Ron Miller is a Maryland personal injury lawyer who focuses on serious injury and wrongful death cases involving motor vehicle collisions, medical malpractice, and products and premises liability. This site is designed to provide practical information to both injury victims and plaintiffs' attorneys in the Baltimore-Washington area who want to achieve a fair settlement or verdict. If you are looking for counsel for your case, call him at 410-553-6000

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Tiger Woods "easy" back surgery hurts some tort victims

Tiger Woods “easy” back surgery hurts some tort victims

Tiger Woods announced today that he has undergone successful back surgery and expects to be back playing golf this summer.  Good for him. This is bad news for golf fans who passionately root for or against Tiger.  But it is also bad for personal injury victims who are bringing a back injury claim in front of a jury.  Why?  Because juries get constant evidence from athletes that back injuries and back surgery is not a big deal.  Some will equate Tiger Woods to 58 year-old Mary Smith when she has a discectomy and fusion for a herniated disc after a car accident.

Why Tiger’s Surgery and Expected Recovery Misleads Juries

There are a number of reasons why the comparison is unfair.  First, not all back injuries are created the same.  Tiger had a microdiscectomy for a pinched nerve.  That is light years from, say, a herniated disc suffered by great trauma.  But some jurors view back surgery as back surgery regardless of the severity of the injury. Second, Tiger is a professional athlete who dedicates his life to keeping his body in the best possible shape.  Tiger won’t even share his workout secrets.   He will also get stunning medical care.  The best doctors and ridiculous amounts of medical attention you and I would never see. Finally, Tiger’s getting surgery in the first place is probably something you and I never would have gotten in the first place.  Why?  First, we are not violently swinging a golf club at pretty much the speed of light.   So I can probably still workout and work around the same injury that Tiger needs to get taken care of so he can perform on a world class level. Continue reading →

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jurorsIn Pearson v. State, the Maryland Court of Appeals earlier this month addressed the important question of which voir dire questions, if requested, must be asked of prospective jurors.  Why am I writing about it?   It might have important ramifications on civil personal injury jury cases.

The facts of this case are simply.  Pearson is  indicted and convicted for a narcotics offense.  On appeal, he argues that he has been denied a fair trial because he was not permitted to ask certain questions during voir dire.  Pearson claims that the trial court committed reversible error when it refused to ask the venire panel:

  1. if any member of the panel, or any member’s family, friend, or acquaintance had ever been the victim of a crime; and
  2.  if any member of the panel was ever a member of a law-enforcement agency or “kn[e]w anyone who is employed” by a law-enforcement agency.   Both requests had been denied by the trial court.
  3. Do any of you have strong feelings about [the crime with which the defendant is charged]?

Maryland only allows questions to be presented during voir dire if the question is “reasonably likely to reveal specific cause for disqualification.”  Maryland only recognizes two specific instances that comprise specific cause for disqualification: (1) a statute disqualifies a prospective juror or (2) a collateral matter is reasonably liable to have “undue influence over a prospective juror.”  Under the second category, which this case addressed, a matter has undue influence if it addresses biases that create a “demonstrably strong correlation” with a mental or emotional state that will improperly influence a juror’s decisions. Continue reading →

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UBThe U.S. News and World Report rankings came out today.   It was not a good day for the University of Baltimore School of Law: ranked #135 among U.S. law schools.

Of course, this post is going to assume that U.S. News & World Report is relevant to anything.   When was the last time you paid a moments attention to this magazine that did not involve looking a school rankings.  The answer is probably 10 years ago.  But, it certainly is because people care about it.  But whether it is a reflection of quality is anyone’s guess.

What Happened?

I don’t know.  You have to appreciate that the University of Baltimore School of Law has been on a crazy roll in recent years.   After falling and falling, its ranking with U.S News had been soaring higher each year.   But the real kicker is the new building they opened last year.  The old UB was a rat hole.  We can say that now. It really was.  The new building is just stunning.  It has anything you could ever want to teach or to receive an education in, and do it in style.  Even Above the Law, which has snarky commentary on the color of the sky, had good things to say about the design of the building.

So what happened? Well one thing that happened is Dean Philip J. Closius left.  Why?  I never fully understood or bothered to get my mind around all of the details.  But I think I can distill it down: money and ego.   It seems that most everyone involved had way too much of the latter, including Deal Closius himself.  But I’ll tell you what the guy could do: raise money and push our rankings with U.S. News north.   Now, was our ranking all that high?  No.  But the key was we were moving in the right direction and people were getting excited.  We peaked at #113 two years ago which was after Closius left but probably reflecting his work.    Now we have back-to-back falls in the wrong direction: #134 last year and #135 this year.

I was depressed when he left, so much so that I offered to donate $10,000 to UB if they brought him back. But the bridge had been burned on both sides and that was that.

Now we have a new dean at U.B. Ronald Weich, a former Assistant Attorney General for Legislative Affairs at the Department of Justice.   While I’m hardly an inside player as someone on the adjunct facility who had never even met the new dean, I do talk to students and other professors.  By all accounts that I have heard, Dean Weich is up to the task.  He smart, he cares about what he is doing, and he is determined for the school to succeed.  He also wisely is playing to UB’s strength: teaching practical skills that get students ready for the bar exam and for the real world.

But I have to think that the transition alone – having to have an interim dean and getting the new guy up to speed – had a cost that we are paying for now.

Certainly, we can get back on the right path and we can use this building to market the school in a way that never could have been done before, that will bring in out-of-state students and just generally increase the quality of students coming into the school.  But we really have to hustle at this point and overcome this hit and get the momentum point back in our direction.

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PitbullOne of the most highly commented blog posts I have had here was when the Maryland Court of Appeals decided Tracey v. Solesky, one of the rare appellate opinions that seemed to make everyone mad.  Tracy decided to carve out a pit bull exception and make pit bull owners pretty much strictly liable.

Everything in this case was goofy.  The court even came back with an amended opinion – how often does that happen? – to say that mixed breeds are not strictly liable which, theoretically, would make the key to the case the tracing of the dog’s blood lines.

Pit bull lovers and owners pretty much demanded that the Internet be shut down.   Their passion – and their statistics – actually forced me to do something that is rare on the Internet: change my opinion in midstream.  Whoever said screaming at someone on the Internet can’t change hearts and minds?

This passion pushed the Maryland Senate last week to unanimously pass a bill that eliminated breed distinctions.  Which, is bad news for victims of pit bull attacks (and, let’s face it, plaintiffs’ lawyers).  The Senate bill throws a bone — literally no pun originally intended until after I wrote it — to victims by creating strict liability for canines who attack while running at large.  But, let’s be honest, that is not the majority of pit bull attacks.  An estimated 70% of dog bites occur on the owner’s property.

The one thing that struck me about the anti- Tracey opinion zealots is that they did not generally oppose strict liability on dogs.  There seemed to be some receptivity to the idea that the problem in dog bite cases is not bad dogs but irresponsible dog owners.

The Senate bill does not come close to making that leap.  The Senate bill is not a “one bite rule” but instead requires that a dog has shown a past propensity for violence, such as aggressive behavior.  What is aggressive behavior that stops short of a bite?  Ah, the proposed law would make judges and juries try to figure that one out.   But the good news is that this is nothing new.  This law just codifies what has always been the law.

In case anyone is wondering, I believe the bill will be prospective.  So, assuming this bill passes and it will, there will be a period of strict liability for pit bulls between the Tracey opinion and this new law.

Random Opinion I’ll Deny I Ever Had

Let me say something now that I believe that goes against my interests as a plaintiffs’ lawyer: I don’t see the wisdom in putting the landlords on the hook in the vast majority of these cases.  It has a chilling impact on dog ownership which means more dogs being murdered at the pound.  Moreover, they are rarely negligently responsible for the harm that occurs.  Hopefully, no one can read this with the line through it.

Winners in New Bill

  • People who decry breed discrimination against pit bulls because the law would eradicate the distinction.
  • Pit bulls. The end of legalized dog discrimination.  I have to think this will help their overall self-esteem.
  • People who are bit by dogs at large.  These are certainly the most innocent victims, at least in a sense.

Losers with New Bill

  • Victims of pit bull attacks.  Proving your case will get a lot harder.
  • Plaintiff’s lawyers.  Let’s admit open season on pit bulls with a strict liability rule had far greater upside than getting strict liability for dogs who are at large who bite.
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marijuana

Plaintiff should have used marijuana?

People get in car accidents and they get badly hurt.  So insurance defense lawyers end up making some crazy arguments.  But in  Glesby v. MacMillian, a Maryland car accident case, the defendant reached a new height of insanity: arguing that the plaintiff should have used marijuana to mitigate her damages.

(Okay, okay… this is not an actual Maryland case.  And, right, it is not even in the U.S.   It is Great Britain in British Columbia.  (That’s Canada? Oh.) Anyway, forgive me.  The story was just a lot more fun that way.  Sorry.)

How This “You Should Have Taken Marijuana” Argument Came to Be

Glesby involved a 28 year-0ld woman who got rear-ended.  Pretty common set of facts.  She racks up about $17,000 in bills.  (That’s Canadian money.  My sources tell me they are too proud to use our money so instead they using money with the Queen of England on it.  Perplexing.)

Okay, enough of the stand-up act which I’m not great at anyway.  The plaintiff files suit in the Supreme Court of British Columbia, which sounds fancy, but it is really just their trial court.  It is a bench trial.  Plaintiff claims continued discomfort in her neck, shoulder, and upper back after the crash.  The Defendant argues that the Plaintiff’s injuries would not have been as bad if she had taken medical marijuana.

Sadly, for the comedic value of it, this argument did not come out of thin air.  Not one, but two of her treating doctors suggested medical marijuana which can be legally grown in British Columbia (until April 1st as it turns out).  So the defense lawyers jumped on her failure to comply with her doctors recommendation of using medical marijuana.

Wisely, the judge refused to find that the plaintiff failed to mitigate her damages by using medical marijuana.  The judge pointed out the doctors’ advice came late in the game and that the Plaintiff, who had never used drugs, had a good faith reservation about the wisdom of acquiring and using the drug.

What You Should Take Out of This Case

I wrote this post because it is fun.   Silly defense lawyer argues Plaintiff should have used drugs after her accident although admittedly the argument is slightly more nuanced.  But the lesson I would take from this case is that defense lawyers will take insane positions in discovery.  They don’t care how ridiculous the angle is.  They just push forward with reckless abandon.

Why do they take the risk?  They figure they can walk it back in trial.  How many times have you gone to trial excepting the lunatic that showed up at the Plaintiff’s deposition only to meet Ms. Smooth Agreeable Reasonable at trial?

But how can you use the Ms. Stone Nuts Crazy Lady at trial?  Here’s what you do.   You file requests for admission getting them to admit the painfully obvious.  Plaintiff was hurt.  Maybe that the Defendant got hurt if he was also hospitalized.  Ask the defendant to admit the facts in the statement she gave police.  It does not matter. Defense counsel will almost invariably deny these in a Pavlovian way they could not stop if they tried.  At trial, you read those requests to the jury.  In closing, you tell them the problem.  The defense of this case is that the sky is green.  They will say anything and do anything to win and they don’t mind insulting your intelligence and trampling on this Plaintiff’s right to justice to win.   It shows the defense for what it really is.

 

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new maryland appellate opinion

New Uninsured Motorist and Jury Awarded Zero in Pain and Suffering Damages Opinion

Last week in Keller v. Serio, the Maryland Court of Appeals took yet another look at two issues that have been reoccurring leitmotifs in Maryland appellate opinions: (1) to what extent can we talk about uninsured motorist coverage in an uninsured motorist case and (2) whether a jury can award zero damages when all of the facts suggested otherwise.  Keller is a motor vehicle negligence action instituted solely against the at-fault driver.   Negligence was conceded and the issues at trial were confined to causation and damages. GEICO, although not a party to the action, realized the possibility that, as the plaintiff’s insurer, the plaintiff might get a verdict in excess of the liability coverage.  GEICO intervened in the case.  At trial, GEICO did the “UM potted plant defense” of just sitting at the trial table and doing absolutely nothing.   Plaintiff’s counsel alluded to GEICO during opening statements, but thereafter did not mention the insurer, its policy, or anything about UM policies. At the close of the trial, plaintiff’s counsel sought an instruction clarifying for the jury (a) how UM policies work and how they should not influence an award of damages and (b) clarify any confusion that may have resulted from GEICO’s presence at the trial.   The trial court refused the instruction.   The jury returned $29,355.69 in economic damages, yet $0 in noneconomic damages. That, folks, is what you call a bad verdict.  Plaintiff argued that such a breakdown of damages is inconsistent, illogical, and evidence that the trial court’s failure to give the UM instruction was reversible error.   No one can argue with the former part of that sentence.   It is completely illogical to say someone incurred nearly $30,000 in medical bills and did not suffer unless the evidence was that the Plaintiff was made of stone.  The question is whether it warrants nullifying the jury’s verdict and whether the uninsured motorist mess played out appropriately.  The Maryland high court said no and yes and shot down the plaintiff”s appeal.

The Uninsured Motorist Instruction

Plaintiff’s big beef was that failing to give the desired UM instruction was confusing to the jury.  It almost certainly was.  They had to be asking themselves, “Why is GEICO here and why is their lawyer not saying anything?”  But the uninsured motorist issue was never properly before the jury.   The plaintiff’s lawyer  never offered the insurance agreement into evidence. The Plaintiff took his best shot by pushing the court to follow Boone v. American Manufacturers Mutual Insurance Co.   Boone is the classic “should have given the UM instruction case.”  In that case,  the issue of UM policies was central to that case, because the UM provider was one of the parties to the action.  The Boone court found reversible error in the trial court’s failure to give a requested instruction on UM policies, because UM policies were a focal point of the trial.  The Court of Appeals distinguished that holding by citing the fact that nothing about UM policies was ever entered into evidence.  Although mentioned in opening statements, opening statements are not evidence.  So while an instruction was essential in Boone,  the court found it was not essential or even wise under the circumstances of this case.

The “Juries Can Give What They Want” Holding

It is, to use the legal term, crazy train to award $30,000 in medical bills and nothing in pain and suffering.  The question is can a jury do it?  While some states have held that an award for economic damages associated with the treatment of pain is inconsistent with a failure to award any money for pain and suffering, Maryland has not.   Maryland courts have said this over and over again.    End of story and end of this appeal.  Juries can do what they want and this includes seemingly inconsistent civil jury verdicts. 

 

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The U.S District Court for Maryland made a noteworthy ruling in Jackson v. Johnson, a Maryland auto tort case that is interesting case that involves federal diversity law and interesting plaintiffs’ lawyers tactics in finding their preferred venue for the case.

Plaintiffs' Venue Tactics on Full Display

Plaintiffs’ Venue Tactics on Full Display

The Battleground

Venue is key. It is this way everywhere. But it is particularly so in Maryland.  In this state, plaintiffs want to be in Baltimore City or Prince George’s County.  Some people kid themselves that “in the right case” another venue can be better.  But this is mostly delusional.  

Conversely, you really do not want be in some of these ultra conservative counties on the Eastern Shore.  Can plaintiffs win tough case there?  Absolutely. We have.  But you really want to choose the path of least resistance and you don’t get that in those counties.

But, for some lawyers in some cases, the worst case scenario for an auto tort case is federal court.  Why?  I mean, the federal courthouses make most county courthouse look downright pedestrian.  But, alas, this is not a beauty contest.

The first problem many auto tort lawyers have is that it is not in their wheelhouse.  Very few garden variety accident claims find their way into federal court. The federal courts make you jump though a lot of hoops with respect to Rule 26 disclosures and other obligations.  Some of these obligations are evidentiary.  As a breed, plaintiffs’ lawyers think the federal rules of evidence are are more exactly both in letter and in application.  Another basis for the reluctancy of Plaintiffs’ attorneys  is if you are a lawyer on the Eastern Shore, you really don’t want to track all the way to Baltimore.  (Insurance companies don’t care.  They will just hire a lawyer in Baltimore or Greenbelt.  Or not.  Either way.)

The Big Issue in Jackson

Plaintiff filed suit in Washington County.  This is not a place where plaintiffs’ lawyers crawl past other jurisdictions to sue there.  Still, Plaintiff sued for $75,000 because it wanted to fly just shy of the jurisdictional amount that would invoke federal jurisdiction if there was diversity of citizenship which there was in this case.  To satisfy diversity jurisdiction, there must be (1) diversity of citizenship and (2) the matter in controversy must exceed the sum or value of $75,000.  Citing the plain language of 28 U.S.C. 1332(a), the court held that alleging exactly $75,000 in damages should be considered a claim not in excess of $75,000, precluding subject matter jurisdiction.

That should  be fatal to removal in any case where the amount plead in the ad damnum clause is not more than $75,000.   Defendants still thought the case should be removed to federal court.  Why?   Defendants are bugged, with some reason, that after a verdict above $75,000 the plaintiff could technically just amend their Complaint even after the verdict.  So, at a minimum, the defendant wanted the court to put a $75,000 cap on the case.

Court’s Ruling

The court ruled in an opinion by Judge Ellen Lipton Hollander that defendant had to prove that it was a “legal certainty” that the plaintiff would actually recover more than $75,000 if she prevailed.  Proving the value of damages to a legal certainty in a tort case is an impossible task.   Alternatively, the defendant argued that if the case is kept in state court, the award should be limited to $75,000 and not a penny more.  Again, the court disagreed and cited Maryland’s long standing policy of allowing post-verdict amendments to pleadings.

The court stressed that while a plaintiff in Maryland is permitted to amend the complaint post-verdict to accurately reflect the value of the damages, there is no rule that says a court must allow a plaintiff to amend the complaint post-verdict.  For the court, the fact that a post-verdict amendment request may be denied was sufficient to guard against plaintiff’s lawyers who deliberately request damages at or below $75,000 to avoid removal to federal court.  Since a plaintiff, the court argued, may or may not be permitted to amend the complaint post-verdict, he “under-claims” his damages to avoid federal court “at his own peril.”

Is this new law?  Not really.  Niles Barton & Wilmer, who defended the case, decided to fight this issue for reasons that escape me.  But I’m writing about the case because I think it raises issues of tactics and law that are interesting and important for every plaintiffs’ lawyer to consider.

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emailI don’t write about criminal cases on this blog for a reason: I know nothing about them.  But Donati v. State is a criminal case that teaches us a lesson in how to get an email into evidence at trial. In medical malpractice and product liability cases, this is something you often need to be able to do.

The Facts of Donati v. State

If I’m going to have to read a criminal case, I want some wacked out facts.  This case delivers.

Continue reading →

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jurorsCan you strike a juror based on sexual preference?

This week, the 9th Circuit took this issue on.   SmithKline Beecham v. Abbott Laboratories is a case of two giant drug companies fighting each other over what I’m sure is already obscene profits involving the sale of an anti-HIV drug.  In the suit,  GlaxoSmithKline  accuses  Abbott Laboratories of antitrust, contract,  unfair trade practice (UTPA) claims, and instigating World War I by shooting the archduke.  The usual stuff.

Continue reading →

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I was in Florida after Christmas and completely missed the Maryland Court of Special Appeals opinion in Ayala v. Lee, a truck collision case in Anne Arundel County where the plaintiffs were two undocumented aliens who were rear ended near Annapolis.

After crossing the Bay Bridge, the driver of the plaintiffs’ vehicle stopped the truck and pulled clearly onto the shoulder on Route 50 to fix a problem with the windshield.  They put half the vehicle in the grass, off the shoulder.  The driver also activated the  emergency flashers.  In other words, they were doing exactly what they should have done under the circumstances.  After getting the wipers fixed, their truck was rear-ended by another truck.  The driver who was with the Plaintiffs was killed and the Plaintiffs themselves were badly injured.

This is a slam dunk on liability, right?  Somehow it goes to the jury on the question of liability. Continue reading →