Elder Justice Prosecutor Samples

Alleges breaches of care and malpractice

1. Agreed Upon Facts as Exhibit at Trial; 2. Statement by Parties of what they expect Evidence to show; Agreed Description of Case to be read to Jury During Empanelment; 4. Statement of Significant Legal Issues; 5. Witness Names and Addresses; 6. Expert Witness Disclosure; 7. Estimated Length of Trial 5 Days; 8. Itemization of Special Damages; 9. Certification by Counsel regarding settlement discussion

Affirmative Defenses: First - No Superior Right to Possession; Second - Equity; Third - Relief from Forfeiture; Fourth - Equitable Estoppel and/or Waiver; Fifth - Lack of Standing. Counterclaims: First - Negligent Infliction of Emotional Distress; Second - Unfair or Deceptive Acts in Violation of Massachusetts Consumer Protection Act

Recommends Court grant motion for partial summary judgment and dismiss wrongful death damages because death was not consequence of alleged negligence (2013)

Argues Court must affirm convictions because: conviction of two counts was proper; each act was not necessary to completion of the other

Argues Court must reverse judgment because: new review standard does not apply retroactively; complainant testimony is not credible; jury is not given required instruction

Argues Court must reverse judgment and overrule award because: material facts were in dispute; complaint was dismissed with prejudice and without hearing; judge denied plaintiff's motion to strike affidavit based on hearsay or opinion; judge granted defendant's motion to strike plaintiff's papers showing disputed material facts

Argues Court must affirm jury verdict and bench trial decision because: trail court instructed jury properly; trial court found no intent to defraud; trail court failed to impose constructive trust; trail court precluded impeachment; trial court dismissed elder abuse claim

Argues Court must reverse decrees and remand because: probate court lacks jurisdiction; evidence supports lack of testamentary capacity, undue influence and elder abuse

Argues Court must affirm decision because: agent's authority is exclusively health care; arbitration provisions signed by agent require authorization; agent cannot waive patient's right to jury trial

Argues Court must affirm decree because: court did not err refusing to order independent examination; court did not err failing to hold guardian hearing; court did not err dismissing guardianship action; court did not err relying on attorneys' and cardiologist's evidence; court did not err discrediting expert's affidavit

Requests Court deny motion because: testimony supported allegations; there were no evidence presentation violations

Argues Court must affirm order because: plaintiff failed to oppose defendant's motion to dismiss; plaintiff appealed an unopposed motion

Argues Court must reverse guardianship decree and declaratory judgment because issues of material fact remain un-adjudicated, overlooked or pending

Alleges: Count I - Breach of Fiduciary Duty; Count II - Breach of Confidential Duty; Count III - Misrepresentation; Count IV - Deceit; Count V - Undue Influence; Count VI - Breach of Contract; Count VII - Rescission; Count VIII - Intentional Infliction of Emotional Distress; Count IX - Negligent Infliction of Emotional Distress; Count X - Accounting; Count XI - Unjust Enrichment; Count XII - Declaratory Judgment; Count XIII - Injunctive Relief

Argues Court must affirm judgment because: claims are based on petitioning activities; petition has factual support; anti-Strategic Lawsuit Against Public Participation applies

Argues Court must reject theory of criminal collective knowledge/intent because: applicable doctrine is not in dispute; proof of bad purpose is required; proposed aggregation doctrine requires prospective application

Argues Court must decline to adopt theory of criminal liability because: theory shifts existing law; existing regulations are component of health care providers' operations; theory does not benefit patients; theory warrants legislative review

Argues Court must answer reported questions in the affirmative because: nursing homes must be accountable for abusive or negligent care; collective knowledge theories hold corporations accountable

Argues Court must vacate judgment and remand because: issues of material fact must not be dismissed; application of frauds statute was unlawful

Argues Court must affirm decision because: plaintiff was not entitled to relief; court properly dismissed claim under Civil Rights Act; defendants did not violate public health law or due process; defendants did not violate privacy statute; court properly dismissed common law claims; town officials had qualified immunity

Argues Court must affirm judgment because: expert witnesses' testimonies were admitted properly; defendant's motion was denied properly prior to trial; plaintiff's motion was granted properly during trial; contracts were rescinded properly; due process was not violated; plaintiff's counsel did not engage in misconduct; court denied motions to compel discovery properly; court awarded costs to plaintiffs correctly; court excluded defendant's witnesses properly

Requests Court reverse decision because: regulations are vague; there are errors of law; defendant fails to provide findings of fact; there are procedural irregularities; dispositive evidence is disregarded

Argues Court must reverse judgment on constructive trust and fraudulent transfer issues or, in the alternative, affirm judgment on contract and remand on constructive trust, fraudulent transfer and elder abuse claims because: jury instructions were erroneous; evidence on intent and defraud issues was not admitted; constructive trust was declined; impeachment was precluded; elder abuse was dismissed

Argues Court must affirm decision because: member cannot appeal provider's action to the Board; plaintiff failed to raise time standards issue