Maryland Injury Lawyer Blog

Rene Stutzman of the Orlando Sentinel reported this week the post-trial tactic of the defendant’s medical malpractice lawyers after a $28 million verdict in Florida. The tactic: if you lose the trial, put the jurors on trial. Defense attorneys say three of six jurors lied during jury selection, and are seeking to bring the jurors back into court to explain themselves. As I explain below, I think this request, if allowed, is a blow to the integrity of the jury system we have in this country. Certainly this request would be denied under Maryland law.

The medical malpractice action in the Florida case stemmed from a minor surgery performed by Dr. Robert Bowles, an obstetrician-gynecologist, for minor incontinence. Plaintiff alleges that Dr. Bowles negligently performed the procedure and, as a result, she cannot urinate naturally. Instead, the Plaintiff must catheterize herself twice a day for the rest of her life. In other words, we are talking about incredibly serious damages in this case.

Still, Plaintiff’s medical malpractice attorney told reporters that he had offered to settle the case for $275,000 before trial. Instead, the doctor and his attorneys decided to roll the dice, and they got hit with a $28 million verdict. Florida has a cap on pain and suffering damages so she will not receive anything resembling $28 million in even the best case scenario. (But would you take $28 million for this woman’s injury?)

The doctor’s attorney now alleges that three jurors lied during voir dire, claiming that two jurors did not disclose that they had been involved in lawsuits and a third did not mention all of the lawsuits she had been involved with in the past. Most of these lawsuits, however, involved unpaid debts in which she was a defendant.

One of our personal injury lawyers tried a case recently where the defense lawyers in post-trial arguments claimed juror misconduct. These lawyers contended that although a voir dire question was asked in the present tense, the juror could not have possibly understood that the question was in the present tense because the question was presumably read quickly. The logic of the argument is that although the juror inadvertently answered the question honestly, she had malice in her heart because she must have understood the question in the present tense. Why? Because she could not possibly have understood the question posed "in an instant during voir dire." In other words, the defense attorneys claimed that while she told the truth, she must have meant to lie.

I was flabbergasted. Can you imagine making this argument with a straight face? Calling this argument ridiculous seems drastically understated. The Anne Arundel County trial judge summarily rejected the argument. Defendant’s attorney actually noted an appeal but shortly thereafter agreed to pay the judgment.

Continue reading "Juror Misconduct Allegations in Florida Medical Malpractice Case" »

Last week, I wrote about the new Baltimore judges selected by Maryland Governor Robert L. Ehrlich, Jr. Parenthetically, I noted that this is a big story in Baltimore because Judge Christopher Panos is openly gay. I added that I look forward to the day when this is not a story. I actually hestiated to write those words not because I do not believe them but because I want this personal injury lawyer blog to be apolitical. But I do feel pretty strongly about discrimination against anyone for any reason other than the content of their character. So I added my thoughts.

Since my comments, the uproar has continued. I was interviewed earlier in the week by a reporter from the Washington Blade. Here is the article. The reporter asked a lot of detailed questions and wrote a good article. My only two mild criticisms:

1. The article identifies me as "straight" which I am. But the whole point of what I was trying to articulate is that labels - even labels that put you in the majority - divide rather than unite.

2. Judge Panos is apparently raising a child with his long time partner. She's 16 months-old. I criticized the Baltimore Sun for printing her name because I do not see what the point is of identifying her name or his partner's name either for that matter. Neither are public figures. Yet in this article, he repeats both of the names.

My next post will be back to specific topics of interest to personal injury lawyers in Maryland and throughout the country.

Jury Verdicts Research reported earlier this month on a $600,000 settlement a Philadelpia lawyer obtained on behalf of a truck driver whose primary injury was the loss of his sense of smell. The truck driver claimed a design defect in a milk truck because it failed to provide a grab handle on the rear driver's side of the truck.

Not to make light of this gentleman's injuries, but I have an awful sense of smell which, generally, I think comes in handy. I think the truck driver's lawyer got him an excellent verdict for a design defect products' liability case for this injury when liability was in dispute.

Yesterday I took the deposition of the Defendant truck driver in a tractor-trailer accident case that occurred on North Point Road near its intersection with Quail Avenue in Baltimore, Maryland. My client suffered permanent injuries to her left hand (she is left-hand dominant) in the accident. This is a classic right turn tractor-trailer truck accident case. In order to make a right turn in the tractor-trailer, it was necessary for the Defendant truck driver to use two lanes of traffic. I think it is also incumbent upon the Defendant to make sure no one is coming when he makes that right turn, although this requires waiting for a moment while checking his rear view mirrors. In this case, the truck driver made a quick right hand turn into my client, who was apparently in one of his blind spots.

Now, onto the subject of this blog. During his deposition, the truck driver told me that he keeps a log of the driving he does in his tractor trailer. Motor Carrier Safety Regulations regulate the permitted hours a truck driver can be on the road and require the truck driver to keep a log of his or her trips. Obviously, reviewing this log is helpful in establishing liability, primarily to determine whether the truck driver was in a hurry or the likelihood that fatigue was a factor in the truck accident. When I asked the question, his lawyer (who handles almost exclusively truck accident cases - nice guy and a good lawyer) spoke up and said that the log had been destroyed.

In this case, when the trucking company destroyed the log, they knew of the potential litigation. But they destroyed the log anyway. Why? Who knows? It could have been an innocent mistake, or they could have been hiding something. We will never know. What happens at trial in Maryland in this situation?

Naturally, as lawyers, we use a Latin expression to address this problem: omnia praesumuntur contra spoliatem, which means "all things are presumed against the spoliator." Maryland has adopted this maxim under the assumption that people do not destroy evidence that would be helpful to their case. Accordingly, under Maryland law, when evidence is destroyed by a party who knows, or should know, of the evidence's relevance to a potential lawsuit, the aggrieved party's attorney will ask the judge for a jury instruction that the destruction or alteration of evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator. See Anderson v. Litzenberg, 115 Md. App. 549, 561-562 (1997).

In such a serious case I do not think they will contest liability because they will lose credibility on their damages arguments if they do. But, if the truck driver's lawyer does not concede liability, I think their failure to keep this log will likely inflame the jury and lead to a higher damage award.

For more on spoliation in Maryland, click here.

A former insurance law student of mine asked this week whether Pittsburgh Steelers quarterback Ben Roethlisberger’s failure to wear a helmet in his motorcycle accident earlier this month would be contributory negligence under Maryland law. Under the current state of Maryland law, the answer is a qualified no.

The Maryland Court of Appeals addressed this issue 36 years ago in Rodgers v. Frush, 257 Md. 233 (1970). This case involved a motorcycle accident in Prince George’s County where the Defendant’s lawyer sought to introduce evidence at trial from a medical doctor who would testify that the Plaintiff’s failure to wear a helmet exacerbated his injuries from the motorcycle accident. The Plaintiff’s attorney argued that this evidence was not relevant to contributory negligence because it did not involve the issue of the Plaintiff’s or Defendant’s standard of care. The Prince George’s County Circuit Court agreed and the Maryland Court of Appeals affirmed. The court noted that while Maryland had passed a helmet law three years after the accident, this did not establish a standard of care.

I earlier said the answer is a qualified no because the court said there was not a standard of care that a helmet should be worn. Of course, there is now a helmet law in Maryland. But this appears to be dicta given the core of the court’s holding that the failure to wear a helmet does not go to the question of the standard of care.

A related question is whether this evidence could be admitted under the doctrine of avoidable consequences. Similar to the contractual rule of mitigation of damages, if some of those damages suffered by the Plaintiff could have been avoided by compliance with the appropriate safety requirements, the damages that could have been avoided are reduced from the recovery.

The Court of Appeals in Rodgers considered this issue as well. The court determined that the doctrine of avoidable consequences applied only to conduct that occurred after the tort (again, analogous to mitigation of damages). The court also cited a North Carolina case with approval that articulated that it also would not apply the doctrine of avoidable consequences because it would (1) not ask jurors to parse damages because this would invite verdicts on prejudice and sympathy contrary to the law, (2) create 'unnecessary conflicts in result,' and (3) degrade the law by reducing it to a game of chance. (I frankly do not understand how the latter two factors apply to the doctrine of avoidable consequences.)

The arguments on this helmet issue are very similar to the arguments on the failure to wear a seat belt issue, which was addressed in an earlier blog post.

Here is how a few other jurisdictions have addressed this issue:

Continue reading "Motorcycle Accidents: Is Failure to Wear a Helmet Contributory Negligence in Maryland?" »

Maryland Governor Robert L. Ehrlich Jr. appointed to the bench three Baltimore City Circuit Court judges yesterday:

*Yvette M. Bryant, an insurance defense lawyer at the firm of Bryant, Karpinski, Colaresi & Karp. Judge Bryant attended Towson State and the University of Maryland School of Law. She was admitted to the Maryland bar in 1986.

*John A. Howard, a Towson attorney at the firm of Sagal, Cassin, Filbert and Quasney, P.A.

*Timothy J. Doory, a Baltimore City District Court judge since 1996. Judge Doory attended St. Mary’s College and the University of Baltimore School of Law. He was admitted to the Maryland bar in 1974.

These judges replace the void left by the retirement of Judge Thomas E. Noel and Judge Bonita J. Dancy, and the unfortunate death of Judge Stephanie L. Royster. The court could use the judges: Baltimore City Circuit Court handled 64,926 criminal and civil cases last year, the most of any jurisdiction in Maryland.

The big news in Baltimore was that Governor Ehrlich also appointed Christopher Panos, a special master in Baltimore City Circuit Court’s family division, to the Baltimore District Court bench. This is a big story because Judge Panos is openly gay. My two cents: I look forward to the day when this is not a story. I’m convinced this day will arrive but we are clearly not there yet.

See also More on Judge Panos Nomination

See also New Judges in Baltimore City and P.G. County (January 11, 2007)

In a comment to my May 22, 2006 post on giving recorded statements to insurance companies, Atlanta personal injury lawyer Ken Shigley makes a great point about how lawyers can knock insurance companies off their moral high ground when an injury victim's car accident lawyer refuses to give a recorded statement. In the same way that innocent people accused of a crime feel compelled to talk to police because they do not want to look like they have something to hide, personal injury lawyers tend to feel a little uncomfortable when refusing to allow a recorded statement. The refusal makes the lawyer feel like he or she has something to hide, even when there is nothing to hide. Every lawyer (okay, most lawyers) wants to be a straight shooter, willing to lay their cards on the table. But giving a recorded statement is simply against the attorney's client's interests, even when the attorney knows that the client was not at fault for the accident and has been seriously injured in the car accident.

Instead of refusing the request, Ken suggests that personal injury lawyers offer that both parties meet to give recorded statements. The insurance adjuster invariably has to refuse the request because it is against company policy to allow for a recorded statement. Ken points out the end result is the same but it knocks the insurance company off its high horse and makes the lawyer “feel good.”

This might be an obvious point to some, but I am asked for a recorded statement several times a week, sometimes (but not usually) with a condescending "what does your client have to hide?" tone, and have never thought to give this response. I literally just used it with a Nationwide adjuster about 10 minutes ago.

By the way, I am glad to see that Ken is a reader of the Maryland Injury Lawyer Blog. I am a regular reader of his outstanding blog.

Miller & Zois is looking to hire at least two paralegals. Our law firm is looking for people with:

1. Legal experience, preferably in personal injury;

2. Attention to detail;

3. Good people skills;

4. Ability to work well with a great team of people; and

5. Character.

We have a wonderful state-of-the-art office, individually assigned and free garage parking, the latest technology available, competitive salaries, and a great team of motivated, hard working people who care about our clients and one another. If you are interested, you can (1) fax your resume to 410-760-8922, (2) call 800-553-8082, or (3) email me at ronmiller@millerandzois.com.

Our law firm expects to hire another Maryland lawyer at the end the summer/early fall after we have brought on two more paralegals. When we begin interviewing for this position, I will make an announcement on this blog.

Earlier this month, Governor Robert L. Ehrlich, Jr. elevated the Honorable Albert Willis Northrop to the Circuit Court for Prince George’s County. Judge Wills had been a District Court judge in P.G. County since he was appointed by Governor Parris N. Glendening on January 3, 2003. Prior to that, he was an Orphans' Court judge in P.G. County from 1986-2002. Judge Willls will be succeeding Judge James J. Lombardi, who retired in March 2006. He will serve until November 2008, when he will stand for election to a full 15-year term.

In his blog last year, Evan Schaeffer attached an article by Chicago attorney Paula E. Litt titled "Tips for Making Damages Testimony Come Alive." Ms. Litt's article offers twelve tips: (1) Speak plainly; (2) Establish credentials wisely; (3) Tell a good story; (4) Play from higher ground; (5) Show pictures; (6) Get the expert moving; (7) Use examples; (8) Keep it simple; (9) Be enthusiastic; (10) Don't get caught short; (11) Know your expert; and (12) Don't underestimate the jury.

Ms. Litt handles mostly copyright and insurance coverage cases so some of the advice seems tailored toward business litigation (it would be odd for an accident attorney to "be enthusiastic" when discussing with an expert the loss of future earnings of a father who was killed in a car accident). I also do not agree that attorneys should assume that the jury knows as much about the damages as the lawyer does, which she articulates under the otherwise sound notion of not underestimating the jury.

The only other "problem" with this article is that most of her sound advice is really directed to the expert, not the lawyer calling the expert to testify. As much as we would sometimes like to, we cannot change our witnesses.

This leads me to economic experts. The problem with economists is that you typically have only a handful of economists in your jurisdiction who: (1) can explain these dry issues to a jury in a meaningful way, and (2) are willing to testify. The few economists who do testify, testify way too often, which hurts their credibility with the jury.

In a typical personal injury trial for my law firm, our lawyers call the injury victim's treating doctors, who cannot be attacked for financial bias. In contrast, the defense lawyers typically use a hired gun medical expert who essentially testifies for a living. Under this scenario, I like my chances with the treating doctor over the hired gun expert who has testified for the same insurance company on scores of other occasions.

But if the personal injury lawyer brings an economist to trial who also has a hired gun flavor to him or her, it bleeds the integrity of the lawyer's case. But if the attorney needs an economist to put on the evidence, what choice is there? Perhaps the answer to this question is another question: does the personal injury lawyer in Maryland even need to call an economist at trial? I will answer this question in an upcoming post.

My June 8, 2006 blog post on the Maryland Court of Appeals' opinion in Harleysville Mutual Ins. Co. v. Zelinski generated a good discussion in the comments section by a few Maryland lawyers with experience in personal injury cases in Hartford County and Cecil County. It is interesting reading these comments from Maryland lawyers with different perspectives on these venues.

Our lawyers have analyzed on our website a number of Maryland jurisdictions. To see the discussion of these jurisdictions, click on the jurisdiction of interest below:

Anne Arundel County

Baltimore City

Baltimore County

Calvert County

Howard County

Montgomery County

Prince George's County

We will continue to add additional counties to the website. I will announce the additions on this blog as they occur. Because we recently added an office in Salisbury, Maryland, the next county we will provide analysis for will be Wicomico County.

Earlier this month the Maryland Court of Special Appeals issued its opinion in Smith v. State Farm, which provides a great discussion of the issues related to venue selection in Maryland. I will summarize this case in an upcoming post.

Regular readers will notice the blog has an updated look. You can expect some further revisions, but we are 98% of the way there. The Miller & Zois website also has an updated look. Final revisions to both the blog and the website are coming next week. We hope you like both. Thanks to Tim Stanley at Justia and Tom Fitzgerald at Certified Computer Experts for all of their hard work.

In other Miller & Zois news, I learned this week that I was named one of forty "Legal Elite" in Maryland by SmartCEO Magazine. Earlier this year, Baltimore SmartCEO contacted thousands of Maryland attorneys and asked them to assess their peers and colleagues and nominate those Maryland attorneys whom they believe to be the top attorneys in Maryland. Each attorney was scored based on the number of nominations received. Votes received from lawyers in other firms were given greater weight than votes received from lawyers in the same firm. Nominations were verified and discussed and 40 attorneys emerged as the first class of Maryland’s Legal Elite. These Maryland lawyers will be recognized in SmartCEO's August edition.

I do not know who else was chosen this year, but last year the lawyers were almost exclusively from Maryland's largest law firms; fifteen of the forty Maryland lawyers selected were from Piper and Venable. I am very happy and flattered to be included on this list, which I think recognizes the good work that our personal injury lawyers are doing for our clients.

The St. Petersburg Times reported last week that a young pregnant woman died from medical malpractice at a Florida hospital. The woman, who was seven months pregnant, came to the South Florida Baptist Hospital with labor pains. The nurse gave her four times the ordered dosage of magnesium sulfate. The doctors at the hospital realized the error, but it was too late to save her life. Miraculously, her son survived and is doing well in neonatal intensive care at the hospital.

My first reaction to this story is not as a lawyer, but as an expectant father of twins. These kinds of stories keep you awake at night. But I was impressed that the hospital’s chief operating officer at a press conference did not equivocate as to the cause of the woman's death, attributing it to the nurse's medical malpractice because she administered the wrong dosage. It is a refreshing break from the usual refusal to take responsibility, no matter how egregious the facts, that we too often see from medical malpractice lawyers representing the doctors and hospitals in most medical malpractice cases.

One time consuming part of answering interrogatories is the actual typing input of the interrogatories. From a staffing standpoint, it is time consuming. Typically, our paralegals will scan the interrogatories as opposed to typing them from scratch. Most defense lawyers send out the same interrogatories in car accidents or truck accidents, and most lawyers we face we see regularly, so we simply pull up their old interrogatories and change the answers.

Today we received interrogatories in a truck accident case from a lawyer we have never had a case against in the past. One of our paralegals simply called the lawyer and asked if she would email the interrogatories, which she gladly did immediately.

From now on, we will give this a try when we face a new lawyer. Conversely, for all of you Maryland lawyers out there defending personal injury cases, if you ask us to email our discovery to you, we would be glad to do so.

For more information on drafting and answering interrogatories in Maryland, click here.

Back in March I reported data I found in Metro Verdicts Monthly research that I thought would be of interest to personal injury lawyers in Maryland on the value of fractured shoulder injuries. Yesterday I received the new issue of Metro Verdicts Monthly that provided the median settlement value for rotator cuff injuries in Maryland, Virginia and the District of Columbia:

Washington D.C.: $136,200

Virginia: $ 26,250

Maryland: $ 45,000

The rotator cuff is a composite of four major muscles and tendon fibers that blend with the upper half of the capsule of the shoulder joint. In the experience of our lawyers, most rotator cuff injuries in car and truck accidents occur in side collision or "t-bone" accidents.

Of course, rotator cuff injury is a relative term with varying degrees of severity, from strains of the rotator cuff that result in minor limitation in the motion of the shoulder to severe ruptures of multiple muscles or tendons.

Interestingly, in 1999 Jury Verdicts Research provided data for rotator cuff injury cases that went to trial. They found that the median final demand was $85,000 and the median final offer was $25,000. This is a pretty wide range, obviously, perhaps underscoring the difference amongst the lawyers involved as to the severity of the rotator cuff injury. The study also found that the median award was $50,000, which leads one to believe that both the Plaintiff's and Defendant's lawyers were often way off the mark on the real value of the case.

Related Posts:

Rotator Cuff Verdicts Nationally (value of rotator cuff injuries nationally shows values of rotator cuff personal injury cases are on the rise)

A Virginia lawyer wrote me last night asking about a client that was injured in a car accident in Maryland. Apparently, the car accident was a by-product of road rage that reached a point where the Defendant arguably intentionally rear ended the Plaintiff’s car. The Defendant apparently admits positioning his car to retaliate against the Plaintiff but claims the contact was unintentional. The insurance company is refusing to defend or indemnify the case because it claims the Defendant’s recorded statement to them admits that the conduct was intentional.

The lawyer’s question is whether uninsured motorist coverage is available to this Plaintiff in Maryland. Assuming that the Plaintiff did not intentionally cause the car accident, the answer is yes. Section 19-501(c) of the Maryland Annotated Code of Insurance requires only that the Plaintiff did not intentionally cause the car accident.

Continue reading "Is Uninsured Motorist Coverage Available in Maryland for an Intentional Car Accident?" »

On Wednesday, June 21, 2006, at 4:45 p.m. in the Prince George's County Circuit Court Law Library, Judge Julia B. Weatherly and Judge Thomas P. Smith (an article on discovery written by Judge Smith was covered in an earlier blog post) will speak. The topic of the talk is discovery and continuance practices in Prince George's County.

I got a page on Thursday night during the Heat-Mavericks game. A woman called with a medical malpractice case, alleging negligence in October 2001. The woman had surgery and continued to experience problems after the surgery. The doctor continued to treat her for two years for the complications, telling the woman that they were expected risks of the procedure. After a second opinion earlier this year, she came to believe that the complication was not a known risk of the procedure and was the result of medical negligence.

I do not think this potential medical malpractice client has a case on the merits because I believe that the complication is in fact a known risk of the procedure. But her case raises the legal question of whether a medical malpractice lawyer in Maryland (or other states with a similarly worded statute) could bring an action on her behalf. To answer the question, you must read Maryland Courts and Judicial Proceedings § 5-109, the Maryland statute that addresses limitations in medical malpractice cases.

The statute of limitations in medical malpractice cases in Maryland is five years from the time the injury was committed or three years from the date the injury was discovered, whichever is shorter. This law imposes a sort of statute or repose on medical malpractice cases in Maryland. But what sort of claims can be brought that are more than three years old but less than five?

Continue reading "Maryland Medical Malpractice Statute of Limitations" »