Maryland Injury Lawyer Blog

The Maryland Daily Record published an article today on Erie Insurance Exchange v. Heffernan, a new Maryland Court of Appeals opinion in an underinsured motorist case. The reporter, Caryn Tamber, does a real nice job of addressing a complicated issue. Any Maryland lawyers handling auto accident or truck accident cases should read the entire opinion. You can find the article, which includes a few quotes from me, here.

Novartis had been marketing its drug Zelnorm (also called tegaserod maleate and incorrectly called Zelnom) with stunning success since it was first placed on the market for women in 2002 for irritable bowel syndrome. In August, 2004, it was able to expand its market share when Zelnorn was given the additional indication for short term treatment of chronic constipation in men and women under the age of 65. Last year, Zelnorm was honored as having one of the best prescription drug ads by IAG Research, a company that rates TV ad effectiveness. The "tummies" campaign, which turned women's bellies into billboards, was credited with boosting sales growth to $561 million in 2006 to relieve IBS. Of course, these kind of accolades do not come cheap: Novartis spent $325 million in three years marketing Zelnorm, which costs consumers about $200 a month to use as recomended.

Last month, the FDA recommended that Zelnorm be removed from the market after reviewing data that found users of Zelnorm experienced heart attacks, strokes and angina at a rate 7 to 8 times greater than those who took a placebo. To show a correlation between an adverse event and a drug, researchers like to see a 2 to 1 ratio between the incidence of the adverse event in the active group verus the control group. A ratio of 7-1 is off the charts. Novartis is claiming that the incidence rate is the same for the active group taking Navartis as it is for the general population. But unless the placebo the control group were given was a miracle drug, it is hard to figure how that is possible. Did the placebo reduce the risk of stroke, heart attacks and angina?

Because the FDA asked Novartis to take Zelnorm off the market, as opposed to Novartis making an affirmative choice to remove this potentially life threatening drug, our lawyers suspect that the data which indicated that Zelnorm could cause serious and even fatal injuries was available to Novartis before Zelnorm was removed from the market. I say “suspect” because no discovery has been conducted. But from my experience with these companies, it is hard not to prejudge. Novartis estimated on its 2007 1st Quarter Conference Call that it would lose $600 million in sales in 2007 as a result of Zelnorm being taken off the market. Analysts predicted this would rise to $1 billion by 2012. If you are looking for motive, here it is.

What about the fear of lawsuits? Tim Anderson, a Prudential analyst, said that lawsuits and legal costs will be “largely immaterial to a company of (Novartis') size." Another analyst added that “only” 1,000 to 2,000 patients suffered these problems while taking the drug. Depressing.

Clearly all of the facts are not yet in as to the details of the risk and whether this drug should have been on the market. Many are patting the back of the FDA saying they are more aggressive about public safety in the post-Vioxx era. But Zelnorm was rejected as too risky last year for a second time by a European Union health advisory panel. This begs the question: what did the FDA not see in Zelnorm that the European Union saw and rejected? (Unfortunately, the fact that Zelnorm has not been approved by the European Union for this Swiss company is unlikely to be admissible should these cases go to trial.)

Our lawyers are now reviewing Zelnorm cases all around the country. If you have suffered a heart attack, stroke or angina while on Zelnorm, call our lawyers at 800-553-8083 or click here for a free web consultation.

The Prince George’s County Circuit Court is in the second phase of assigning identification numbers to attorneys who practice in the Prince George’s County Circuit Court. Using this unique attorney identifier will help Circuit Court clerks to identify attorneys and aid in the timely and accurate filing of pleadings, correspondence, documents, and/or notifications.

During the months of April and May, notification cards will be mailed out with the attorneys' assigned number. The attorney is required to include your identification number on all pleadings filed in the Circuit Court for Prince George’s County.

Because I'm not the only Ron Miller who is a practicing lawyer in P.G. County Circuit Court, I am pleased with this development!

A recent study found that juries are more likely to side with doctors in medical malpractice cases. The study indicated that juries tend to be skeptical of people and their lawyers who sue their doctors and that most medical malpractice trials result in a verdict for the medical doctors. (See yesterday's Maryland Personal Injury Lawyer Blog post for one more reason why they may be skeptical.)

The author of the study, Philip Peters Jr., of the University of Missouri-Columbia School of Law, concluded that juries treat doctors favorably, "perhaps unfairly so," and are more likely than even fellow physicians to defer to a doctor's opinion.

Peters found that most medical malpractice suits are decided in favor of the health care provider and that the cases that go to trial tend to be the weakest ones, since those with strong evidence usually settle before trial. In an examination of win rates in New Jersey, North Carolina, Florida and Michigan, Peters found that 27% to 30% of filed medical malpractice suits end in a plaintiff's verdict, the lowest success rate of any type of tort litigation. In Maryland, the number is reportedly 8%.

Does this mean that medical malpractices case in Maryland are 3 or 4 times more difficult than in the cases listed in this study? No. Most likely, the difference can be explained by the fact that Maryland medical malpractice insurers, to their credit, make reasonable offers on case that should be settled.

[EDITOR'S UPDATE: There is a verdict: click here for blog on the good news of a VERDICT in this case.]

If Roy Pearson did not exist, advocates of tort reform would invent him. Mr. Pearson is a lawyer - an administrative law judge actually - who brought a lawsuit against his neighborhood dry cleaner when they misplaced his pants. Two years, over 1000 hours of Mr. Pearson's time, thousands of pages of legal pleadings and discovery later, Pearson continues his battle against the dry cleaner. His complaint seeks $65,462,500 from the dry cleaner, including compensation for such things as "mental suffering, inconvenience and discomfort," for the value of the time he has spent on the lawsuit, and, my favorite, for leasing a car every weekend for 10 years because there is no dry cleaner close to his house. If you didn't get that the first time, this is over a single misplaced pair of pants.

Incredibly, the dry cleaner has offered $12,000 to settle the case. But Pearson plugs forward seeking a big pay day for his lost pants.

Why do I say that tort reform advocates would invent Pearson? This is a consumer claim not a personal injury claim. But, believe me, personal injury lawyers face the consequences of this kind of nonsense every single time we pick a jury. This makes jurors more skeptical of people bringing claims of any kind, including accident and medical malpractice cases. Personal injury victims deserve a jury who is willing to evaluate a case with no preconceived notions. The publicity generated by this kind of case makes getting that fair jury more difficult.

For more details on this amazing story, check out the full Washington Post article here and the Capital Community News article here.

I gave an interview for the Roanoke (Virginia) Times last week on the question of whether the families of the Virginia Tech survivors can bring wrongful death claims. You can access the article here.

There has been so much said and written about the Virginia Tech tragedy I really do not have anything more to add. But when something happens that is unimaginably awful, I think it is comforting to find some silver linings. Lawrence O’Donnell spoke on the McLaughlin Group about seeing people in California with no personal connection to the tragedy in tears, underscoring how interconnected we all feel. There is something heartwarming about this. In the same way we all became New Yorkers six years ago, we are all Virgina Tech students/alumni now.

The Insurance Journal reported today on an Insurance Institute for Highway Safety study that found that General Motors' vehicles had both the highest and lowest death rates in the period between 2002 and 2005. Chevrolet Blazers built from 2001 to 2004 had 232 driver deaths per million registered vehicles during the four-year span, the highest of any vehicle. The Acura RSX had the second-highest rate with 202 driver deaths followed by the Nissan 350Z, which registered 193 deaths. The rate represents the reported number of driver deaths divided by the model's number of registered years.

In contrast, the Chevrolet Astro minivan had the lowest rate with only seven deaths per million registered vehicles. It was followed by the Infiniti G35, BMW 7 Series and the Toyota 4Runner. Ironically, Chevy no longer makes the Blazer or the Astro.

My guess is that the Chevy Astro is not 33 times safer than a Chevy Blazer. Certainly, the demographics in terms of risk taking behaviors are different for the purchaser of a mini van than a sporty SUV because the study did not consider driver behavior or how the vehicles are used. Still, there are still meaningful conclusions that can be drawn from this study about which vehicles are the safest and least save to drive. The profile on the driver a Chevy Blazers cannot be that different from the drivers of Toyota 4-Runners.

The good news is they are making cars safer than they used to make them. These rates have gone down about 30 percent since the mid-1990s. The study also confirms our lawyers' experience that heavier vehicles such as SUVs and pickups have lower death rates. The message here underscores a theme I have discussed before on the Maryland Personal Injury Lawyer Blog: for all of the shouting about the need to decrease our dependence on foreign oil - which I agree with completely - the death toll on our highways will increase if we become a nation of Yugo drivers.

Former Carolina Panthers receiver Patrick Jeffers re-filed his medical malpractice and negligence lawsuit last week against the Carolina Panthers’ former team doctor. Jeffers had originally brought a medical malpractice claim in 2003 but his lawyers voluntarily dismissed the claim last year. The new medical malpractice lawsuit is virtually identical to the prior claim. Mr. Jeffers’ medical malpractice attorneys allege that Jeffers' NFL career was "destroyed" as a result of the team doctor adding five unauthorized knee procedures to an Aug. 20, 2000 surgery.

The Panthers were included in the original suit, but a judge ruled that Jeffers' complaints against the team first needed to go through the NFL's grievance process because of provisions in the league's collective bargaining agreement.

I brought a medical malpractice lawsuit against the New England Patriots, their team doctor, and a surgeon who operated on my client about six years ago. The Patriots raised this same defense but did not raise it until we had gone through two years of litigation. The judge ruled that the Patriots had waived their arbitration right by not raising the issue at the appropriate time. The Patriots settled the case shortly after this ruling.

If the court had been presented with the issue in the first instance, as was the case with the Panthers, I think the 45 days statute of limitations in the collective bargaining agreement would control, as unfair as that short of a limitations may be, under Sherwin v. Indianapolis Colts, 752 F. Supp. 1172 (N.Y.D.C 1990).

This was not a huge issue in my medical malpractice case against the Patriots’ team doctor but certainly the team doctor faces some unique ethical issues in working for the team and treating its players. The conservative team doctor whose first instinct is to take players out of the game is usually not the team doctor very long. Accordingly, the doctor is being pulled in very different directions.

The New York Times reported today that Ford is recalling more than 500,000 Escape sport-utility vehicles after 50 reports of engine fires caused by corroded brakes. Ford notified dealers of the recall this week for Escapes, covering the 2001 to 2004 model years. Ford will also contact the truck owners directly in the near future. The decision follows a National Highway Traffic Safety Administration investigation last year. The recall impacts only conventional gasoline-powered Escapes.

Ford surely does not enjoy fire being associated with its vehicles. Although time has erased most of the taint, Ford has an unpleasant history with its vehicles and fires. In the early 70s, it became clear that the Ford Pinto's design made the care susceptible to leakage and fire in moderate and even low speed rear end collisions (rear end auto accidents the most common type of vehicle accident). In April, 1974, the Center for Auto Safety petitioned the National Highway Traffic Safety Administration to recall Ford Pintos due to this defect. It took over four years and a ridiculous number of wrongful death and catastrophic injury lawsuits - including a $125 million punitive damage award that was later reduced - before Ford agreed to recall the 1.5 million Ford Pinto that were still on the market.

Ford also had a more recent brush with engine fires when 3.8 million Ford vehicles were recalled for engine fires just a few years ago.

The impression I have is that the risk associated with these fires pale in comparison to the risk associated with the Ford Pinto. Accordingly, I do not think that products liability lawyers in Maryland should expect to see a lot of cases. Still, when you are talking about fire and cars, there is always risk. If you have an Escape implicated in the recall, you should contact your Ford dealer immediately. If the engine of your Escape has caught fire and you have been injured, you should call a plaintiffs' products liability lawyer to investigate your case.

The Maryland Personal Injury Lawyer Blog took an unscheduled vacation as we ramp up for two mediations later this month and I also had a trial in Baltimore City earlier this week. Ironically, given this blog's recent obsession with first party bad faith in Maryland, the trial was an uninsured motorist auto accident case with first party bad faith implications. Classic scenario: $20,000 Maryland Automobile Insurance Fund (MAIF) underlying policy with a $100,000 in uninsured motorist coverage with USAA. MAIF did what they usually do: spend a bunch of money wasting time and defending the case but, in the end, putting up their policy. USAA offered an additional $17,000, arguing that our client's injuries were merely "soft tissue" in spite of the fact that it was obvious the woman suffered from a permanent injury. It was an easy call for USAA who knew, regardless of its obligation to its insured, that the maximum recovery was $100,000 ($80,000 of which they would have to pay). A Baltimore City jury awarded exactly $200,000 which was reduced to $100,000.

The Maryland Daily Record wrote a good article on the new first party bad faith law, using my jury verdict as an example. You can find it here.

Thanks for the emails wondering where I have been. I'm back and the Maryland Personal Injury Lawyer Blog will have a new post tomorrow.

The Maryland Senate has passed House Bill 425 and the Maryland House of Delegates today also passed the bill which puts a new requirement of good faith for insurance company dealing with their insureds. The bill now heads to Governor O'Malley for his signature. The Governor has previously pledged support for the bill.

This issue has been a reoccurring topic on the Maryland Personal Injury Lawyer Blog. See this post, that post and this post. My partner, Laura G. Zois, testified before the Maryland Senate and House of Delegates about three weeks ago on this very issue. I know that after the bill passed the Maryland Senate there was a lot of lobbying efforts from the insurance companies to keep it from passing in the House of Delegates. The vote was pushed back and I began to really doubt whether Maryland would join the majority of states in this country that have first party bad faith. I'm thrilled the Maryland Assembly put the interest of Maryland injury victims and consumers ahead of the insurance company and their lobbyists.

This is a huge win for Maryland personal injury victims and their attorneys who are fighting to get injury victims a fair recovery for their injuries and the benefits of the insurance contract for which they are paying premiums.

According to a recent Jury Verdict Research report, plaintiffs on motorcycles receive higher awards for collisions with cars or trucks than bicycle plaintiffs. Their analysis, based on plaintiffs’ verdicts rendered from October 1999 to October 2006, examines motorcycle and bicycle categories involving collisions with other vehicles, objects and pedestrians. The study found that the award median for motorcycle accidents was $73,700 compared to $40,912 for bicycle plaintiffs.

I assume the difference is based on the fact that motorcycles generate greater speeds that lead to more serious accidents. Interestingly, Jury Verdict Research provided average verdicts with this data, which it rarely does. To underscore the difference between median and average, the average motorcycle accident case was $561,065 and the average bike accident case was $500,353.