Maryland Injury Lawyer Blog

According to a The Federal Motor Carry Safety Administration’s 2006 report, there are approximately 141,000 truck crashes every year. In 77,000 of these truck accidents - more than half - fault was attributed to the truck driver. This is interesting because we have been getting data from the American Trucking Assns. and the Truckload Carriers Association for years telling us that the truck driver’s are rarely at fault in truck accidents. Yet this ostensibly objective study says just the opposite.

According to the FMCA 2006 report, the top 10 causes of truck accidents where the truck driver is a fault:

1. Prescription drug use (26%)

2. Traveling too fast (23%)

3. Unfamiliar with the roadway (22%)

4. Over the counter drug use (18%)

5. Inadequate surveillance 14%)

6. Fatigue (13%)

7. Illegal maneuver (9%)

8. Exterior distraction (9%)

9. Inadequate evasive action (7%)

10. Aggressive driving (7%)

Truck accident lawyers focus a lot of the fatigue issue. It is hard to go to a seminar for truck accident lawyers without hearing a lengthy presentation of fatigue. This study indicates that fatigue is less of a concern then some plaintiffs’ truck accident attorneys might have thought.

Of course, the Oliver Stone in me sees it differently. There are a lot more tired truck drivers on the road these days. The FMCA in 2003 increased the maximum driving hours to 77 from 60 over 7 consecutive days and to 88 hours from 70 over 8 consecutive days in spite of evidence that we had not decreased the number of truck accidents in this country. It is possible that FMCA is motivated to interpret the data in a way that decreases the number of accident attributed to fatigue?

Zelnorm, a drug designed to combat irritable bowel syndrome, has been withdrawn from the market at the request of the FDA.

The FDA reviewed 29 Zelnorm studies that demonstrated a greater risk for heart attack and stroke in patients treated with Zelnorm compared with a control groups given a placebo.

The studies found 13 cases of heart attack, stroke, or angina (chest pain related to heart disease) of the 11,600 patients who took the Zelnorm. The control group of 7,000 had only one similar non-fatal adverse event.

This development does not come as a shock to pharmaceutical lawyers or consumer advocate groups. In March 2001, Public Citizen urged the FDA to reject Zelnorm because was not efficacious in treating patients with irritable bowel syndrome and because of serious safety concerns. Zelnorm was also rejected as too risky last year for a second time by a European Union health advisory panel. Yet the FDA approved the drug in 2002.

I've been writing a good bit over the last few weeks about first party bad faith. Last week, a first party bad faith bill was passed by the Maryland Senate and is now being considered by the Maryland House of Delegates. There is a good article in the New York Times today that underscores why first party bad faith is such a necessity for a fair insurance system.

I stumbled on a Metro Verdicts Monthly from last year that examined the success plaintiffs have at trial in slip and fall cases on snow and ice. In Maryland defendants prevailed 62% of the time.

The difficulty in these cases often lies not with the issue of whether the defendant was negligent, but whether the plaintiff assumed the risk because he/she appreciated the danger of walking on the snow/ice. Under Maryland law, this is assumption of the risk, unless the plaintiff lacked the free will to avoid the danger. This is presumably the case when going to work, entering or leaving your home, and tending to other necessities of life. Moreover, the fact that no reasonable alternative path was available does not reduce the free will standard.

Last week, the Maryland Court of Appeals decided the case of Morgan State University v. Walker. In this case, Plaintiff Pamela R. Walker, brought a personal injury lawsuit against Morgan State University alleging that it negligently failed to remove snow from a parking lot during the last great Maryland blizzard in 2003. You know how the story goes from here. Plaintiff was visiting her daughter, walked across the icy parking lot and severely fractured her leg, resulting in about $50,000 in medical bills and, presumably, a permanent injury.

The Baltimore City Circuit Court (I’m not sure who the Judge was) found that Ms. Walker assumed the risk as a matter of law and granted summary judgment to Morgan State University. The Maryland Court of Special Appeals reversed, finding that the voluntariness of Ms. Walker's action was a question for the jury. The Maryland Court of Appeals disagreed with the Court of Special Appeals, and agreed with the Baltimore City Circuit Court’s finding that Ms. Walker assumed the risk of her injuries. While I doubt it was integral to the court’s opinion, the court did note that Ms. Walker had been wearing Timberland boots and stated that “I don’t have any problem with walking or anything like that. Actually, I’m a daredevil to be honest with you.” I cannot imagine Ms. Walker’s attorney was enjoying that testimony at her deposition. You don’t want your client professing to be Evel Knievel (or maybe David Blaine for you younger folks) in a case where the issue is whether you assumed the risk of your injuries.

My partner, Laura G. Zois, tried a case in Anne Arundel County for a slip and fall during the same blizzard as Ms. Walker. The Plaintiff in that case was walking along a common area sidewalk that was not cleared and fell, fracturing her left wrist. Plaintiff incurred $6,554.72 in medical bills. The Defendant made a settlement offer before the trial of $18,750 (State Farm was the insurance company). The jury awarded our client $370,577.

The salient difference between Walker and our case is that our client was walking to her home from her car after working as a neonatal nurse at St. Agnes Hospital. Ms. Walker, on the other hand, was visiting her daughter, a noble endeavor but certainly not one where Plaintiff can argue that she had no choice but to make that trip.

The take home message for Maryland personal injury lawyers handling slip and fall cases in snow and ice is that you have to carefully consider the facts before accepting a case. The Baltimore lawyer in this case was no doubt seduced by the fact that Ms. Walker had a good damages case. There is no question the woman was seriously injured. But Maryland law is tough on these slip and fall cases on ice and snow and each case has to be carefully evaluated to make sure that the prospective client did not assume the risk of his or her injuries.

I wrote a blog post for the Trial Lawyers Resource Center today on listening to insurance adjusters during settlement negotiations, as well as a few other random thoughts about settling personal injury cases. You can access that post here.

Every wonder why you insurance rates go up when you get a speeding ticket? Study of 3.7 million licensed Maryland drivers shows that ticketing does not reduce drivers' likelihood of getting another ticket for speeding

Researchers at the University of Maryland School of Medicine looked at Maryland's licensed drivers and found that getting a speeding ticket almost doubles the risk of receiving a subsequent speeding citation.

The study also turned up interesting data comparing those who go to court for speeding tickets and those that do not. As every Maryland driver knows, if you get a speeding ticket and you were not doing a complete Dale Earnhart impression, you can either go to court (where you will invariably be found guilty so your best bet is to plead guilty) or you can simply pay the fine by mail. The University of Maryland study found that the likelihood of receiving another speeding ticket was 12 percent among drivers who had opted to pay fines and received points on their driving records compared to eight percent among those who received probation before judgment (PBJ). This makes sense. The driver who cared enough to go to court is probably more likely to slow down in the future.

The author also noted that “PBJ appears to be the most effective penalty for speeding, however we do not know if there are other contributing factors influencing drivers receiving PBJ and that these factors are responsible for the lower rate of repeat violations in this group. If the effects of PBJ are due to the punishment itself, perhaps the experience of going to court and appearing before a judge has more of an impact on a violator than sending in a check to pay a fine. Future research is needed to learn more about the deterrent effects of PBJ.”

According to the National Highway Traffic Safety Administration, speeding was a contributing factor in 31 percent of all fatal automobile and truck accidents nationally in 2003. If our auto accident lawyers have learned anything, it is that speed kills. Our lawyers have seen so many accidents where speed was a likely contributing cause. But another common cause of serious car and truck accidents that no one talks much about: the differences between the speeds at which different vehicles travel. This is especially true with truck accidents. The problem with trucks is that they generally take longer time to accelerate to the prevailing speed compared to cars and motorcycles. This results in speed differentials that promote lane changes as cars move aggressively to get around the slower accelerating trucks. The Texas Transportation Institute did a study which found that the imposition of lane restrictions for trucks improves safety by reducing differential vehicle speeds, lane changes and passing maneuvers that cause truck accidents. The study underscored the obvious: the safest conditions exist when cars and trucks are not traveling at widely differing speeds.

When I received an advertisement for a book on Deposing Difficult Doctors by Florida personal injury lawyer, Kim Hart, the title certainly caught my attention. The advertisement included excerpts from the book. What caught my interest is the notion of videotaping “independent” medical exams (IMEs). The book makes two arguments in favor of videotaping IMEs:

1. “If you make it a practice to videotape all compulsory medical examinations, you soon will have videotapes of most of the doctors used by the insurance companies in your area. Give your client a copy of a previous videotaped compulsory medical examination and the transcript from the examination of the doctor who is scheduled to examine her. This will take all the mystery and surprise out of the situation and help calm your client’s fear of the unknown.”

2. “A defense-oriented CME [I assume this stands for compulsory medical exam] doctor often plays Mr. Nice Guy at the examination. He will make sympathetic statements to your client such as, “I can see you have suffered a lot” or “I can tell that this injury has had a serious effect on your life.” If a physician is two-faced and projects Mr. Nice Guy at the compulsory medical examination but Attila the Hun at trial, showing the jury a tape of the examination can communicate to them instantly what a scheme he is.”

I thought these arguments were interesting. It is not a regular practice for Maryland personal injury lawyers in Maryland in car accident and truck accident cases to videotape defense medical exams. I also do not know how a Maryland court would view an injury plaintiff videotaping the medical examination as a precondition to that exam.

Moreover, I am not sure I fully accept the logic articulated in support of the efficacy of videotaping medical exams. I agree that it would be helpful to have a library of tapes for a lawyer’s personal injury clients. But it is very possible that Dr. Jekyll will maintain the nice guy persona he committed to during the examination and give a more complete examination than the doctor otherwise would. I do not often see Mr. Hyde at trial, most doctors doing defense medical exam work get the gig by being able to attack injury victims’ claims in an avuncular way. Moreover, if the injury victim overreaches or otherwise presents poorly in the video, that will be preserved for all time. Still, I think this is an interesting idea. If anyone has any thoughts about it, I would appreciate your input.

The Maryland Gazette reports that Baltimore personal injury lawyer Peter G. Angelos is lobbying the General Assembly’s judicial committees to kill a bill that would allow Maryland to join 46 other states in switching from a standard of contributory negligence to one of comparative fault.

Angelos' fear, which all Maryland personal injury lawyers fully share, is that with comparative negligence we could potentially lose joint and several liability, which allows plaintiffs to seek a full recovery from culpable parties who are not 50% responsible. Currently, all defendants who are substantial contributing causes of a plaintiff's injury are individually fully responsible for the total amount of a jury award to a successful plaintiff. A separate court action later decides how much each defendant pays.

More to the point for Mr. Angelos, his firm handles asbestos cases where some of the responsible parties are bankrupt. Clearly, Mr. Angelos' concern is his potential failure to gain a full recovery in these asebestos cases.

While there is no guarantee that Maryland would relinquish joint and several liability (only 14 states do not apply joint and several liability to the asbestos cases and 46 states have comparative negligence, which clearly shows they are not mutually exclusive), I suspect Mr. Angelos wants to err on the side of caution in the event that Maryland decides to relinquish some of the benefits that joint and several liability in its current form affords in exchange for the switch to comparative negligence.

But there is no evidence that the supporters of the comparative negligence bill are willing to compromise on the fairness and the efficacy (some studies have said that it may encourage settlement) joint and several liability provides. But apparently, given the asbestos laden nature of Mr. Angelos' law practice, any risk of losing joint and several liability leads him to oppose a bill that virtually every other personal injury lawyer in the country agrees is the superior rule to protect injury victims. The fact that no other Maryland personal injury lawyer has come out against comparative negligence speaks volumes to the question raised in the article as to what is best for personal injury victims in Maryland.

So now the question becomes whether the Maryland legislature will bend to the money and influence of Peter Angelos and big business in Maryland. We will find out shortly....

A study released by two advocacy groups showed that U.S. fatalities from truck accidents have remained consistent at 100 per week from 1999 to 2005. This week, families of truck accident victims are lobbying Congress and the Bush administration to establish stricter rules such as reducing the number of hours truck drivers are allowed to drive without rest and increase the number of safety inspections.

As I mentioned in a recent blog post, the Federal Motor Carrier Safety Administration four years ago under President Bush in spite of evidence that we had not decreased the number of truck accidents in this country, increased the maximum driving hours to 77 from 60 over 7 consecutive days and to 88 hours from 70 over 8 consecutive days. These safety groups are trying to nudge the President in the opposite direction. Sneak preview of what it to come: it won't work.

America Online (AOL) is running an article titled "Most Outrageous Lawsuits." It appears in the money and finance section of AOL and was also prominently displayed on the AOL home page. As a frequent user of AOL (I really love their product) for the last 11 years, I keep seeing this article over and over.

The "crazy lawsuits" AOL describes come directly from groups like Citizens Against Lawsuit Abuse (CALA) and the American Tort Reform Association (ATRA), groups who see personal injury lawyers as the great Satan whose sole mission is to destroy corporate America while lining our pockets with millions of dollars.

These groups rely on a false premise: that the American public cannot be trusted and American juries give out ridiculous awards that are not substantiated by the evidence or even common sense. The groups that vilify personal injury lawyers are entitled to their opinion and there is no question that frivolous lawsuits do get filed. What they are not entitled to is their own facts. But they often do make their own facts, manufacturing insane lawsuits and verdicts that never happened.

Stores of million dollar recoveries in cases that simply never happened fuel this frustration against personal injury lawyers. My personal favorite is the auto accident that resulted from the man who assumed his Winnebago would simply drive itself on cruise control, left his seat and went to make a cup of coffee, and then sued and recovered millions because he was not warned that cruise control did not mean the vehicle would drive itself. Of course, the more powerful examples are the ones at least based on a true story like the McDonald's coffee case, which has been so distorted by groups attacking personal injury lawyers - and by implication the American public - that the actual facts of the case have been long lost. Click here for the real facts of the McDonald's case instead of the half story - actually 1/10 story - that gets told over and over again.

As it turns out, AOL may itself have reason to detest trial lawyers. In the past few years, trial lawyers have been the last resort for shareholders and investors to hold AOL accountable for their negligence. The following are just a few examples of AOL's legal problems:

Just this week AOL agreed to pay $246 million to compensate the University of California for losses to their pension and endowment funds after the company's stock prices plunged in 2001-2002. The University alleged that AOL inflated it stock price prior to its merger with Time-Warner by misrepresenting its sales, revenues and subscriber numbers (I lost money on their stock as well but I got it mostly after the stock had plummeted).

In 2004, AOL settled two class actions that claimed it had continued to bill plaintiffs after their subscriptions were cancelled.
I'm not saying this is why AOL is running the story. I really do not know. They may be just feeding into the frenzy attacking personal injury lawyers and tapping into the impulse that many of us have to think that the American public - or anyone not in the room when we are speaking, for that matter - is so dumb. But I wish AOL would ignore its own ulterior motives or the desire to tap into the anti-personal injury lawyer sentiment and present these stories with a little more journalistic objectivity. Otherwise, they should just merge with Fox News.