Donna A. Lopes v. Ernc Operating, LLC.
23-P-0023
Mass. App. Ct.Feb 1, 2024Background
- Kenneth Jefferson died after suffering a fatal injury at ERNC Operating, LLC's rehabilitation and nursing facility in May 2015.
- Donna Lopes, Jefferson’s sister, filed a wrongful death action as personal representative of his estate, though she was not appointed to this role until more than three years after Jefferson’s death.
- Initially, the estate (not Lopes personally) filed the lawsuit within the statutory period; Lopes subsequently sought and received appointment as personal representative.
- After trial, a jury awarded $500,000 for Jefferson's conscious pain and suffering.
- The trial judge set aside this verdict, ruling Lopes lacked standing due to late appointment, and identified other possible trial errors; judgment was entered for the defendant.
- Lopes appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lopes had standing as personal representative to bring claims | Appointment related back and was without restriction | Late appointment invalid; limited under G. L. c. 190B, § 3-108(4) | Trial judge erred; Lopes' unrestricted appointment stands |
| Sufficiency of evidence for negligence | Evidence supported jury verdict of breach and causation | Evidence insufficient for negligence | Not directly decided; verdict not overturned on this ground |
| Admission of DHHS statement of deficiency | Not prejudicial; adequate evidence without it | Prejudicial error, warrants new trial | Judge erred by not making finding of miscarriage of justice |
| Error in verdict slip (causation) | Instructions as a whole were correct; no harm | Lack of legal causation language misled jury, new trial needed | Error not prejudicial; jury instructions cured slip defect |
Key Cases Cited
- O'Brien v. Pearson, 449 Mass. 377 (standard of review for JNOV is de novo)
- Marco v. Green, 415 Mass. 732 (only duly-appointed estate representatives may bring wrongful death claims)
- Gaudette v. Webb, 362 Mass. 60 (wrongful death statute of limitations principles)
- Hatch v. Proctor, 102 Mass. 351 (relation back doctrine for estate representatives)
- Springfield Terminal Ry. Co., 80 Mass. App. Ct. 22 (verdict slips reviewed with jury instructions for error)
- Wahlstrom v. JPA IV Mgt. Co., 95 Mass. App. Ct. 445 (miscarriage of justice standard for new trial)
- Waitt v. Harvey, 312 Mass. 384 (collateral attack on Probate Court decree not permissible)