Maryland Injury Lawyer Blog

The Baltimore Sun reported this week that Baltimore County judge sentenced a man to three years in prison for crashing through a concrete barrier last January on the Baltimore Beltway and killing a construction worker who was described as a hardworking man who had taken overtime shifts on the Beltway project to earn extra money.

The drunk driver, a 29 year-old Towson resident who drove off after the crash, received a sentence of six years in prison but three years of the term was suspended. He is also required to serve 18 months of probation and pay $670 in fines and fees.

We are not criminal lawyers but I have had a number of cases representing victims who died in car accidents at the hands of drunk drivers. What I found surprising is that the prosecutor who handled the case, a representative of Mothers Against Drunk Driving who was available for comment after the verdict, and the victim's co-workers were all pleased with what was considered a tough sentence for first-time offenders convicted of vehicular manslaughter. Nancy Kelly, a Maryland public policy liaison with MADD, was quoted as saying that "What you usually see in Baltimore County is everything suspended but 18 months, so they usually serve less than a year."

This is obviously a difficult issue for everyone involved. As I mentioned on this blog recently, I am currently representing the family of a fine man who was killed by a drunk driver that also happened to be his best friend. In this case, the drunk driver will likely serve less than six months in jail. In this case and in the Baltimore County case referenced above, my prayers go out to the drunk driver and his family just as they do for the victim and his family. But are these sentences long enough for killing another human being? I don't know. Obviously, it is important to realize that in individual cases, the judge is in a better position to weigh the exacerbating and mitigating factors then a lawyer reading a snapshot article in the Baltimore Sun. But maybe generally stiffer sentences would help lower the amount of people (17,000 annually in the United States) who are killed in drunken-driving car crashes.

Maryland House Bill 1162, sponsored by Delegate Darryl Kelley, was passed by the Maryland General Assembly over Governor Ehrich's veto yesterday. As set forth in more detail in our January 24, 2006 blog, this new bill will greatly assist personal injury lawyers in Maryland dealing with uninsured motorist claims.

The burden is on the personal injury plaintiff's attorney in Maryland in an uninsured or underinsured motorist claim to prove that the negligent car, truck or motorcycle was uninsured or underinsured. The attorney's inability to establish lack of insurance is fatal to an uninsured motorist claim. Some jurisdictions, such as Texas, realizing how difficult it is to prove that an automobile is not insured, shifts the burden of proof to the insurance company. See Tex. Ins. Code. Ann. art. 5.06--1(7).

While not as accident victim friendly as Texas, there is a bill pending in the Maryland General Assembly that would make the Maryland personal injury attorney's difficult job of proving a negative a great deal easier. House Bill 1162 would enable Maryland attorneys representing personal injury victims bringing uninsured motorist claims to prove that the negligent driver was uninsured by one of two methods:

1. Submission of a certified copy of the Maryland Motor Vehicle Administration (MVA) record (or similar record from another state) indicating the absence of insurance coverage on the date of the auto accident, or
   
2. Offering:
   1. a document submitted by "the insurer that has been identified as the insurer of the motor vehicle" by the MVA or similar agency of another state;
   2. a writing signed by the owner or driver of the car; and
   3. a police report from the accident investigator.

If the attorney could make such a showing under this bill, the burden of proof would shift to the insurance company to prove by a preponderance of the evidence that either the car or the driver had insurance coverage.

The bill passed unanimously passed the Maryland House of Delegates (134-0) and also passed the Maryland State Senate but the bill was vetoed by Governor Robert Ehrlich. Supporters are trying to get the votes necessary to override the veto, a task they were unable to accomplish last year. Why Governor Ehrlich opposes the bill is anyone guess. The Maryland Automobile Insurance Fund (MAIF) opposes the bill, almost certainly at the Governor's express or implied request, but the rest of the insurance industry apparently understands the logic of the bill and has not opposed it. But Governor Ehrlich appears willing to stand on a virtual island on this issue.

A Prince George's County undercover narcotics police officer who shot and killed an unarmed college student, who he chased from Prince George's County, Maryland to Fairfax County, Virginia, was held responsible for his wrongful death yesterday by a jury that awarded $3.7 million to the family of the man who was killed.

Terrell N. Roberts III, the personal injury attorney for victim's family, noted after the verdict that neither the state of Virginia nor the Justice Department filed charges against the officer, nor did Prince George's County police find any wrongdoing by the officer. Yet a Prince George's County jury looking at the same facts found very differently.

These types of claims are nothing new in Prince George's County, who has paid $4.6 million in jury verdicts and out-of-court settlements in lawsuits in 2004. In the last 5 years, not including this verdict, the county paid $16.3 million in jury awards and settlements alleging excessive force or other forms of misconduct or negligence by P.G. County police officers.

Our lawyers have had many dealings with Prince George's County police in auto accident and other personal injury cases and our experience has generally been very favorable. Still, it is obvious that a small number of police officers in P.G. County are costing the county a ton of money. I am sure that the 98% of the officers who are doing their jobs as they should would love to have a share of the $16.3 million that P.G. County has dolled out over the last five years.

A new rule promulgated by the Food and Drug Administration yesterday to make drug labels more calculated to warn and inform patients and doctors also seeks to preempts state laws in failure to warn cases.

The new rule - the first revision of its kind in 25 years - includes language preempting state laws, stating that an FDA-approved label preempts conflicting or contrary state law, regulations, or decisions of a court of law for purposes of product liability litigation. This mirrors the position FDA attorneys have taken for the past 5 years in amicus briefs filed in products cases around the country arguing that agency labeling guidelines preempt state law.

The attorneys for the pharmaceutical companies for years have been pushing preemption as means of getting around their failure to properly inform health care providers of the risks associated with their drug or medical device. They have inundating plaintiffs' lawyers with mountains of briefs on preemption, arguing that it is impossible to comply with FDA approved labeling and still give a more stringent warning about a drug's risks. These lawyers further argue that more explicit warnings would frustrate congressional purpose by overdeterring the use of that drug by physicians and patients. These arguments have generally been rejected. For an example opinion, click here.

Pfizer's "impossibility of compliance" argument has been rejected because the FDA regulatory requirements only established minimum safety standards. The federal regulations themselves actually encouraged strengthened warnings in appropriate situations. 21 C.F.R. §314.70 is the federal regulation governing supplements to approved new drug applications. This regulation states that a change to labeling that "add[s] or strengthen[s] a contraindication, warning, precaution, or adverse reaction" is within the category of changes that "may be made before FDA approval." 21 C.F.R. §314.70(C)(2)(i). Plaintiffs' attorneys in drug injury cases have also historically relied 21 C.F.R. §201.57(e), which requires a warning whenever there is a "reasonable possibility" of an association between the drug and a serious, particularly life-threatening, side effect. At the time section 201.57(e) was promulgated, the FDA Commissioner made clear that "these labeling requirements do not prohibit a manufacturer, packer, relabeler, or distributor from warning health care professionals whenever possibly harmful adverse effects associated with the use of the drug are discovered...additions to labeling and advertising of additional warnings, as well as contraindications, adverse reactions, and precautions regarding the drugs, or the issuance of letters directed to health care professionals (e.g. "Dear Doctor" letters containing such information) is not prohibited by these regulations." 44 Fed.Reg. at 37,447 (June 26, 1979).

These new regulations may change the landscape. Expecting that the FDA would take this position on preemption the National Conference of State Legislatures, a bipartisan group representing state legislators, issue a statement that the FDA would be seizing authority that it did not have. But frankly, much of the law surrounding warnings and preemption revolves around interpretation of these FDA regulations. Congress may need to get involved to remedy this wrong but no one should expect that this Congress will. Accordingly, I think the hill for plaintiffs' attorneys representing drug injury victims just got steeper.

On January 14, 2006, a Clark County, Nevada jury awarded $14.1 million to a truck crash victim who was killed by a drunk driver in 2001. The verdict was divided between $4.1 million in compensatory damages and $10 million in punitive damages to be paid by three corporate defendants: Terrible Herbst Inc., ETT Inc., and Herbst Supply Inc.

Rosa Delegado, a 58-year-old grandmother, was getting into her car when the defendant truck driver hit her with a large industrial truck. Delegado was pinned against her car and run over. Ms. Delegado's family's attorney filed a negligent supervision personal injury civil lawsuit against Terrible Herbst, which operates 80 convenience stores and gas stations in Nevada.

The Plaintiff alleged that the defendant driver had a history of drinking and driving that apparently did not offend the sensibilities of his employer Terrible Herbst. In fact, incredibly, a company supervisor testified that he was not concerned by the fact that the truck driver defendant had come to work smelling of beer. He further testified on another occasion that the truck driver and another temporary worker asked him for permission to drink beer at lunch. In spite of this, the supervisor testified that he did not necessarily have reservations about this man driving a truck for Terrible Herbst. Unbelievable.

I did not sit through the trial, of course, I am just reading the media's account of this truck accident case from the perspective of a truck accident lawyer. But if these facts are as presented, it is hard to argue that punitive damages are not appropriate. In this case, the jury readily agreed to the tune of $10 million.

In Maryland, punitive damages are impossible to recover in a personal injury case like this one because the plaintiff must demonstrate that the defendant acted with "actual malice." Actual malice is "evil motive, intent to injure, ill will or fraud." Setting the bar even higher for plaintiff's personal injury attorneys in Maryland bringing a punitive damages claim, actual malice must be demonstrated by clear and convincing evidence.

The purpose of punitive damages in a case like this is to modify the defendant's behavior. It is extremely difficult to muster empirical evidence to evaluate whether punitives have a deterrence effect because there is no systematic reporting of punitive damages. Even if there was such data, there are so many other variable involved that could skew the data. The death penalty deterrance debate is a perfect example. So the debate among lawyers, judges, and legislators continues on anecdotal evidence.

Personally, I think this issue is very different from the death penalty question because corporations do act rationally: the seek to maximize profits and avoid risk. Accordingly, they act in their self interest to take steps to avoid risk. People considering capital offenses are rarely rational and certainly not risk adverse. In my opinion, punitive damages are necessary in Maryland when corporate defendants show reckless disregard for the safety of people like Rosa Delegado.

Maryland Attorney General J. Joseph Curran announced this week the guilty pleas of three sisters indicted in a scheme to defraud the Maryland Automobile Insurance Fund (MAIF) of over $65,000. MAIF said that more could have been stolen but "paper records" from before 1994 have been destroyed.

     The sister's scheme was to fraudulently add additional personal injury plaintiffs to actual Maryland auto accident claims and then write settlement checks to phantom injury plaintiffs with names that were close to the MAIF employee's sisters and their family members. After about ten years, MAIF got wise to the fraud.

     It is impossible to feign shock that this happened. MAIF, quite simply, is a poorly run business on virtually every level. First, MAIF adjusters are incredibly difficult to deal with, usually requiring multiple calls to get anyone to return a lawyer's call. While I may not always agree with the adjusters at GEICO, Allstate, State Farm and the like, I almost invariably enjoy dealing with them. We might disagree as to the value of the case and need to file suit, but there is a mutual respect and simply agree to disagree, usually getting back together to reevaluate the claim after suit has been filed or discovery has been completed. MAIF adjusters - most of them anyway, there are wonderful exceptions - generally do not extend personal injury attorneys in Maryland the courtesy of returning a phone call.

     MAIF's offers on cases are also not in line with other insurance companies. MAIF paid out $132 million in claims in 2004. Undoubtedly, they could pay out less and save millions in attorneys' fees by doing what other insurance companies do - make offers that are in line with the value of the cases (or at least in line with what other insurance companies in Maryland are offering for similar injury cases). Even MAIF adjusters explain their offers by saying, "I know what you are saying, but what do you expect? We are MAIF."

     Our lawyers have issues with other insurance companies dealing with personal injury claims in Maryland. This is invariable, we have an adversarial system and one of the downsides of such a system is adversaries sometimes go to far. I am sure our lawyers, too, have gone too far on occasion. But with MAIF, they are unreasonable at every single turn. Classic example: I have a case now in Prince George's County. Two friends are driving home, the driver is drunk and he gets in an auto accident and my client's son is killed. It is just a very sad case. The driver, unfortunately a MAIF insured, is now in jail for the death of his best friend. My client's son is covered under only a $100,000 uninsured motorist policy with Allstate. Accordingly, MAIF owes $20,000 and Allstate owes $80,000. Allstate has told me in no uncertain terms that they will pay out the $80,000 - even though there is no first party bad faith in Maryland - because there is no reasonable defense to the case. Yet MAIF has not even given me the courtesy of responding to a demand that I made last summer for their policy limits of $20,000. Every time one of our lawyers calls MAIF on this case, we were told that they will have a decision in a few weeks. We recently gave up and filed a lawsuit. Next time, our lawyers will save everyone the time and trouble and just file suit which is what we typically are doing in all of our MAIF cases now.

.... Updating this post on August 29, 2007, I have two things to add. First, with respect to this case, MAIF did offer their policy limits just days before trial. The verdict was $8 million (the underinsured motorist case proceed against Allstate). Second, I have written a number of blog post about MAIF since this post, which was one of the first blogs posted on the Maryland Personal Injury Lawyer Blog. We have received a few comments on one of these blogs about accident victim's experience with MAIF. If you have comments about your experience with MAIF, either positive and negative, click here.

The Maryland Daily Record follows up on an interesting story that I first saw in an editorial in the Washington Post back in August. Unlike the U.S. Supreme Court, Maryland Court of Appeals judges have a mandatory retirement age of 70. Three judges - Dale R. Cathell, Irma S. Raker, and Alan M. Wilner - will retire during the next governor's term. This means that approximately 43% of the court will change by the next governor.

Also unlike the Supreme Court, the Maryland Court of Appeals has been generally free of vitriolic ideological warfare that has long defined the Supreme Court in the modern era. This is probably most attributable to the fact that the issues a state court faces do not typically radiate core political beliefs and values the way Supreme Court decisions so often do.

Still, it is impossible to deny that judges nominated by either Baltimore City Mayor Martin O'Malley, or Montgomery County Executive Douglas M. Duncan will select judges that are generally expected to be more likely (I'm trying hard to qualify this statement, as you can see) to chose personal injury victims over insurance companies than judges selected by Governor Robert L. Ehrlich Jr.

The New York Times reported today in an article titled, Drug Makers Scrutinized Over Grants, that a congressional investigation of the money that drug companies are given by pharmaceutical companies as educational grants are often steered by marketing executives to doctors and groups who push unapproved uses of drugs. Incredibly, 23 pharmaceutical companies spent a total of $1.47 billion on educational grants.

Unfortunately the committee could not estimate what percentage of the grants are used for marketing purposes. But this underscores a reoccurring problem in patient safety: the fact that with many pharmaceutical products, the drug companies are providing direct or indirect funding to all of the leading doctors in a particular field, the opinion leaders whose views are of interest to the scientific community.

One classic example was with Dr. David Healy who was offer a post in the department of psychiatry in Toronto. Shortly thereafter, Dr. Healy wrote an article in the Hastings Center Reports issue of March 2000. The article referenced the capacity of Prozac to induce suicidality. When the issue of the Hastings Center Reports was published, Lilly withdrew their funding from the Center, citing specifically the Healy article. Eli Lilly, the manufacturers of Prozac, provided significant funding to the University of Toronto. Not surprisingly, the University withdrew their offer of employment. Professor Healy lost his job because he stood up for the rights of patients. After a lawsuit, the University of Toronto settled Dr. Healy's claim.

So the problem is that the drug companies are setting up a paradigm where fewer and fewer reputable doctors have the impartiality to be the first to step up and say that a drug is hurting the people who are using it. This money only buys so much time. Eventually, there are enough good doctors out there that enough will eventually stand up once the evidence that the drug is harmful reaches a critical mass. But, practically, it makes it more difficult for a doctor to stand up and be the first to say a drug or medical device should be taken off the market. As a result, critical time is lost.

The Court of Special Appeals of Maryland ruled last week in Shafer v. Interstate Automobile Ins. Co. that a motorcycle passenger - who was injured when the motorcycle on which she was riding blew out a tire - is not entitled to uninsured motorist coverage because she failed to meet her burden of proof that the damage to the tire was caused by negligence of a third party. Accordingly, the court affirmed a Washington County, Maryland trial court judge who granted summary judgment on behalf of defendants Interstate Insurance and Nationwide Insurance.

The Plaintiff's Maryland personal injury attorney presented uncontroverted evidence through an accident reconstructionist expert, R. Scott Wills, that the motorcycle accident was caused by a tire blowout from a piece of sheet metal from an unidentified vehicle that was lodged into the motorcycle's tires. There was no evidence of contributory negligence by Plaintiff or the operator of the motorcycle. But the unanimous court found that Plaintiff's case failed because her attorney did not and could not prove "any evidence of the negligent act or course of negligent conduct which resulted in the dislodgment of a metal piece in the roadway."

In other words, under Maryland Insurance Code Annotated Section 19-509(c)(1), you must be entitled to recover damages from the negligent party. Accordingly, the uninsured motorist insurance carrier in Maryland steps into the shoes of the party whose negligence caused the accident, even if the negligent party is a phantom car that sped away after causing the accident. In this case, there were no shoes to step into because Plaintiff could not point to any negligent party because there was no evidence that the nail was lost due to the negligence of a third party. In fact, logic and reason leads to the opposite conclusion: that the nail dropped from the engine of another car through no fault of the driver. The court wrote: "Although the owner or operator has an obligation to inspect and maintain his/her motor vehicle, the ability to discern that a metal piece of a vehicle has rusted through to an extent that it will become dislodged is an event which cannot be as easily anticipated as the potential for injury to an invitee and, indeed, is an event which may never occur." This is, of course, particularly true if the loose nail is not likely to be detected during normal use or maintenance or the car.

The court stated because Plaintiff's attorneys specifically stated they were not arguing the doctrine of res ipsa loquitur, they would not consider authority from two other personal injury cases in other jurisdictions where the doctrine was applied in a similar context: Woosley v. State Farm Insurance, 18 P.3d 317 (Nev. 2001) and Hale v. American Family Mutual Insurance Company, 927 S.W.2d 522 (1996). But even if the plaintiff's attorneys had argued res ipsa loquitur, it is difficult to argue that a nail is not usually placed in the roadway in absence of negligence.

Regrettably, the Maryland Court of Special Appeals really had no choice in this case but to find for the insurance companies. The Maryland uninsured motorist statute does not allow for absolute liability; instead, it allows for recovery when a negligent third party has no insurance coverage or limited insurance coverage.

The purpose of the Maryland Personal Injury Lawyer Blog is to comment on personal injury issues that directly or indirectly involve medical malpractice, auto accidents, truck accidents, and motorcycle accidents in the Baltimore-Washington area.

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