News

Attorney Alison Denham Appointed to Merit Selection Panel

Congratulations to Alison Denham on her appointment to the Merit Selection Panel regarding the reappointment of United States Magistrate Judge John H. Rich III for the District of Maine.  

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Retrial produces second jury verdict for defendant landlord

Martica Douglas and Madeline Malisa recently won a jury verdict for the defendant in a lead poisoning case.  The firm’s client was a landlord who was sued by former tenants claiming that  their three children had suffered neurocognitive damage caused by exposure to lead paint in the rental property– a single family house built in the late 1800s and located in the small town of Solon, Maine.   One of the children had been found to have an elevated blood level, high enough to trigger an environmental inspection by the state lead inspector, who found “lead hazards” in the form of deteriorated paint in the house and ordered an abatement.   Expert testimony regarding proximate cause was introduced by both sides.  The defense argued that there was no way to identify lead as a substantial cause of the children’s developmental delays and behavioral problems given 1) the many factors influencing child development; 2) the relatively modest blood lead levels detected in plaintiffs’ children; and 3) the fact that many children exhibit developmental-behavioral issues who have not been exposed to lead. The jury found that Mr. McDonough was not negligent, presumably because the evidence showed that the paint in rental property was in good shape when the plaintiffs took possession.  This meant that the deteriorated state of the paint had occurred as a result of the tenants’ own wear and tear.  The state lead inspector testified that all old houses in Maine contain lead paint, as it was not taken off the market until 1978 and that lead paint is not hazardous if it’s in good condition or coated with latex.  This house contained no more lead paint than the houses most Mainers were raised in.  The jury understood this- undoubtedly, many jurors had grown up in houses containing lead paint.  The jury also rejected Plaintiffs’ claims for intentional infliction of emotional distress and punitive damages.    Interestingly, this is the second time this case was tried to a jury.  The first trial also resulted in a verdict for the defense.  The plaintiffs appealed, and the Maine Law Court granted the appeal based on limitations the trial judge had placed on the scope of expert opinion...

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Elizabeth Ernst honored by the Maine Supreme Court

Attorney Liz Ernst was recently honored by the Maine Supreme Court with Katahdin Counsel Recognition for completing over 50 pro bono service hours. She and many other generous Maine lawyers donated their time and demonstrated their commitment to justice for Maine’s underprivileged residents.  Liz received the award for her legal work related to the field of adoptions. Congratulations, Liz!

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Business & Consumer Court grants two summary judgment motions filed by Attorney Christine Kennedy-Jensen on behalf of a national leisure tour company

By order dated March 13, 2014, Business & Consumer Court Justice A.M. Horton granted two Cross-Motions for Summary Judgment filed by Attorney Christine Kennedy-Jensen on behalf of her client, a national leisure tour company. The plaintiffs in both cases booked family vacations through a local travel agency in Maine. The travel agency was run and operated by a solo travel agent, who was also named as a defendant in both lawsuits. When the plaintiffs booked their trips to Punta Cana, the travel agent told them that they could save money if they paid by check instead of paying by credit card. In September 2011, both plaintiffs paid the travel agent substantial sums of money by check for airfare and accommodations. The trip was scheduled to begin in June 2012. The travel agent used some of the funds that the plaintiffs had paid by check to pay for their airfare. However, she paid the national leisure tour company for the plaintiffs’ accommodations by charging credit cards of other travel agency clients, without those clients’ knowledge or consent. On June 1, 2012, the national leisure tour company was contacted by clients of the travel agency whose credit cards had been improperly charged by their travel agent. The tour company reversed what it determined to be fraudulent charges and cancelled the plaintiffs’ reservations for the accommodations. Meanwhile, rumors began circulating in the plaintiffs’ community about the travel agency and the travel agent being raided by the FBI. The plaintiffs attempted to ascertain the status of their reservations. They eventually learned that their reservations had been cancelled for non-payment. The tour company agreed to assist the plaintiffs in rebooking their hotel accommodations if the plaintiffs paid it directly and signed a release discharging any claims against them. The tour company then negotiated the rebooking at the same rate the plaintiffs were originally charged. The plaintiffs were able to take their vacation as planned. The Court concluded that the travel agency, acting through the travel agent, was acting as an agent of the plaintiffs and not as an agent of the tour company when she collected funds paid to the travel agency by the plaintiffs. The Court further concluded that the releases signed by the plaintiffs were enforceable and barred their claims. The Court found that their claim of economic duress failed because the tour company was not responsible for the diversion of the funds and the plaintiffs did not show that they had no alternative besides rebooking their hotel accommodations through the tour company. Finally, the Court held that the plaintiffs failed to make a prima facie case showing that the tour company engaged in any unfair trade practice or misleading conduct that caused a loss to the plaintiffs. The Court granted summary judgment on all counts in favor of the tour company. The travel agent and her agency remain in the...

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Maine Superior Court grants summary judgment motion filed by Attorney Madeline Malisa on behalf of Maine Ford dealership

By order dated March 18, 2014, Maine Superior Court Justice Michaela Murphy granted a Motion for Summary Judgment filed by Attorney Madeline Malisa on behalf of Bailey Brothers, Inc., a Ford dealership in Livermore Falls, Maine thereby ending a lawsuit filed by the Town of Winthrop.  The Town’s suit arose out of the fire loss of a 2012 Ford 550 truck. The Town had purchased a cab and chassis from Bailey Brothers to be converted into a snowplow by H.P. Fairfield. The new truck underwent and passed a road test and state inspection at Bailey Brothers, Inc. Subsequently, H.P. Fairfield employees spent two months and 166 hours converting the truck into a snowplow and road maintenance vehicle. The parts and labor included extensive mechanical, electrical, and hydraulic alterations, for a total cost of $41,980.00.  During the course of H.P. Fairfield’s work, several problems arose and the truck engine wouldn’t stay running. H.P. Fairfield sent the truck to Hight Ford, a more local dealership, for repair. Shortly thereafter, during the truck’s “maiden voyage” as a snowplow, a fire started in the engine and engulfed the truck in flames. The Town sued H.P. Fairfield, Hight Ford and Bailey Brothers, Inc. H.P. Fairfield and Hight Ford each paid $19,000 to the Town under a settlement agreement. Bailey Brothers, Inc. filed for summary judgment and argued that there was no evidence that the fire had been caused by a defect in the truck or its components that existed at the time of sale. Justice Murphy agreed and denied all the Town’s claims against Bailey Brothers, Inc. on the ground that the Town could not “establish any causal link between the alleged defects at the time of the sale of the truck… and the fire that destroyed the truck.” ThePlaintiff’s expert witness could not determine what caused the fire to any degree of scientific certainty. See : Ruling ends lawsuit over Winthrop’s burned plow truck (Morning Sentinel, March 19,...

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Martica Douglas and Deb Buccina Invited into the American Board of Trial Advocates, “ABOTA”

(September, 2013) ABOTA is a national association of experienced trial lawyers and judges dedicated to the preservation and promotion of civil jury trial rights as well as professionalism and upholding ethics. In Maine, there is only a small group of attorneys who have been invited into this society. Qualification requirements are rigorous and invitees must be approved before membership is offered. Martica Douglas and Deb Buccina Have Been Winning Jury Trials Last March Martica represented the driver of a vehicle involved in a fatal motorcycle crash. The deceased biker skidded out of control coming around a sharp curve in the road.  A biker who had been following the deceased got caught up in the accident as it was unfolding.  He sustained multiple serious injuries and as a result was living in pain and was permanently disabled from work. He brought suit against the Estate of the deceased biker and Martica’s client, who was coming around the curve in the opposite direction.  The plaintiff’s lawyer alleged that Martica’s client was on the yellow line as he came around the curve, and was therefore at least 1% at fault.   The Oxford county jury awarded $1.8 million to the injured biker, but found that liability rested entirely with the deceased biker.  Martica’s client was found to be free of fault. More recently, in September, Martica represented an automobile insurer against a claim for uninsured motorist benefits.  The plaintiff contended that he had been struck by a uninsured operator, and that the impact caused him to strike his head against the driver’s window.  He claimed ongoing headache and balance problems.  Plaintiff’s expert neurologist testified that these problems were caused by the trauma sustained in the accident and in all likelihood would continue to plague him throughout his life    The damage to Plaintiff’s car was minimal.  Martica argued that Plaintiff was not injured in the accident.  The York County jury agreed, returning a verdict for the insurer. In October, Deb tried a case to jury conclusion in which she represented the driver of a vehicle in which the Plaintiff was a back seat passenger.  Deb’s client was pulling out of a street-side parking spot when a second vehicle, traveling down the street, collided with the vehicle in which the Plaintiff was seated.  The jury took only twenty minutes to return a defense verdict in favor of the drivers. Martica also won a recent victory in the Maine Law Court.  In Langevin v. Allstate, the Court ruled that the defendant homeowners’ insurer (Martica’s client) did not have to defend its former insureds in an action filed against them by the buyers of their residence, who claimed that the insureds negligently failed to disclose the property’s prior use as an auto junkyard.  The court’s decision held: Damages for loss of investment do not constitute “property damage”; Physical problems with property did not result from occurrence alleged in complaint; and Policy’s definition of “bodily injury” did not include emotional distress. See Langevin v. Allstate Ins. Co.,  66 A.3d...

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Martica Douglas – ‘Make decisions consistent with principles and values’

(Article from “Maine Women Magazine”, February 21, 2013) Martica Douglas has been practicing law, primarily as a trial attorney, since 1977. Back then, she was the only woman in the Portland firm, Hewes and Culley. Since the beginning, her practice has included a broad base of personal injury, toxic exposure, professional malpractice, and insurance coverage cases. She also offers her services as a mediator in divorce cases. Read The Article...

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Defense Verdict in Lead Poisoning Case

On March 27, 2012, after a seven-day trial at the Androscoggin County Superior Court in Auburn, a jury of five women and four men returned a verdict finding that a Lewiston landlord was not responsible for a young boy’s lead poisoning. Martica Douglas represented the landlord, a family-held corporation that owns multiple rental properties in the Lewiston-Auburn area. The Plaintiff alleged that his son had suffered serious irreversible brain damage as a toddler living in one of the Defendant landlord’s apartments as a result of exposure to lead paint. The Plaintiff’s attorney called five expert witnesses to testify regarding both liability and damages issues, including two treating physicians, a toxicologist, a life care planner who proposed the need for intensive lifetime care and supervision, and an economist. In addition, the boy’s teachers and special Ed aide testified that he required continual assistance to maintain focus and minimize disruptive outbursts. Plaintiff’s counsel asked the jury for an award of 14 million dollars. Martica presented evidence to show that her client kept its apartments in good condition; that this particular apartment complied with local building codes and had been inspected annually by the Lewiston Housing Authority, whose inspections included a lead hazard assessment in every room; that 90% of the buildings in Lewiston contain lead paint; and that the child was likely to have been exposed to lead at his grandmother’s apartment, where he spent time; and/or by exposure to imported pottery and toys, as the parents and grandmother had emigrated from Morocco and the medical records documented that as a toddler the boy was known to “put everything in his mouth.” Because of the Jury’s acceptance of the defense put forth by Martica, no money was awarded to the plaintiff. The landlord was exonerated....

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Superior Court upholds Allstate’s denial of coverage re: alleged conspiracy to enable sexual assault

Superior Court upholds Allstate’s denial of coverage re: alleged conspiracy to enable sexual assault Martica Douglas has been representing Allstate Insurance Company in a declaratory judgment action initiated by the named insured on an Allstate homeowners’ policy seeking to compel Allstate to defend her in an action filed by her sister. The sister’s complaint alleged that the insured conspired with her boyfriend to enable him to sexually assault her while the sister was a guest at the insured’s home; and that a violent and brutal assault took place when the insured left them alone in the house. The sister suffered significant injuries, and was awarded over $5 million in damages in a civil suit against the boyfriend. Allstate declined to defend the insured in the action on the ground that a “conspiracy” was not an “accident” and therefore not a covered “occurrence;” and on the further ground that the homeowners policy does not cover an insured’s liability for injuries resulting from intentional conduct that should reasonably be expected to cause injury. On May 3, 2013, the Superior Court issued a 9-page Decision and Order affirming Allstate’s position that it had no duty to defend or indemnify the insured. Of particular interest is the Court’s determination that the insured’s alleged negligent infliction of emotional distress (NIED) did not generate a duty to defend because emotional distress did not qualify as a “bodily injury,” which the policy defined as physical harm to the body. The Court also noted that under current Maine law, in the absence of a custodial or fiduciary relationship, an individual does not owe a duty to control the conduct of prevent one person to prevent harm to another —therefore, the complaint did not allege a liability that triggered a duty to defend....

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Christine Kennedy-Jensen honored by Maine Supreme Court

Attorney Christine Kennedy-Jensen was recently honored by the Maine Supreme Court for her participation in the Katahdin Counsel Recognition Program. The program is designed to both honor Maine’s lawyers who provide pro bono representation, and to help meet the need for civil legal representation by increasing the number of attorneys who voluntarily provide pro bono representation. Christine assisted her clients in a variety of family law matters and completed over 50 pro bono service hours in 2012. She and many other generous Maine lawyers donated their time and demonstrated their commitment to justice for Maine’s low-income residents. Congratulations,...

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