Maryland Injury Lawyer Blog

Metro Verdicts Monthly's graph this month is non-fatal settlements and verdicts in Maryland, the District of Columbia, and Virginia in premises liability cases since 1987. The median non-fatal premises liability case in Maryland was $69,000. The recoveries in Virginia and the District of Columbia are slightly less, $50,000 and $65,000, respectively.

As I have said before, I love seeing these different verdicts in Maryland each month. It is always interesting to see different lawyers that you know and see what kind of cases they had and how they fared. What diminishes the value of Metro Verdicts, in my mind, is the turn around time. I have a case in this month's edition that I tried 6 months ago. It does not diminish the quality of the information but in the Internet era, it is not quite as enjoyable to read stale news.

My partner, Laura Zois, conducted a videotape trial cross examination of frequent flyer defense medical expert, Dr. Robert O. Gordon, a doctor who makes a great deal of money working for insurance companies generally and, frequently, for State Farm. During his examination, he spewed out a whole host of inappropriate and factually incorrect statements. Here is an example:

Q. And why not, Doctor? Would you explain the reasons for your opinion?

A. Well, first of all, there was nothing in the emergency room report, or in the report of the doctors that he was sent to by his attorney, that indicated that --

The client's testimony was that he went to his family doctor first and was referred by his family doctor to the orthopedic surgeon. But Dr. Gordon has been doing this so long he assumes that someone did. The first thought is to file a motion to strike this testimony. But doesn't his incorrect statement just underscore that he is not only a testifying doctor but an advocate? Isn't it better that a jury sees this?

Here is another example:

A. No. Why don’t you ask -- this Maryland Orthopaedics how many patients they see at the request of attorneys every day?

A. If you want to get rich doing -- . . . -- medical legal work, that’s what you do.
Plaintiffs move to strike this testimony because

Ignoring the rich irony of a man making hundreds of thousands of dollars testifying, Dr. Gordon's lashing out at another health care provider again underscores he is an advocate for the insurance companies. Why not let the jury hear that?

Here's a few more exchanges:

Q.Okay. Who do you have as your staff?

THE WITNESS: -- charge for things called therapeutic exercises. And what some of these places do is they -- and particularly the doctor owned facilities -- is they buy an exercise bicycle and they’ll put the patient on an exercise bicycle and they’ll charge them “therapeutic exercise.” It just means riding on an exercise bicycle, which -- which is a bit -- is a bit preposterous. I mean, they get - the bicycle can be paid for in a week and then the rest of it is just -- that’s why doctors who do this kind of work can be on the golf course and making a fortune.

Isn't this just incredible? After this, Dr. Gordon may as well come up to the lectern and try the case along with defense counsel. It is not that far of a stretch after this testimony. You can see the entire deposition transcript here. It makes for a great read.

This was not a large case. It was originally a District Court (small claims) case that got bumped up to Prince George's County Circuit Court because the Defendant filed for jury demand. A Prince George's County jury awarded $22,000 which was more than twice the offer State Farm made. Did Dr. Gordon's testimony figure into the verdict? Who knows? But the point is that many personal injury lawyers would have sought to exclude that testimony simply because they could. It is hard for lawyers to resist fighting a fight the lawyer knows he/she can win. Instead, it is better to figure out first whether the otherwise inadmissible and over reaching statements hurt or help you case. In this particular case, I think the testimony helped our clients' case (and amused the jury from an otherwise boring video of the doctor's testimony).

Evan Schaeffer's Illinois Trial Practice Weblog blogs today about a post in the Psychiatrist Blog indicating that witnesses are highly suggestible depending upon the words lawyers use in describing an auto or truck accident. I find the psychology of this very interesting and this blog post makes for a good read. The take home message: words matter.

I wrote a blog post for the Trial Lawyers Resource Center discussing this same issue of the words selected when it comes to describing a personal injury victim's injuries. You can find that blog post here.

The National Law Journal reports that a small number of personal injury lawyers are relying on handwriting experts to help the lawyers in selecting juries. Handwriting analysis uses various clues, including the amount of pressure used, the size and angles of the letters, and spaces between words to paint a picture of a potential juror.

Maryland personal injury lawyers have no opportunity to see the handwriting of prospective jurors. But personal injury lawyers in other jurisdictions have the opportunity to review juror questionnaires that would provide a handwriting analysis. I remember reading somewhere that handwriting that is flamboyant and flowery would be preferable to the personal injury lawyer's client than tight, concise and analytical. (I'm not sure what someone would make of mine because it is illegible!) But if I practiced in a jurisdiction where I had the opportunity to see the jurors handwriting, I would want to see a study really on point before spending a lot of resources analyzing their handwriting.

Phillip J. Closius was named as the new dean of the University of Baltimore School of Law today. Dean Closius is the former dean of the University of Toledo College of Law. He is a former practicing attorney who teaches and conducts scholarship in the areas of Constitutional, First Amendment and Sports Law.

Dean Holmes made a lot of progress in his tenure at the University of Baltimore. Hopefully, Dean Closius can build off Dean Holmes' work to take the University of Baltimore School of Law to the next level. I started on the adjunct facility at UB in 1998 and now teach at the University every semester. I have seen a lot of progress in recent years in the quality of students and the resources we have and I am very hopeful that the new dean can keep this ball rolling.

CNN reports on an 18 month investigation into minor-impact soft-tissue injury crashes around the country. The report confirms what auto accident lawyers in Baltimore and around the country have known for quite some time: the insurance companies defend these cases not based on the value of the cases, but in an attempt to discourage auto accident lawyers and victims from bring a claim.

You can read more here about Colossus, the computer system discussed in the article that directs the process of making offers in auto accident cases. Since the mid-1990s most of the major insurance companies - led by the two largest, Allstate and State Farm - have adopted a tough take-it-or-leave-it strategy when dealing with most auto accident cases. The result of this strategy has been billions of dollars in profits for insurance companies and little, if anything, for the public, according to Jeff Stempel, a University of Nevada insurance law professor. Stempel further stated that “We can see that policyholders individually are getting hurt by being dragged through the court on fender-bender claims, and yet we don’t see any collateral benefit in the form of reduced premiums even for the other policyholders." He goes on to say that he thinks that "this kind of program is in my view institutionalized bad faith.”

My last blog entry was a rambling diatribe about how desperately we need first party bad faith in Maryland. But I do not agree with Professor Stempel that insurance companies' decisions to aggressively fight claims is tantamount to bad faith in every case. The insurance companies have a right to take a tough posture, particularly in the third party context. Our personal injury lawyers' job is to fight back when they do. I do not think we deserve a free ride in third party cases.

In Maryland, in cases where the policy limit may be exceeded, most insurance companies will notify their insured that there is a risk that the verdict will exceed their policy limit and promise to pay any excess verdict. (Plaintiffs' lawyers nickname the letters based on the insurance company slogans: you would get a "good neighbor" letter from State Farm; a "good hands" letter from Allstate.) So my feeling is that in the third party context, if the insurance company is willing to pay any excess judgment, they should be able to do whatever they want.

Where injustice does come into play in Maryland in auto accident cases is uninsured motorist cases. Today, insurance companies are not obligated and do not act fairly to their own insureds in Maryland. This is where I believe that insurance companies should be obligated to take off the gloves and deal with their customers in an even-handed manner. They are required to do this in most states. Hopefully, they will soon be required to do so in Maryland. If you agree with me, write your state senator and local delegates as this battle will be waged in the Maryland legislature in Annapolis in the upcoming months.

Yesterday my partner, Laura G. Zois, tried a wrongful death auto accident case in Prince George's County against Allstate. The jury awarded our client $8 million. Allstate made no offer to resolve the case.

Of course, we cannot collect the entire amount not only because of Maryland's cap on pain and suffering damages, but also because there is no first party bad faith on uninsured motorist claims in Maryland. I understand that a bill has been introduced in the Maryland General Assembly to bring first party bad faith to Maryland.

I try very hard to keep the "insurance companies are pure evil" sentiment out of the Maryland Personal Injury Lawyer Blog because I think simplistic generalizations defeat real discussion of the issues. I teach Insurance Law at the University of Baltimore Law School and try even harder there to remain balanced in my approach to the class.

But I have a difficult time presenting a balanced view of the need for first party bad faith in Maryland, and the abuses personal injury lawyers and their clients must endure from insurance companies in the absence of first party bad faith. Approximately thirty-five other jurisdictions appear to recognize a first party bad faith cause of action. See Bad Faith Actions, Liability and Damages, § 2.22, at 65.

Maryland needs first party bad faith not only for auto and truck accidents but also other kinds of first party insurance, particularly those types of insurances where the insured is dependent on prompt receipt of the insurance proceeds. If you have just lost a high income producing loved one or your house burns down, the absence of bad faith allows the insurance company to drive a hard bargain in settlement negotiations, regardless of whether there is a good faith reason to deny the claim. Who is stopping an insurance company in Maryland from offering 50% of the insurance proceeds to a needy widow even if the loss is clearly covered by the policy?

Of course, not every insurance claim denial supports a cause of action for bad faith. But Maryland should adopt the majority rule that in addition to the situation where an insurance company knows it had no legitimate basis for denying the claim, an insurer is also liable when it recklessly disregards the rights of its insured.

There is a bill before the Maryland legislature this year to bring first party bad faith to Maryland. The bill lacks the teeth of punitive damages but it is certainly a step in the right direction.

The Maryland legislature is considering joining the rest of the civilized world - okay, I'll kill the hyperbole - the vast majority of jurisdictions in this country by adopting a comparative negligence standard in Maryland. The contributory negligence standard we currently have in Maryland is harsh to injury victims and creates real challenges for Maryland personal injury lawyers seeking justice for their clients. Under contributory negligence, the accident or medical malpractice victim's failure to exercise due care which contributes even in the slightest way to plaintiff's injuries is an absolute bar to recovery. Under this rule, even if the jury believed the plaintiff was only 1% at fault for his/her injuries, the plaintiff would be completely barred from recovering for those injuries.

All but 5 states have moved into the modern era and adopted contributory negligence. It would be a blessing for injury victims in Maryland if Maryland dropped that number down to 4.

The Maryland Gazette posted an interesting - albeit pro-business - article on Friday on this issue of Maryland reconsidering contributory negligence.