Maryland Injury Lawyer Blog

On Wednesday, the House Committee on Oversight and Government Reform begins hearings on the reversal of the Riegel v. Medtronic holding that state tort claims regarding medical devices were preempted if the FDA granted pre-market approval for a medical device. Pharmaceutical drug manufacturers have been on a real hot streak of late before this conservative Supreme Court. They are looking to extend their streak by asking the Supreme Court to extend the preemption umbrella to pharmaceutical drugs in Wyeth v. Levine, which is expected to be heard this fall. Congress has the opportunity to cut this pro-business Supreme Court off at the knees although I doubt they could get a bill past President Bush. Things may change in 2009.

The star studded cast of witnesses includes Dennis Quaid (whom I imagine will speak to the heparin overdose of his twins), William Maisel, (Medical Device Safety Institute), Aaron Kesselheim (Harvard Medical School's Division of Pharmacoepidemiology), David Kessler (former FDA head), David Vladeck, (Georgetown law professor who has written on preemption) Gregory Curfman (New England Journal of Medicine editor); Christine Ruther (drug company consultant) and State Representative David Clark (Republican state legislator from Utah who I suspect is in favor of preemption).

Again, I don’t suspect that this committee is going to try to send a bill to the floor anytime soon but it is good to get the ball rolling on righting the wrong of Riegel v. Medtronic.

I like to blog on Monday but given my figurative post-Mother's Day weekend hangover, I decided to review the original stories/opinions of others as opposed to venturing to offer my own:

The Baltimore Sun had an interesting article on allegations of bizarre misconduct by a Nevada judge in a bizarre story with a lot of interesting six degrees of separation subplots.

That Baltimore Sun also reports that former Supreme Court nominee Robert Bork settling his lawsuit against the Yale Club after his slip and fall. The New York Personal Injury Lawyer Blog has a complete post on the settlement and the exciting news that Judge Bork’s lawyer, who failed miserably in his efforts as Bork’s personal injury lawyer, has been selected as a member of John McCain’s steering committee for judicial selections.

The Washington Post has a good article on legal outsourcing in India, discussing both the exponential growth and some of the challenges in training lawyers in India.

The Maryland Lawyer Blog has a post on nominees for vacancies on the Maryland Court of Appeals and the Maryland Court of Special Appeals.

The Wall Street Journal's Law Blog has a post on how to fire an associate.

The Wall Street Journal has an editorial on tort reform in Mississippi where it attributes EVERY SINGLE GOOD THING that has happened in Mississippi to tort reform. Apparently, tort reform was the magic elixir to all that ails Mississippi. Who knew? If a stranger now helps a child get their cat down from a tree in Mississippi, tort reform is the root cause for the kindness. (Attention authors of Freakanomics: please expose this nonsense immediately.)

Above the Law has two goodbye emails from associates leaving their law firms. One Reed Smith associate gives an email/speech quoting JFK that has the pomp and circumstance of George Washington's "Goodbye to a Nation" speech or King Edward VIII's abdication speech. It would have been really moving except it was a junior associate leaving a mega firm, in which case it was just plain silly. On a more somber note, a Paul Hastings associate accuses her firm of terminating her because they wanted to get rid of her after her miscarriage, fearing she would get pregnant again. MyShingle also provides some commentary of this claim which is getting a lot of play in the blogosphere. Everyone is judging Paul Hastings guilty until proven innocent - probably including me. Even if these allegations are not well-founded, will this knock this firm from its high perch on the big firm food chain? If you were in-house counsel for a Fortune 500 company, would you start eagerly thowing new business Paul Hastings way?

The Illinois Trial Practice Weblog offers six tips for improving your direct examinations.

Finally, President Bush has nominated Judge Glen E. Conrad to one of the vacancies on the 4th U.S. Circuit Court of Appeals. Shockingly, Judge Conrad, a U.S. District Court Judge in Virginia, is described as one of the most conservative judges in the country. Apparently, Alan Dershowitz was not available.

The Legal Intelligencer has an interesting article about the size of personal injury law firms. I have always found it interesting that personal injury law firms in Maryland and in most states tend to come in two sizes: small and very small. Peter Angelos’ office in Baltimore is the sole exception in Maryland, largely because they have their hands around the asbestos juggernaut. Otherwise, I do not think there is a single plaintiffs' firm in the top 20 largest Maryland law firms. In contrast, Texas and Florida seem to have much larger, successful personal injury firms. I have never fully understood why the same business model would not apply, regardless of location. But even the largest of plaintiffs' law firms in the country are smaller than Venable's Baltimore office.

Every month or so, I report on the Metro Verdicts Monthly graph on the front of their publication which compares verdicts and settlements for a certain type of personal injury claim in Washington D.C., Maryland, and Virginia. Sometimes I am surprised by the difference in the results.

This month I am astounded by the difference between Virginia, Washington, D.C. and Maryland in median nursing home liability verdicts and settlements since 1987. The median recoveries in Maryland and Virginia are $125,000 and $175,000, respectively. This means that the median settlement and verdict in Virginia is 40% higher than Maryland. Virginia juries are generally more conservative than Maryland so this result is somewhat surprising. But here is what I find surprising: the average nursing home case settlement or verdict in Washington, D.C. is $700,000.

I have not done any sort of sophisticated jurisdictional analysis but I believe there is a general correlation between the size of nursing home verdicts and the size of medical malpractice verdicts. Yet these figures do not appear to support this conclusion. Metro Verdicts Monthly reports that the median settlement and verdict in Washington, D.C. for wrongful death medical malpractice cases over the last 20 years is $665,700. This is much less than Maryland’s median recovery of $900,000 or Virginia’s median recovery of $750,000.

These statistics would surprise me less if the study used average instead of median because the average can be influenced by extremely high verdicts or settlements that can create a misleading picture. But the median settlement or verdict number means that the study divided the jury verdicts and settlements into two equal groups, half having settlements or verdicts above the median and half having settlements or verdicts below the median.

On Wednesday, a Baltimore City jury awarded a 78-year-old Owings Mills woman $2 million in a medical malpractice case stemming from a failed surgery that led to three successive leg amputations.

After the verdict, Defendant’s medical malpractice lawyer gave this quote to the Maryland Daily Record: “This reaffirms my long held view that it is extremely difficult for a physician to get a fair trial in Baltimore City, particularly where there is a bad outcome and a sympathetic Plaintiff.”

If I were the reporter, I would have asked a few follow-up questions. Do you think that the people of Baltimore are not as smart and more prone to emotion then, let’s say, a Baltimore County jury? Why do you think this is? Is it just medical malpractice cases we cannot trust them with or all cases? What should we do about this problem with Baltimore City jurors? Should we replace Baltimore City jurors with the right kind of people, like the good folks in, let’s say, Potomac. If Baltimore City jurors can’t be fair on juries, should we continue to trust them to vote?

Congratulations to the malpractice victim and her lawyers Charles J. Piven of Brower Piven in Baltimore and Barry J. Diamond.

The New York Times yesterday reported that the FDA has announced that the oversulfated chondroitin sulfate contaminant found in Chinese-made heparin, which has officially been linked to 81 deaths and will soon be linked to a lot more, has also been found in drug supplies in Australia, Canada, China, Denmark, France, Germany, Italy, Japan, the Netherlands, New Zealand and, of course, the United States. Somewhat incredibly, the Chinese maintain that the contaminant is not responsible for the deaths caused by allergic reaction to heparin.

The Times also reported that a GAO report found that the FDA will need an additional $56 million next year to conduct inspections of foreign manufacturing facilities of pharmaceutical drugs. This is incredibly convenient for the FDA because it creates the appearance that the problem was they did not have enough money to inspect the plants. But the failure to inspect the Chinese plant stemmed from the fact that they confused the names of the plants and thought that plant had already been inspected, not a lack of resources to inspect the plant in the first place. Classic pass the buck.

The FDA is also suggesting that had they inspected the plant they still would not have uncovered the contaminant. Maybe that is so, I really don’t know, but don’t you think that had the FDA rolled in, someone in that Chinese heparin manufacturing plant might have said, “Gee, maybe we should take the oversulfated chondroitin sulfate out of the heparin.”

In the end, however, Baxter is the one responsible for a safe heparin product. What was Baxter doing to test heparin to verify its safety? As I have written time and time again, there is nothing inherently wrong with making our pharmaceutical drugs and medical devices in China because it does lead to lower prices at home. But, be it China or Kathmandu, if you are going to go further away from your product you have to put systems in place to make sure the product is being safely manufactured, particularly if it is a life saving product for vulnerable patients, like heparin.

In other news, the Maryland Daily Record reports today that American Capital Strategies Ltd., which has as a 90% interest in one of the companies involved in the chain of distribution, is a Maryland-based company. This is interesting, but I don’t think their ownership interest will pierce the corporate veil and Baxter is the deep pocket with ultimate responsibility for the safety of their heparin product. I am quoted a few times in the article about the heparin class action litigation. (I would provide the link to the article but the Daily Record takes down the article after a day or so. But, if you go to the Maryland Daily Record website today, you will be able to find it.)

Four passengers have filed a lawsuit in Alabama against Southwest Airlines, alleging breach of contract, negligent and reckless operation of an aircraft, and unjust enrichment. The essence of the complaint is that the company breached its contract with its customers by carrying them on planes that missed safety inspections. This is pretty much the same as bringing a claim against someone because their negligence could have caused a car accident. It is just far beyond silly.

As I have said before, while these lawsuits have nothing to do with personal injury cases, they have a meaningful impact of the perceptions jurors have of personal injury lawyers and their clients. The message is clear: no one was really hurt and everyone is just trying to make a buck.

Yesterday, we settled a serious car accident case in mediation that I never thought would settle. The client was looking well beyond the fair value of the case, valuing the claim at $2.1 million (our maximum potential recovery with Maryland cap on pain and suffering damages) and defendant undervalued the claim from the very beginning. Somehow, after over six hours, the case miraculously settled. This is one of those cases that I had I had assumed as an article of faith that this case would have gone to trial. It really is hard to tell which cases are going to trial and which cases are going to settle.

But even more incredible than the case settling was the fact that the driver defendant came flew up from his home in Atlanta, Georgia for the mediation. Obviously, he was not required or expected to be there. After the mediation was over, he gave an incredibly articulate two minute speech apologizing to the plaintiff and his wife for the accident. This guy really put himself out in a way that provided him no benefit but he came because he thought it was the right thing to do and he wanted to accept responsiblity. It was one of those things that really gives you a warm, fuzzy feeling about our fellow man.

One more feel good story… I got back to my office this morning and a client who case is pending in Baltimore County Circuit Court sent to our lawyers and staff thanking us for our continued hard work. She included with her note what is essentially a $100 tip! Of course, we will send the check back to her but it definitely boosted my spirits when I got here this morning.

I saw today an interesting blog post by a Massachusetts law firm advocating that Massachusetts ban finance companies who offer loans to people using their personal injury cases as collateral. The post (and a comment to the post) argues that by making the loans non-recourse loans contingent on the settlement, these companies get around existing usury laws. Particularly in cases where liability is not at issue and payment is a near certainty, using non-recourse does seem like a backdoor around the law.

I have no idea of what my opinion is on these personal injury loans. It seems like the interest rate and the fees these companies charge is beyond ridiculous. But I'm sure these are risky loans from people who cannot otherwise obtain a conventional loan or even a credit card. As a personal injury lawyer, the loans are difficult because they make resolving the case and getting the client a good outcome all the more difficult. I had a case this year where the client took out a $23,000 loan that morphed into a $75,000 loan in three years. What ended up being a great settlement offer we received in mediation did not look nearly as good to the client who owed $150,000 in medical bills, legal fees, and the repayment of that loan. In this case, we did call the finance company which agreed to substantially reduce their loan from a preposterous return on investment to a mere obscene return on investment. The guy who I spoke to was a lawyer who owned the company and he was pretty reasonable. In the course of my negotiating the lien, I obviously contended that I thought the interest and fees were simply unconscionable. His response was that you cannot possibly know how many of these loans go bad.

Between unconscionable and reasonable, the answer probably lies somewhere in the middle. But obviously, in our free market economy, if there was that much money to be made making these loans, more companies would have entered the market, which would have decreased the overall cost of the loans. This reminds me of personal injury lawyers who complain about the obscene profits insurance companies make. If this were really true, wouldn't we all buy a ton of Allstate stock today? But take a look at their stock over the last three years.

It is worth mentioning that most of these personal injury loan companies have some clause in the agreement with the client that their personal injury lawyer cannot attempt to negotiate the loan. (I hope I am not giving an idea to the companies that don't have that clause.) We take the position that this agreement does not bind us from negotiating the lien and no one has ever suggested that our lawyers are obligated to honor that clause.

Although I'm hardly an expert on the Maryland legislature, I look at some of the bills that impact Maryland personal injury lawyers and their clients that passed or failed in this legislative session in Annapolis and provide some commentary on them on the Maryland Lawyer Blog today.

My blog post on Thursday left the impression that Allstate had produced all relevant documents that plaintiffs' lawyers have been demanding. Apparently, after reviewing all of the documents, this may not be the case. Click here for the Time-Picaqune (New Orleans) article on what plaintiffs' lawyers say is still missing.

Back in January, I wrote about Allstate’s on going war with the state of Florida (and Missouri) in which it arrogantly racked up more than $4 million in fines for refusing to turn over documents that they had been ordered to produce and which had been requested by the insurance commission in Florida. On Friday, Allstate not only produced 150,000 pages of responsive documents it had protected as proprietary, but it made the documents available on Allstate's website.

In defending some of the documents, a company spokesperson said that many lawyers misinterpreted the documents that refer to how Allstate deals with claims from other parties, not from policyholders. The Allstate spokesperson said many of the documents, which had been picked apart by plaintiff’s personal injury lawyers, refer to claims-handling practices for car accident claims that have been incorrectly assumed to be applied to homeowners’ policies as well.

If this is true, I see Allstate’s point. Accident lawyers whine about Allstate’s bad offers in third party cases. In car accident cases in Maryland, I don’t think GEICO, Progressive, Nationwide, MAIF, or State Farm are making offers that are any different than Allstate’s. But that is not my point. The insurance companies have no obligation in third party cases to make fair offers. Insurance companies can do whatever they want. This is why we have lawsuits.

Moreover, the reason why insurance companies will not pay fair value on my accident claims is because two things have to happen before a bad offer turns into a lawsuit: (1) the accident lawyer has to be willing to file the claim, and (2) the plaintiff has to be willing to file a lawsuit and wait for their recovery. With respect to the former point, accident lawyers who fear filing suit rarely tell their clients they will not file suit. Instead, the lawyer tells the client that it is a great offer and they should accept it. The main reason insurance companies make bad offers is because lawyers let them. The idea that insurance companies – again in third party case – have an obligation to be fair is as absurd as the notion that personal injury lawyers should have the goal of being fair. In the adversary system, if your goal is to be fair, you are doing your client a disservice. This is not to say that you should not recommend fair settlements, but it certainly should not be a plaintiffs’ lawyer’s goal.

First party insurance cases where the insurer has a duty to their insureds to fairly provide compensation for their injuries or losses are a different matter altogether. In these cases, I think there is ample evidence that Allstate has failed to meet their obligations and I would not be surprised if these documents intentionally blur the lines between smart strategies in third party cases where the insurance company has a legitimate objective to pay less than fair value on claims and first party cases where the insurance company has a legal and ethical obligation to pay their insureds fair value for their claims.