Baltimore City settled a wrongful death and survival action by Freddie Gray’s family for $6.4 million. The criminally unfair Maryland Local Government Tort Claim Act would have capped these claims at $400,000. So Baltimore City settled for a whopping $6 million more than the maximum value of the case. Said another way, the settlement […]
I have always had an interest in spoliation of evidence. Spoliation is the negligent or intentional destruction or alteration of evidence or the failure to preserve evidence for relevant to future, and sometimes even pending, litigation. This is not an issue we see often in car accident cases but we do see it in truck accident and product liability cases and, to a less extent in medical malpractice claims.
The Maryland Court of Appeals took a look at this issue in Cumberland Insurance Group v. Delmarva Power. This case involved the treatment of spoliation of evidence when the physical object destroyed is itself the subject of the case. The context is a little boring. This is a battle between an insurance company and a utility company so, in my world, this is a bad guy on bad guy battle. The destruction here was also negligent which is a lot less sexy than willful destruction.
Anyway, the claim centered on a house fire of a home insured by Cumberland Insurance Group. After the fire, two of Cumberland’s experts inspected the house, as well as the meter and meter box that were removed from the scene by the Fire Marshal. Based on its experts’ inspections, Cumberland believed the meter and meter box were the source of the fire and sought a subrogation claim against Delmarva Power, the electric company for the property. Cumberland received an estimate for demolition of the property and issued a check to the homeowner that appeared to include the cost of demolition. Although Cumberland sent Delmarva notice that Cumberland intended to file a claim against Delmarva for subrogation, the notification did not include information regarding the schedule for demolition. Subsequently, Delmarva did not send any personnel to inspect the property before demolition occurred, less than sixty days after the fire.
I’m passing along the latest information on Maryland transition to e-filing.
In 2014, the Maryland Judiciary launched the Maryland Electronic Courts (MDEC) system – a project that modernizes current case management systems and streamlines court processes to make case filings more convenient for litigants. Here are two updates
APRIL 4: New E-filing interface
Trump would not take this position. He is, by any definition, a celebrity. Many celebrities have a history of using lawsuit first recourse in settling disputes.
Yesterday, Trump threatened a lawsuit if Ted Cruz does not take a campaign ad down that is predominantly made up of Trump’s own words footage in a 1999 interview saying he’s “very pro-choice.” Cruz has, with good reason, mocked the viability of such a claim, giving the sound bite that Trump has been bringing frivolous lawsuits his entire adult life.
Trump certainly has filed a number of unbelievable lawsuits. Here are a few highlights:
- He sued two brothers for using the Trump name, even though their last name was Trump. Reportedly, these guys were worth more than ten times what Trump is worth, but somehow they were using the name to piggyback off of his success. The suit went nowhere.
- He sued his ex-wife for $25 million for talking about their relationship in spite of a confidentiality agreement. He might have technically been on the right side of this. But you get the point.
- Bill Maher joked that he would pay Trump $5 million if he could prove that his father was not an orangutan. Trump produced his birth certificate and sued for $5 million when Maher did not pay. This one has a real elementary school vibe to it, doesn’t it? Trump eventually dropped the case.
- He sued the Chicago Tribune for $500 million after the paper’s architecture critic, wrote he thought the Chicago’s Sears Tower would remain its world’s tallest building title even though Trump has made a plan to build a taller building on the East River in Manhattan. Reportedly, Trump did not even hire an architect for the building. A federal court judge dismissed the case, ruling that you cannot sue someone for their subjective opinions.
An amendment to Rule 1-311 went into effect on January 1st. The amendment requires that for all pleadings filed electronically with an electronic signature must include the attorney’s client protection fund number.
I cannot find the amended version of this new rule online. I highly doubt Judge Barbera is going to drive down to your office to compel compliance. But it would be a smart idea to start complying now. At some point, someone is going to argue that the pleading was not valid without the lawyer’s client security trust fund number. Do you win that battle? Yes. But you lose even when you won; when you are fighting a fight that should not have been fought in the first place. I also don’t want the clerk’s office calling and screaming at me. It never pays to make those people mad.
Rule 1-311 is the rule that requires an attorney signature on every pleading.
You’ve met your client, executed your fee agreement, gathered your facts and put your file together. Is it time to consider a settlement? It depends on the case.
Be Clear on Notice and Filing Deadlines
First and foremost, check the statute of limitations. If you have a statute problem, all bets are offer. If you have less than six months, file suit.
You can always serve the defendant, send a copy to the claims representative with whom you’ve been dealing, and agree to take no further action during a fixed time period, during which it is understood that settlement negotiations will be addressed. Also, be sure early on, when opening your file, whether there are any statutory notice provisions with which you must comply pre-suit. Sometimes they are obvious — clearly county-owned vehicle — and sometimes you are never going to be able to know unless you file suit and get defendant’s discovery responses.
You can always serve the defendant, send a copy to the claims representative, and agree to take no further action during a fixed time period, during which it is understood that settlement negotiations will be addressed. Also, be sure early on, when opening your file, whether there are any statutory notice provisions with which you must comply pre-suit. Claims against state and local governments typically have provisions such as these, which require specific notice to be given to designated officials. If you are an inexperienced lawyer or a pro se plaintiff, read that last sentence carefully. Because “Oh, come on, I’m sure it got to the right person” is not going to fly.
Ted Cruz has made a lot of enemies. I cannot remember a legitimate candidate for president who seemed to be as personally disliked as Ted Cruz. This quote in the Washington Post describes how he was viewed when he attended Princeton: “You either didn’t know Ted Cruz, you hated him, or you were David Panton.” That’s harsh.
What does this have to do with this post? Nothing, really. I just thought it was worth pointing out.
Cruz is very proud that he was on the front line in the tort reform battles, a point he will probably make in South Carolina – while I write this post. He defended appellate challenges to the 2003 Texas law that allows Texas doctors to commit malpractice as often as they please without any limitations. He was an author of George W. Bush’s “Let’s turn a blind eye to our federalism platitudes and install nationwide tort reform.”
After these accomplishments, Cruz gave being a private lawyer a spin. Even Cruz’ enemies who will now agree he is a fantastic appellate lawyer. He did what you would expect him to do in private practice: help big companies fight each other and squash the little guy. Also a personal injury lawyer, Ted Cruz defended, on appeal, two mammoth plantiffs’ verdicts in New Mexico that involved $110 million in damages between two plaintiffs. Keep in mind this was after he passionately fought against personal injury victims in Texas and throughout the country.
Why would such a committed tort reformer agree to represent victims? Cruz made clear that if he was going to get involved the “money had to be right.”
Baltimore City settled a wrongful death and survival action by Freddie Gray’s family for $6.4 million. The criminally unfair Maryland Local Government Tort Claim Act would have capped these claims at $400,000. So Baltimore City settled for a whopping $6 million more than the maximum value of the case. Said another way, the settlement was 16 times the cap for personal injury and wrongful death claims had this case taken the standard path and been heard by a Baltimore City jury.
High profile cases mold public perception in Baltimore and throughout Maryland about our civil justice system. People form impressions on how well the system performs when placing a dollar amount on personal injury and wrongful death cases.
On some level, Freddie Gray is a Baltimore specific McDonald’s coffee case. It has now been 24 years since Stella Liebeck spilled coffee on herself at a McDonald’s drive-through in New Mexico and that case continues to inform prospective jurors on how personal injury cases actually work. Freddie Gray may leave a similar legacy in Baltimore. What will that legacy be? What misimpressions will juror carry into the jury box as a result of this case? I believe there are unintended consequences to this settlement that will be felt for years.
I think these are the Freddy Gray takeaway messages:
Johns Hopkins is quite possibly the greatest hospital in the history of the world. People come from all over the world to get the best medical care that Hopkins can provide. The U.S District Court in Baltimore decided this week a case involving a woman who traveled from Kuwait to get treatment at Hopkins to get cancer treatment only to lose her leg. She believes she lost her leg because the doctors at Hopkins committed malpractice. The question in the case is whether this medical malpractice lawsuit against Johns Hopkins should be heard in federal court on in state court.
I don’t know if negligence caused this woman to lose her leg. But I do know that as great of a hospital as Johns Hopkins is, mistakes do happen there that cause people severe injuries and death. Like any hospital, Hopkins has bad doctors and good doctors that sometimes make bad decisions.
This case is not about what happened to the patient. Instead, the question is whether this medical malpractice lawsuit against Johns Hopkins will be heard in federal court on in state court. In a blow to the Plaintiff, the court ruled that this case will be heard by a federal judge and jury.
Would you rather file a lawsuit against a healthcare provider for negligence in Health Claims as a medical malpractice case or would you rather file a simple negligence case in Circuit Court?
If you answer was Health Claims, you need to get your head examined. Filing in Health Claims in Maryland just creates more hoops that you need to jump through. Are they manageable? Absolutely. But when it comes to byzantine rules and conditions precedent, sign me up for the path of least resistance wherever possible.
Is it Negligence or Medical Malpractice?
The determination of whether a claim against a health care provider belongs in Health Claim is based on whether the claim involves a “medical injury” as defined by MD. CODE ANN., CTS. & Jud. PROC. § 3-2A-01(g) which states a “medical injury” is an “injury arising or resulting from the rendering or failure to render health care.” Not every tortious injury inflicted on a patient by a healthcare provider is medical malpractice. The distinction between ordinary negligence and malpractice hinges on whether the mistake involves a matter of medical science or act requiring special skills not possessed by laypersons. So if the negligence or lack thereof can be assessed on the basis of common everyday experience of the jury, it is not a medical malpractice case.
What constitutes a “medical injury” in Maryland has been the subject a few Maryland appellate cases. It is clear that intentional torts like assault and battery are not subject to Health Claims. So if a doctor intentionally hits a child while removing stitches, that claim will not be subject to health claims. But we are are talking about classic assault and battery. You can’t just call it assault and battery if is is actually a medical injury.
In this case, the Plaintiff filed a lawsuit in Howard County alleging both tort and contract claims. When you file a lawsuit in Maryland, you fill out a Case Information Report (“CIR”) to serve on the Defendant. A CIR is a three-page administrative form that helps the court process cases. The court is looking to find out things like the nature of the claim and the amount of damages that are sought and, most germane to this case, whether the Plaintiff is seeking a jury trial.
Maryland Rule 16-202(b) makes it abundantly clearly that the purpose of the CIR is only case management by the court. But it is also undisputedly a clear intention by the Plaintiff to seek a jury trial.
The Plaintiff’s attorney asked for a jury trial in the CIR but neglected to file a separate document as required by the rules requesting jury trial. So the question in the case is whether a CIR is an acceptable vehicle for demanding a jury trial under Maryland law.