Maryland Injury Lawyer Blog

Lawyers always argue over anything where there is not black and white set rules. (Actually, we argue when there are set rules, too.)

No one exactly knows the rules of the sequences of discovery because the rules are whatever the motions' judge says there are. So lawyers take positions on these issues with varying degrees of reasonableness.

A new Wisconsin cases is illustrative of this issue. In Dauska v. Green Bay Packaging Inc., the defendant filed a motion for sanctions and to compel the deposition of the Plaintiff who refused to be deposed. Why? Plaintiff's attorney refused to allow his client's deposition until he received discovery responses from the Defendant. Plaintiff's lawyer did not file a motion for a protective order but did make it clear his client would not appear for deposition.

Continue reading "Timing of Discovery Obligations" »

Today, the National Transportation Safety Board (NTSB) said we should lower the blood-alcohol limit from .08, the current standard, to .05. The NTSB argues that the U.S. is too lenient when it comes to drunk driving and wants the U.S. to adopt the same standard as other countries, such as those in Europe.

Data from the National Highway Traffic Safety Administration tells us what we have known for a zillion years: alcohol plays a role in nearly one-third of traffic deaths in America.

But the NTSB tells us something incredibly new, providing data that the risk of a crash is reduced by half when the definition of “drunk driving” encompasses the .05 standard instead of the .08 standard. Depending on body size, the difference between .08 and .05 is one to two drinks over a three hour time span.

It is hard not to cut to the chase on this. There are 12,000 deaths, give or take, a year in this country from drunk driving. Now imagine in your mind 6,000 people in a room that could have been saved by everyone having just a few less drinks. Then imagine everyone who loved those 6,000 people in a room. I have to think the NTSB is on the right side of history on this.

(I just pulled a little trick there. The NTSB says "car crashes" and I turned that into "car crash fatalities." But if you reduce that 6,000 to 3,000, does it really detract from the point I'm making?)

We had been reducing drunk driving deaths for a while but we have hit a stopping point. We either need to increase penalties or reduce the BAC. Those, it seems to me, are the two weapons we have in our arsenal to get past the bottleneck.

Continue reading "Should We Lower BAC for Drunk Driving in Maryland?" »

Last week, the Court of Special Appeals of Maryland decided the case of Davis v. Martinez. This was an appeal where the trial court entered an order that permitted the underinsured motorist insurer (State Farm) to participate in the trial anonymously. State Farm was never identified to the jury, the jury was not told about the plaintiffs’ claims against State Farm, the jury was never told who State Farm’s lawyer represented, and the jury was never told that State Farm’s expert medical witness was testifying on behalf of State Farm.

I know what you’re thinking if you are a Maryland accident attorney - “But wait, doesn’t King v. State Farm say that the UIM carrier must be identified to the jury in cases where the insurer is a party?” Well, yes. That is exactly the holding in King. You’d think that would be the end of it, right? Of course not.

We have still been getting motions to conceal the identity of the UIM carrier, but in cases where (unlike in King) the insurance company is not the only defendant. Instead of the insurance company bringing the motion, the motion is made by the negligent driver, who argues that they will be prejudiced because they may be more susceptible to a large verdict by being associated with an insurance company whom the jury may view as a “deep pocket.” They argue that King can be distinguished because there the insurer was the only defendant, so there was nobody else to be prejudiced. They claim that it is different when there is another party who could be harmed by identifying the insurance carrier.

Now, this is a stupid distinction, because the rationale in King was that it was an error to conceal the identity of a party to a lawsuit because doing so harmed the integrity of the jury system by permitting “charades at trial,” and causing juries to speculate about the identity of the parties and who the lawyers in the case really represented. One defense attorney who has brought these motions has said that they are granted about half the time.

Continue reading "Uninsured Motorist Claims: We Really Can Name the Insurance Company" »

An insurance policy is a contract. Insureds are obligated to read and understand their own insurance policy.

Right? Except no one reads an insurance policy. I'm not just taking about Joe Six Pack here. . I'm talking about you, my dear reader: You, me, all of us. Why? Because our busy and lazy lives don't afford us the time to do it. "Just give me the nutshell" is the mantra even insurance lawyers have in their personal lives.

The problem with this is that there are rare instances where reasonable people would expect insurance coverage but they don't because they didn't read their insurance policies. What do we do in these cases when we know that it is reasonable to expect coverage?

The Maryland Court of Appeals gave the wrong answer to this question in Stickley v. State Farm last month. In this case, the plaintiff was riding as a passenger in a car driven by her husband when her husband negligently drove into an intersection and was struck by another car. The accident killed the plaintiff’s husband and left her with serious injuries. At the time of the accident, the plaintiff and her spouse had a motor vehicle liability insurance policy with State Farm Mutual Automobile Insurance Company, and an umbrella policy with its subsidiary State Farm Fire and Casualty Company. No, I have no idea why they do it this way.

Continue reading "Your Umbrella Policy Does Not Say What You Think It Says" »

The first thing they do in a communist Nazi country is destroy the jury system. Why do they want to destroy the jury system? Because you represent the line between tyranny and democracy, right and wrong. You have the power. . . You have more power today than the President of the United States. . . . But the question is, will you have courage today? Do you have the God given courage. . . .

This is a line from a closing statement in a wrongful death medical malpractice case in Mississippi. Setting aside that the Nazis were not communist but bitter enemies of the communism, this is just unbelievably over-the-top, right? This line, Plaintiff's closing statement, a jury instruction stating that an element of the wrongful death claim was the "loss of the value of life," led a The Mississippi Supreme Court to revers a 1 million jury verdict in a wrongful death case.

This case is a classic "you could have saved her if you had taken the case more seriously in the ER" case. It happens every day in this country. In this case, the woman presented at the emergency room with a lot of problems: confusion, decreased appetite, tremors, renal disease, respiratory failure, and pneumonia. They did not take her to intensive care but gave her antibiotics, and the woman went into cardiopulmonary arrest. The opinion does not go into the merits of the case but you can be sure the doctor's attorney contested both negligence and causation.

A jury found the doctor negligent and awarded $1 million. The doctor appealed, arguing that the plaintiff's malpractice attorney made improper comments to the jury, including that the damages should include, "the value of a human life." Plaintiff's counsel was echoing the jury instruction that the jury may consider the "value of life" of the deceased when awarding damages.

The whole thing was a mess. It was not a great instruction and maybe a little misleading. Defense counsel also did not properly object to the instruction which would have given the court a chance to cure the problem or allow the plaintiff's lawyer to withdraw the request.

Continue reading "New Opinion: Wrongful Death Malpractice Verdict Reversed" »

Five have applied for the vacancy that will be created when Chief Judge Robert M. Bell retires in July from the Maryland Court of Appeals. Three of the applicants are on the Court of Special Appeals: Judges Stuart Ross Berger, Albert Joseph Matricciani Jr., and Shirley Marie Watts. A Baltimore City Circuit Court Judge, W. Michel Pierson, and Baltimore attorney, Mary Natalie McSherry, have also applied.

Chief Judge Bell's seat is the Baltimore seat so all of these applicants are from Baltimore.

I hope Judge Bell hangs around and continues to hear cases as many judges have when they reach retirement age. Go back and read this blog and find how many times I have used this space to suck up to judges.

An adjuster with Selective Insurance called this week to ask to meet at my office to discuss the settlement of a personal injury car accident case. She said that Selective is looking to meet with counsel as much as possible to discuss these claims.

Selective is a regionally based insurance company that does business in 22 states and is around 46th in market share in Maryland. I'm surprised they would want to dedicate the resources to a face-to-face meeting, but I do appreciate the sentiment. I mean, they will probably offer half of what the case is worth, but I bet they are a lot nicer about it in person.

State Farm used to invite us to its yearly Settlement Day where we would traipse down to their offices in Owings Mills for some food and drink for the exact same awful offers they would have given me on the phone. For reasons that escape me not in the slightest , they have stopped inviting me. Actually, I don't think they do it anymore, but I prefer the more conspiratorial version.

We have been compiling jury verdict information on our website recently so I have been looking though a number of jury verdicts.

Someone needs to do a study of the statistical differences in outcomes in medical malpractice lawsuits against foreign doctors and those born in the United States. I'm telling you, I might be looking at this in an unscientific, way but the difference just seems to jump off the pages at you.

Okay, so why is this? The first theory is that American colleges and medical schools are just better and they are putting out better doctors than those schooled abroad. I'm sure this is true to a point. But I'll bet you if you thin sliced it further, you would find that the same non-American doctors who went to college and medical school here still perform worse at trial than American born physicians.

It is a pretty depressing commentary, really.

The Maryland Court of Appeals issued an opinion in TransCare v. Murray last week.

This medical malpractice involves the transportation of the minor Plaintiff by helicopter from the Emergency Department at Easton Memorial Hospital in Talbot County, Maryland to the Pediatric Intensive Care Unit at the University of Maryland Medical System in Baltimore City.

The first battle in this case, the battle for venue. Plaintiff filed suit in Baltimore. Plaintiff argued that TransCare Maryland has its resident agent in Baltimore City, (2) the patient's medical records show that the doctors at Easton called the University of Maryland ExpressCare, which is located in UMMS in Baltimore City in order to effectuate a transfer from Easton to Baltimore City, and (3) air transport went to the University of Maryland to pick up a team of health care providers and then transported those people to Easton.

Plaintiff's lawyers also make another argument that we have tried to make as well (and also failed). If you need air transport during a serious medical emergency, this affects everyone in Maryland, including Baltimore City residents, in an equal manner.

Judge Sylvester S. Cox, sitting as Motions Judge in the Circuit Court for Baltimore City, found that while venue was proper in Baltimore City, Talbot County was the more appropriate venue. Tough blow. Let's face it, almost any personal injury case has greater value in Baltimore City than it does in Talbot County.

Let's get to the facts. Plaintiff had trouble breathing due to congestion and was rushed to Eastern Memorial where he was fitted with an endotracheal breathing tube. However, because the hospital was not equipped to handle intubated children, the hospital arranged for a helicopter to transport the plaintiff to a pediatric intensive care unit at another medical center. On board the chopper was an employee of the defendant, a commercial ambulance company under contract to provide ground ambulance services between the medical center and area hospitals. Shortly after take-off, the plaintiff’s endotracheal tube became dislodged, which blocked his airway and led to a drop in his heart rate and oxygen blood level. Members of the flight team scrambled to find an air mask, but could not locate it. The helicopter then made an emergency landing, where the crew located the mask and reintubated the plaintiff. The plaintiff’s cardiac activity returned to normal and the helicopter completed its trip to the medical center.

The plaintiff filed suit alleging medical malpractice. According to the plaintiff, the employee of the defendant failed to provide the requisite standard of care, and that the defendant was liable under respondeat superior. The plaintiff also claimed that he was left blind, deaf, and mentally disabled as a result of hypoxic brain injury from the incident. The defendant moved for summary judgment, arguing immunity arising from the Good Samaritan Act and the Fire and Rescue Act. Judge Sidney S. Campen denied the motion but then reversed himself and granted defendant's Motion for Reconsideration of their Motion for Summary Judgment. How often does that happen? Plaintiff appealed and the Maryland Court of Special Appeals reversed, ignoring the venue issue - a dead loser on appeal anyway - but finding that defendants could not use the Good Samaritan Act as a shield. Defendants than appealed to the Maryland high court.

Continue reading "Good Samaritan Act Malpractice Opinion" »

We have been compiling personal injury settlements and verdicts in a few different Maryland counties in recent years. We have pulled these from our own cases, jury verdict reports, and cases our friends and colleagues have handled.

• Baltimore City
• Prince George's County
• Baltimore County
• Anne Arundel County
• Frederick County
• Cecil County

A Nate Silver wannabe breaks down the question of whether jury size matters in these jurisdictions, where a jury's verdict does not have to be unanimous. Clearly, the greater concern is in criminal cases where it does seem a bit odd to convict someone to life in prison, as you can in Louisiana, on a 9-3 vote.

Continue reading "Does Size Really Matter?" »

I had jury duty yesterday which was unbelievably interesting. Turns out Anne Arundel County is a small town. The oral surgeon plaintiff might have done my root canal (it was definitely his office) and the defense lawyer represented the defendant in my first trial with Miller & Zois. (What happened in that case? Thanks for asking. We socked him with a $300,000 verdict in a low property damage case which I enjoyed sharing at the judge's bench yesterday.)

Shockingly, I was not chosen for the jury. I'm not sure if I was struck for cause; I'm going to try to find out. Technically, I can talk about the case since I was not on the jury, but because I'm going to share my impressions of the case - based on nothing but still - I'm going to wait until the case resolves before writing about it. So look for my post next week. It was a very interesting experience where I learned absolutely nothing but really learned a lot, if that makes any sense.