, not where she said, or had tripped because she was old. The tape also enabled us to bring the matter to a resolution within 10 months of the incident. The defendant supermarket quickly admitted that the location of the sign was dangerous and invited people to stand there. In addition, they admitted that the door was not properly functioning at the time and should not have opened with someone standing ints path.

The result was positive proof that some early detective work and preservation of evidence can be a tremendous aid in the resolution of cases.

FBI liable for murder by informants

A federal judge found that the FBI’s mishandling of longtime informants James “Whitey” Bulger and Stephen “The Rifleman” Flemmi caused the 1984 murder of Quincy fisherman John McIntyre and ordered the government to pay more than $3 million to McIntyre’s mother and brother. US District Judge Reginald C. Lindsay, who presided over an 18-day bench trial in June, ruled that former FBI agent John J. Connolly Jr. warned Bulger and Flemmi that McIntyre was cooperating against them, knowing the tip would likely lead to McIntyre’s murder.

McIntyre, 32, was lured to a South Boston home, chained to a chair, grilled for hours, choked, and shot to death, according to Flemmi. His remains weren’t discovered until January 2000.

In a 110-page decision, Lindsay found that the FBI failed to properly supervise Connolly and failed to investigate numerous allegations that Bulger and Flemmi were involved in drug trafficking, murder, and other crimes over decades.

The judge ordered the government to pay $3 million to McIntyre’s mother for the conscious suffering he endured before his brutal slaying, $100,000 for the loss of her son’s company, and $1,876 for funeral and burial costs.

The court decision offers a unique look into the Massachusetts Wrongful Death statute and compensation laws in general. As the court noted, the purpose of the statute is to compensate survivors for the loss of the decedent’s life. It also allows recovery for the loss to the person entitled to recover of the services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent (otherwise known as “loss of consortium” damages). The court grappled with the difficulty in quantifying these consortium type damages:

Such damages, however, are notoriously difficult to quantify. Havinga v. Crowley Towing and Transp. Co., 24 F.3d 1480, 1484 (1st Cir. 1994). There is, after all, no scientific formula or measuring device that can be applied to place an exact dollar value on noneconomic damages . . . . Muniz v. Rovira, 373 F.3d 1, 8 (1st Cir. 2004). Nevertheless, the amount awarded must be the product of a process of rational appraisal and based upon the evidence adduced at trial. Ruiz v. González Caraballo, 929 F.2d 31, 35 (1st Cir. 1991).

The court also addressed compensation for the decedent’s conscious suffering, another element of recovery under the death statute. Here the court had to consider and quantify rather gruesome evidence about how McIntyre suffered in the time just before he died. The analysis provided by the court highlights the difficulties juries face daily in awarding damages for human suffering:

The evidence of both McIntyre’s consciousness and his suffering is ample. For a period of about one to two minutes, Bulger, an accomplished murderer and a pretty powerful person, as Flemmi put it, tried to strangle McIntyre. In the abstract, one to two minutes is not a long time. But consider the annoyance of some motorists at an overlong traffic light, when all they have to do is wait for a period of seconds. McIntyre was not simply waiting; he was being murdered. He was handcuffed, his body encircled with chains. The rope around his neck – the first instrument applied to the task of accomplishing the murder – undoubtedly caused extreme pain and constricted his breathing. Then there was the pain of the handcuffs, which, by that point, had bound him for five or six hours. Applying common sense and logic to the facts of record, I find that after the attempted strangulation began, McIntyre likely was in extreme pain throughout his body. It is reasonable to infer, and I do infer, that when McIntyre did not die right away, Bulger increased the pressure on the rope, thereby increasing the agony experienced by McIntyre. McIntyre vomited and audibly gasped for air, making gagging and gurgling sounds. And McIntyre suffered more than physical pain. If, as Flemmi testified, McIntyre suffered mental anguish even before any attempt was made to kill him, the anguish he experienced as the attempt began and progressed must have intensified dramatically. He was terrified; he knew his tormentors intended, and would likely succeed in accomplishing, his murder. He had been an informant, and he would pay the price typically paid by revealed informants. He knew that there would be no time for goodbyes to his loved ones or for putting his affairs in order; for he would not leave that basement alive. It is difficult to imagine a more distressing set of circumstances - physically and mentally - than those encountered by McIntyre during the minutes preceding his death in the basement of 799 East Third Street on November 30, 1984. It was, as Emily McIntyre said, torture. See Emily McIntyre June 16, 2006 Tr. at 79. I infer that, for McIntyre, the one to two minutes of physical and mental pain were an eternity. It is not surprising, therefore, that when Bulger offered him the opportunity of a swifter death by a gunshot to the head, McIntyre pleaded for that gruesome, but quick relief from his suffering. It is his “yes, please” that is the most certain evidence of his conscious suffering.

On this evidence, the court found that a reasonable award was $3 million.

To view the entire decision, click here.