Maryland Injury Lawyer Blog

Prince George’s County recorded 285 bicycle and pedestrian deaths between 1994 and 2003, far more than Montgomery County, Fairfax County or the District of Columbia, according to a report by the Metropolitan Washington Council of Governments. More pedestrians and bikers are killed Prince George’s County than in any other jurisdiction in the region.

Every year approximately 5,000 pedestrians are killed in motor vehicle collisions in the United States. There a many possible causes for bicycle and pedestrian deaths but our personal injury lawyers too have noted a high number of pedestrian deaths in Prince George's County, one of which Rod Gaston from our office will be taking to trial this spring in Prince George's County Circuit Court. Flaws in road design contribute to many of these deadly collisions but the primary culpability usually rests with the driver or the pedestrian.

Metro Verdicts Monthly's graph this month is wrongful death median settlements and verdicts in Maryland, the District of Columbia, and Virginia. The average wrongful death settlement in Virginia and the District of Columbia is $800,000 and $575,000, respectively. Maryland lags behind at $500,000.

Maryland verdicts usually compare favorably with Virginia. Why the disparity? Virginia's cap on non-economic damages is limited to medical malpractice. Maryland's cap applies to all personal injury cases.

No new post on the Maryland Personal Injury Lawyer Blog today. But I did just post a blog for the Trial Lawyer Resource Center about questioning at deposition adverse witnesses in auto and truck accident cases who claim your client was speeding. To access that blog post, click here. To see sample deposition transcripts in auto accident, truck accident, and medical malpractice cases, click here.

The New York Times reported on Saturday that Genentech posted a letter on its Web site warning eye specialists of its new eye drug Lucentis, which may increase the risk of stroke for those on Lucentis. Genentech found that patients taking their marketed dose of Lucentis were much more likely to suffer a stroke than patients taking a lower dose.

Some doctors remain undeterred. “Right now, it will have no impact on my use of Lucentis,” a doctor at the Palmer Eye Institute of the University of Miami, wrote to the New York Times in an e-mail message. “When given a choice between a high likelihood of blindness or a 1 percent risk of stroke, I think most patients will choose their vision.”

I don't know enough about Lucentis to say whether I think this doctor is correct. The problem is, I don't think Lucentis' manufacturer knows either.

A Philadelphia jury found that Wyeth's hormone replacement therapy Prempro was the cause of an Arkansas woman's breast cancer and awarded the victim's family $1.5 million. The jury found that Wyeth was negligent in failing to provide adequate warnings about the risk of breast cancer associated with the use of Prempro.

The jury is expected to return this week with a decision on punitive damages. In Maryland, under Owens-Illinois, Inc. v. Zenobia, 325 Md. 420 (1992), a landmark Maryland Court of Appeals' opinion, punitive damages in this case against Wyeth for failing to warn about the risks of Prempro would have to be supported by a showing that the conduct of Wyeth was malicious, or the result of evil motive, or ill will. There are no such allegations in the Prempro litigation.

A fire broke out at the Prince George's County courthouse on Wednesday, destroying a large section of the 126 year-old building. Two floors of courthouse were damaged. The old courthouse is connected to a modern wing by a series of corridors.

This is the second time the courthouse has been on fire in a little over two years. The P.G. Courthouse was gutted by fire in November 2004, just months before the courthouse was scheduled to open after a $25 million renovation. It is absolutely amazing this happened again. No word yet on the cause of the fire.

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Evan Schaeffer's Illinois Trial Practice Weblog has a link to a company that provides online mock juries. I find the idea fascinating. Evan correctly points out that a virtual mock jury does not give the lawyers the benefit of the give-and-take argument among jurors that is meaningful to the process. I also think you lose something using jurors with different demographics. If a lawyer is going to try a case in Baltimore City, the opinion of a woman in Omaha might not be helpful. In fact, the fact that all of the jurors are somewhat "Internet savvy" might make them unrepresentative of certain jury pools. Still, for the $1500 cost, I can see where some lawyers looking for information as to how jurors might respond to certain issues might gain some benefit from this process.

One thing is for sure: the Internet will continue to change the practice of personal injury lawyers in ways that we cannot currently contemplate.

If you are a Maryland personal injury lawyer handling motor vehicle accident and/or medical malpractice cases in Maryland, you are missing out on an incredible resource if you are not a member of the Maryland Trial Lawyers Association. Our lawyers rely on resources we receive from the Maryland Trial Lawyers Association almost daily in practice. If you are a personal injury lawyer in Maryland and are not a member of the Maryland Trial Lawyers Association, do yourself a favor and contact Laura G. Zois at 410-553-6000. Laura is the Chairperson of Maryland Trial Lawyers Association Membership Service Committee.

The Baltimore Sun writes today about a half-mile stretch on Tufton Avenue in Baltimore County horse country that has been the site of six fatal car and motorcycle accidents since 2003. Many of the victims' families have complained about the sharp curve in the road. I grew up in the country and anyone who has driven on country roads in Maryland knows there are some long and winding roads with some tight turns out there. But practically, there are not the resources to rebuild every road with a tight turn in Maryland. Most of these acccidents had some of the usual leitmotifs of fatal accident cases: alcohol, youth and motorcycles.

What is the point of this post? I am not sure, exactly. Road engineers have looked at the road and found it safe. I suspect it is just a coincidence that so many fatal accidents have occurred on this particular strip of road. But this article reminds you of just how risky motor vehicle travel can be, and how important it is to drive carefully and defensively. I know how trite that sounds, but it really is true.

Last month, I wrote about Club One Fitness, a health club in the Severna Park/Millersville area in Anne Arundel County. If you would like to see the club, click here which takes you to a youtube.com video of the facility. I've been in hundreds of health and fitness clubs and I think this club has the best look and feel to it I have ever seen. In the video, I'm the guy who shoots - and makes I might add - the set shot on the basketball court.

Sorry for the off topic post. I will be back later today with a personal injury related post.

Last week, I wrote about the Consumer Reports article on failed infant car seats. As I wrote the post, my wife was spending a few hundred dollars on new car seats for our 3 month-old twins. Sure enough, Consumer Reports retracted the article this week after receiving data from the National Highway Traffic Safety Administration who reported the car seats did quite well at the correct impact speed.

In their tests, Consumer Reports simulated impacts at more than 70 miles an hour when they were supposed to simulate an impact at 38 miles an hour. At the time, I thought it was probably silly to buy new car seats particularly given the data that was offered on the side impact risk to infants. But how can you argue against taking the safest possible course for your kids? You can’t. Now, if you are a lawyer out there considering a class action against Consumer Reports, you have your first client. I'm kidding, that would be a completely frivolous lawsuit, in my opinion. But do not be surprised to see one.

Speaking of frivolous lawsuits, a personal injury attorney announced in news conference in California that the he was filing a wrongful death case on behalf of the family of a 28 year-old woman who died in a water drinking contest on a radio show. The attorney said the wrongful death suit would name the radio station as the defendant, presumably for holding the contest in the first place. I do not think this is a meritorious case nor do I think it helps the cause of personal injury lawyers and their clients. I will offer more thoughts on this case this weekend.

I received an email from a personal injury lawyer in Baltimore last night asking about a liability dispute case the lawyer has. I thought I would respond to him in today's blog.

This lawyer's client filed suit pro se for his property damage claim, which will be heard next month in Baltimore City District Court. The lawyer knows that you can settle a property damage claim and later file an action for bodily injuries. See Maryland Insurance Article Section 12-306(2). So the lawyer's preference is to stay out of the property damage case and let the client move forward on his own.

But there is a res judicata effect to a judgment on the merits of the property damage case. If the client gets a verdict in the property damage case, his personal injury case will be barred (assuming there is no jurisdictional barrier to prevent the plaintiff from bringing all of his claims in the property damage case).

The rule against splitting a cause of action does not mean that a plaintiff may never split a cause of action. It means that if a cause of action is split, certain consequences may follow. A person involved in a motor vehicle accident may incur both personal injuries and property damages. This plaintiff may bring an action for one aspect of damages and not the other, but the prosecution of that action to judgment will preclude a subsequent action for the remaining type of damage. See Jones v. Speed, 320 Md. 249, 259 (1990).

This prohibition against splitting a cause of action is because Maryland courts want to avoid the costs and expenses that will come with more than one lawsuit on the same set of facts. While I am sure this is not the news this lawyer wanted to hear, this rule makes sense. Accordingly, the lawyer's best option now is to file a motion in the client's property damage case seeking to dismiss the case without prejudice. Another option would be to file a case in Baltimore City Circuit Court along with a motion for consolidation.

Lawyer who practice civil law in the District Court for Prince George’s County are invited to meet with judges of the District Court, the Clerk of the District Court, the supervisor of civil cases and other court personnel in order to make suggestions on how our operation may be made more efficient, what deficiencies may exist, and for new ideas to improve the way in which civil cases are currently being handled in Prince George’s County.

The meeting will be held at 3:00 p.m. on Wednesday March 7, 2007 in Courtroom 375B, Courthouse, Upper Marlboro.

The Maryland Court of Appeals affirmed today Munday v. Erie, an uninsured motorist case involving a twenty year-old Prince George's County man who had been living with his grandmother in Waldorf, Maryland (Charles County) for almost a year. The Maryland Court of Special Appeals found that he was not a resident relative of his parents who lived in Lusby, Maryland. The Plaintiff's Maryland personal injury lawyer had sought a finding that his parents' uninsured motorist coverage with Erie Insurance could be applied to his auto accident case.

As I wrote last year in analyzing the Maryland Court of Special Appeals opinion, while our auto accident lawyers would certainly prefer a different result, this decision by the Maryland appellate courts is in line with the language of the insurance policy at issue and Maryland law on who is a resident relative.

A New Jersey appellate court reinstated a lawsuit seeking to force Merck to fund a medical monitoring program for former patients on Vioxx. The screenings are to detect potential heart problems caused by Vioxx. According to the ruling, the decision to dismiss the case was "premature" and did not allow plaintiffs the opportunity to prove legally accepted claims.

You might think that Merck might accept some responsibility for this debacle and support the idea of a medical monitoring program for people who want to get medical attention to make certain they were not injured by Vioxx. Apparently not.

As he is walking out the door, soon to be former Governor Ehrlich appointed to the Baltimore City Circuit Court bench George L. Russell, III and Pamela J. White. I believe Judge Russell was with the U.S. Attorney's Office. Before that, he worked for Peter Angelos' office. Judge Russell's father, George L. Russell, Jr. is a legendary Maryland attorney. He was Maryland's first African-American to be a Circuit Court judge as well as the first African-American on the Maryland Court of Special Appeals.

Judge White is a former Maryland State Bar Association president who was a partner at Ober-Kaler, where the Governor himself once worked. Her resume is on Ober-Kaler's website (it is as long as your arm).

Governor Ehrlich also appointed A. Michael Chapdelaine to the bench in Prince George's County. I am told that Judge Chapdelaine was a well liked domestic relations master in Prince George's Circuit Court. Prior to becoming a master, he was an lawyer in Bowie concentrating his practice on family law.

When I try a case with another lawyer (usually my partner, Laura Zois, if we are trying a large case), I always want to do the opening statement and direct examination of our client because I believe these are the most important components of a trial. Particularly the opening statement. I remember once seeing data that said that 90% of cases are decided in opening. I do not believe it is actually this high, but that number has always stuck in my head.

It is a great marriage because Laura believes you win by effectively cross-examining defendant's expert and delivering an effective closing statement. When we have been successful trying a case, we both claim (to ourselves, of course) credit for the victory. It works out great.

Accordingly, I am going to blog a bit more over the next month or so about opening statements and direct examinations, starting today with direct examinations generally. I was looking today at Ralph Adam Fine's The How-To-Win Trial Manual (Juris 3d rev. ed. 2005) and found an improvement I need to make in my direct examinations.

To illustrate his point, Fine uses an example from John Grisham's The Runaway Jury (a really stupid but entertaining movie), picking up the story where plaintiff's personal injury lawyer is examining the witness, a former high-level tobacco-company employee, about a long-missing document that demonstrated the tobacco companies in the book/movie knew that nicotine was highly addictive.

"Q: And the next paragraph?"

"A: The writer suggested [to the president] that the company take a serious look at increasing the nicotine levels in its cigarettes. More nicotine meant more smokers, which meant more sales, and more profits."

Powerful testimony, but Fine contends that many of the jurors will miss all or some of it because of the call of the lawyer's question, in this case "And the next paragraph?" But the manner in which many personal injury lawyers ask this question on a direct is by asking "What happened next?" type questions. Instead, he argues that lawyers should break down the components instead of letting the witness dump them all on the jury in one large package because not all jurors are paying attention at every moment. Instead he suggests questions such as:

Q: Did the writer of that memorandum suggest that the company do something about the nicotine levels in the cigarettes it was making?

Q: Did the writer suggest that the nicotine levels in the cigarettes be increased or decreased?

Q: Did the writer tell the company's president how increased nicotine levels would affect the number of people who smoked?

Q: Would increasing the nicotine levels in cigarettes mean more or fewer smokers?

Q: More smokers than if the nicotine levels were not increased?

Q: Would this mean more or fewer sales?

Q: Would this mean more or less profit for the company?

Q: Would the profits be substantial?

This accomplishes three things:

(1) The jurors will know the answer even before the witness responds. This will cement these building blocks of the lawyer's argument in the jurors' minds, without relying on their own assessment of the credibility of the witness.

(2) The logical connection between increased nicotine levels and higher profits is made in small, incremental steps. Every lawyer knows that jurors fade in and out, you do not want to sneak attack the critical points of your case.

(3) It allows the lawyer to repeat the juicy stuff that the lawyer wants to resonate with the jury.

I think lawyers elicit some answers on foundation that make a "what happened next?" question harmless and helpful for the flow of allowing the witness to get out what he/she has to get out. But the moral of what Fine is saying is when a lawyer's witness is spitting out the critical or even important testimony, the lawyer should make sure a carefully worded question (yet not leading) elicits that response that allows the plaintiff's attorney to underscore the testimony the witness is offering. I will be vigilant to make sure I do not make this mistake in my next trial.

A part of the reason for the need for "what happened next?" type questions is that the lawyer is not in rhythm with his/her client. The solution: get in sync. How? By listening to your high school coach, music teacher, etc. Practice, practice, practice. I have always been amazed at how few personal injury lawyers take the time to make sure their direct examination goes smoothly. The solution to the problem is to keep doing it until you both have a rhythm. "What happened next?" often comes as a result of both the client and the lawyer not being prepared to work together to tell their story. The client stops where the lawyer does not expect him/her to so the lawyer continues the story by asking a "what happened next?" type question. If you practice, it improves the flow and helps solve this problem.

Consumer Reports announced today that car seats for infants often fail to withstand the impact of auto accidents when a car is struck by another from the side. Of the models tested in simulations of such impacts, ten failed, some “disastrously,” according to the magazine's February issue.

The car seats are rear-facing models that are required in Maryland for infants up to 1 year old or about 22 pounds. Car seat manufacturers are required to test the seats for head-on accidents, but not for broadside crashes, which kill about 30 infants a year in the United States.

As I write this post, my wife is out purchasing new car seats for our almost three month-twins as I expect are a lot other people in Maryland and around the country today. The irony of all of this is that I love Consumer Reports, to the point where I rarely buy anything other than their top rated product. The car seats we have now are made by Britax, a product that Consumer Reports had previously rated, you guess it, number #1. Britax also failed the test.

I have encountered yet another spoliation issue in a truck accident case where defendant cannot produce their trucking log that was requested within six months of the incident. Federal regulations require commercial truck drivers to maintain their log for at least six months.

Unlike New Jersey and California, Maryland has no independent tort for negligent or intentional spoliation of evidence. But you can get in Maryland a spoliation instruction stating that the destruction of evidence creates a presumption that is unfavorable to the spoliator.

Obviously, in fairness to everyone, the best practice with respect to evidence in a case is to preserve all potential evidence until all legal proceedings have been concluded. The intentional or negligent destruction or spoliation of evidence threatens the integrity of our judicial system. As I have discussed previously on this blog, many truck drivers do not take these logs seriously. The practice of falsifying truck driver hours is an open secret in the trucking industry; truckers routinely refer to their driving logs as “comic books.” Fines are small and infrequent. The oversight from the Federal Motor Carrier Safety Administration is virtually nonexistent. The FMCSA does not have the staff to closely monitor 700,000 businesses and almost eight million trucks.

I cannot find a Maryland case on truck log spoliation although I found good cases in Arkansas and Georgia. See Goff v. Harold Ives Trucking, Inc, 342 Ark. 143 (2000); J.B. Hunt Transp., Inc. v. Bentley, 427 S.E.2d 499 (1992). But Maryland follows the general rule that the destruction or alteration of evidence gives rise to inferences or presumptions unfavorable to the spoliator. Unexplained and intentional destruction of evidence by a litigant gives rise to an inference that the evidence would have been unfavorable to his cause. Maryland law does not require a showing of bad faith to support this inference. Anderson v. Litzenberg, 115 Md. App. 549, 561-562 (1997) (case involving an accident caused by a dump truck tarp coming lose; from the destruction of the tarp there was a rebuttable presumption that should lead to an inference that the tarp would have revealed evidence unfavorable to the defendant). See also Larsen v. Romeo, 254 Md. 220, 255 (1969).

In truck accident and car accident cases, it is important for accident attorneys to pin down early in an investigation what evidence might be available that could be intentionally or inadvertently destroyed. In truck accident cases, this is the letter our truck accident lawyers send out.

The FDA last month began advising health care providers and patients about the results of new studies for Paxil (paroxetine) suggesting that the drug increases the risk for birth defects, particularly heart defects, when women take it during the first three months of pregnancy. Paxil is approved for the treatment of depression, anxiety and several other psychiatric disorders. FDA is currently gathering additional data and waiting for the final results of the recent studies in order to better understand the higher risk for birth defects that has been seen with Paxil.

The FDA is advising health care professionals to discuss the potential risk of birth defects with patients taking Paxil who plan to become pregnant or are in their first three months of pregnancy. Health care professionals should consider discontinuing Paxil (and switching to another antidepressant if indicated) for these patients. In some patients, the benefits of continuing Paxil may be greater than the potential risk to the fetus. The FDA is advising health care professionals not to prescribe Paxil to women who are in the first trimester of pregnancy or are planning to become pregnant, unless other treatment options are not appropriate.

The FDA is advising patients, among other things:

(1) Paxil should usually not be taken during pregnancy, but for some women who have already been taking Paxil, the benefits of continuing may be greater than the potential risk to the fetus;

(2) Women taking Paxil who are pregnant or plan to become pregnant should talk to their physicians about the potential risks of taking the drug during pregnancy;

(3) Women taking Paxil should not stop taking it without first talking with their physician.

The FDA reports that early results of two studies showed that women who took Paxil during the first three months of pregnancy were about 1.5 times as likely to have a baby with a heart defect as women who received other antidepressants or women in the general population. Most of the heart defects reported in these studies were atrial and ventricular septal defects (holes in the walls of the chambers of the heart). In general, these types of defects range in severity from those that are minor and may resolve without treatment to those that cause serious symptoms and may need to be repaired surgically.

Everything I have written above comes from the FDA. I have previously represented GlaxcoSmithKline in litigation involving Paxil and the question of whether Paxil can induce homicide/suicide in some patients. I have no inside knowledge about the question of whether Paxil causes birth defects. But if you are reading this looking for an attorney to handle your case, I will not take cases involving Paxil.

Happy New Year from the Maryland Personal Injury Lawyer Blog! We are looking forward to making this blog an even more useful resource not only for personal injury attorneys in the Baltimore-Washington area but throughout the country. If you are regular reader of the Maryland Personal Injury Lawyer Blog, let me know your thoughts on what you want to see it 2007. You can post a comment or email me at ronmiller@millerandzois.com

I wish everyone a happy and healthy 2007!