Maryland Injury Lawyer Blog

The United States District Court for the District of Maryland has posted a Suggested Protocol for Discovery of Electronically Stored Information on its website.

The Maryland District Court's website notes that this protocol, developed by Judge Paul W. Grimm and others in light of recent amendments in the Federal Rules (click here for a good summary and analysis of the amendments), is a working model that has not yet been adopted by the court. Instead, the protocol is intended to serve as a tool to assist lawyers in resolving disputes in a new area of discovery. The protocol may serve as the framework for developing local rules in the future. The court has invited comments and suggestions from the Maryland bar to be sent to mdd_voyager@mdd.uscourts.gov.

This is an atypical issue for Maryland car and truck accident lawyers but electronic discovery can be an issue occasionally for medical malpractice lawyers looking to uncover a doctor's communications with others about the chosen procedure or treatment plan. This is a far greater issue for products liability lawyers in Maryland conducting discovery about a drug or product. For a lot of interesting information on electronic discovery, check out Evan Schaeffer's Illinois Trial Practice Weblog which provides a lot of tips and commentary on electronic discovery issues.

Yesterday, an article by Brendan Kearney in the Maryland Daily Record reported on an insurance company's plan to require its doctors to have patients sign waivers that limit both their rights and the amount of their damages. It starts out like this: “Eugene Rosov is passionate about what he does. 'I live for this. It is the most important thing on the planet for me,' Rostov said. 'Pray God I'm not wrong.' Was he talking about global warming or the war on terror? Try medical malpractice insurance. Rosov thinks the current method of settling malpractice claims is unfair... and jurors are not educated enough to understand the issues.”

Okay, where do I begin? The most important thing on the planet is medical malpractice policies that require doctors to limit patients’ rights? I'm speechless. Not just does this show a stunning lack of perspective, but it underscores the degree to which our opponents are fighting to limit the rights of medical malpractice victims.

Equally insane is the notion that juries are not smart enough to decide medical malpractice cases. Juries are too stupid to decide whether a doctor has committed medical malpractice, but are smart enough to consider whether the rule of reason should be applied to an antitrust case or whether there has been a patent infringement. This stuff is all pretty easy, right? I wonder if Mr. Rosov thinks that juries should be able to decide which criminals to put to death.

While we are insulting the intelligence of the American people, certainly the question of deciding whether a doctor is negligent is equally as complicated as wading through all of the issues in order to decide who to vote for in the next presidential election. Should we really leave this up to the average American?

Thomas Jefferson said the saving grace of our country is the simple wisdom and common sense of the average person. They may not understand medical issues, but once the issues are explained to them, they will understand them, regardless of what Mr. Rostov thinks.

Jefferson also famously said he would prefer to be judged by a jury composed of farmers than of professors. I agree. But I do not think Mr. Rosov would.

Last week, a well respected defense lawyer told one of our lawyers that they had obtained the Maryland Trial Lawyers Association's “Handbook," which spells out the terms for a defense requested medical examination. This "Handbook" has made its way into a Motion to Compel a Physical Examination, specifically including this "MTLA Handbook" as an exhibit to the motion. By way of this inclusion, I assume this is an authoritative source of legal guidance for the court on this discovery matter.

Now back to reality. Maryland Trial Lawyers Association does not have a "Handbook" on defense medical exams. Instead, it is just a copy from the Maryland Personal Injury Lawyer Help Center of the link from our website setting forth our suggested conditions for a defense medical exam. I think it is funny that this is being represented as some sort of guide to fighting medical exams. I am glad people are using the Maryland Personal Injury Lawyer Help Center. My partner told me last week that a defense lawyer she spoke to said they often get motions from other lawyers copying our sample motions. The lawyer said they call them "Miller & Zois" motions.

There is also a motion for sanctions for failure to appear for a scheduled medical exam. As I indicated earlier, my law firm likes and respects this lawyer and his firm, but this motion really annoys me. I could throw out 5 reasons why, but only one really matters.
In Maryland, and also under the Federal Rules of Procedure, a defense medical exam is not a matter of right and may be obtained only by an order from the court.

So let's get this straight: Defendant's lawyer sets a date for a DME, unilaterally by the way, just assuming the Plaintiff has no life and lots of time on her hands, for which the lawyer has not obtained a court order, and then files a motion to compel when she does not present for the medical examination. Huh? The motion also fails to mention that the discovery deadline - by which time all discovery disputes should be resolved - has long since passed.

Justice was served in Roy Pearson's lawsuit against his drycleaner today. A District of Columbia judge ruled that Mr. Pearson would get somewhat less than the $54 million he sought in his lost pants lawsuit: less than zero (the judge awarded the drycleaners court costs). This news came as a surprise to... well, no one. Personal injury and medical malpractice lawyers in Washington D.C. were relieved because the whole debacle was making all plaintiffs' lawyer bad by six degree of separation connection.

Mr. Pearson had sued Custom Cleaners because Pearson said the cleaners lost an expensive pair of his pants. His lawsuit claimed that signs in the drycleaners that read "same day service" and "satisfaction guaranteed" were misleading to the consumers.

I've been meaning to summarize my thoughts on this case for the last few days but this Houston Chronicle editorial says it better than I would have.

The Capital wrote an article yesterday that discusses our law practice and the Maryland Personal Injury Lawyer Blog. You can find the article here.

A class action lawsuit was filed last week in Seattle, Washington against an internet lawyer rating service named avvo.com. The lawsuit claims that the service provides a misleading and inaccurate assessment of lawyers' abilities, and is in violation of the Washington Consumer Protection Act. According to the lawsuit, the website gave two Supreme Court justices the same rating as an attorney who was convicted for conspiracy to defraud the government.

According to the lawsuit, a Bellevue, Washington lawyer listed an award with Avvo he won last year for playing softball, which caused his rating to rise. Obviously, this award is unrelated to the lawyer's ability to practice law.

I have mixed feelings on Avvo, which has yet to begin rating Maryland lawyers. On one hand, I think many consumers, particularly unsophisticated consumers, need some assistance to make their decisions. These consumers need particular protection from lawyers who pretend to be personal injury lawyers but have never come close to trying a personal injury case before a jury. The problem is, however, that it is impossible to conjure up an objective formula to rate lawyers. This difficulty was clearly underscored by the lawyer whose rating increased by his ability on the softball field.

This week has been an all-time record for traffic on the Maryland Personal Injury Lawyer Blog. Is this because of lawyers needing to know my thoughts on the nuances of handling personal injury cases? No. [EDITOR'S UPDATE: There is a verdict: click here for blog on VERDICT in this case.]

For those of you just tuning in to this nonsense, Administrative Law Judge Roy Pearson is suing his dry cleaner for millions of dollars after they lost his pants. On the stand this week, Judge Pearson -- I tried, I can't do it -- Mr. Pearson cried on the stand as he recalled the horror of losing the pants from his precious blue and maroon suit.

Mr. Pearson claims to have owned exactly five suits, all Hickey Freemans which do not come cheaply, one for each day of the work week. But after putting on a few pounds, his suit rotation system crashed when he picked up his newly altered suits from the dry cleaner and could not find one pair of pants.

The pretrial hoopla about how insane this case is was completely lost on Mr. Pearson, who representing himself, said in his clearly understated opening statement, "Never before in recorded history have a group of defendants engaged in such misleading and unfair business practices."

Under cross-examination, Mr. Pearson said the District of Columbia Consumer Protection Act, under which he is suing Custom Cleaners, should grant a customer whatever he or she wants if there is a "Satisfaction Guaranteed" sign.

The crazy thing is the dry cleaner actually took that guarantee to heart. Five years ago, when there was a problem with one of Mr. Pearson's pants, the dry cleaner gave him a check for $150 with no questions asked. However, the dry cleaner asked Mr. Pearson to take his business elsewhere, probably because the guy drove them nuts on a regular basis. But in one of the least prophetic moments in dry cleaning history, they relented when Mr. Pearson asked if he could stay. How much harm could the guy cause, right?

The presiding judge in the case, Judge Judith Bartnoff, is expected to render her decision next week. Is there any chance on earth she does not do the right thing with all of this attention focused on the case? I think the chances are similar to the likelihood of that second Rodney King jury (the federal jury after the LA verdict) coming back with a defense verdict. Mark my words: a defense verdict or an incredibly low damage award is coming down the pike next week. And Roy Pearson does not see it coming....

The New Jersey Supreme Court weighed in on the issue of whether expert testimony is required for the admission of photographs of damage to the car or truck as probative to the issue of a plaintiff's damages/injuries.

In Brenman v. Demellon, the Plaintiff was driving in stop-and-go traffic when she was rear ended by the Defendant. The Plaintiff allegedly suffered a herniated cervical disc requiring a cervical fusion.

At trial, the Defendant sought to introduce photographs showing minimal damage to the rear bumper of Plaintiff's car to contend that the Plaintiff could not have suffered a herniated disc in this accident given the property damage to the vehicles. Plaintiff filed a motion in limine seeking to bar the admission of the photographs absent expert proof to connect the condition depicted in the photographs to the biomechanical forces that resulted from the impact between the two cars.

The trial court admitted the photographs, specifically concluding that “[j]urors can infer from their viewing photographs that the plaintiff could not have been as seriously injured as she claimed” and noted this question should be left to the discretion of the trial court.

After an award of zero damages, the Plaintiff appealed. The Appellate Division (New Jersey's intermediate appellate court) reversed and remanded the case for a new trial, adopting a per se rule that requires expert testimony to prove a causal link between the extent of damage to an automobile in an accident and the cause or extent of injuries arising from that accident consistent with Delaware law in Davis v. Maute, 770 A.2d 36 (Del. 2001). In that case, the Supreme Court of Delaware held that: (1) as a general rule, a party in an automobile accident case may not directly argue the relationship between the damage to the vehicles in the car accident and the extent of Plaintiff's injuries caused by the accident absent expert testimony on the issue; (2) lawyers may not argue by implication what the lawyer could not argue indirectly, i.e., they may not characterize the accident as a fender-bender or otherwise downplay the seriousness of the accident; and (3) the lower court erred in admitting the photographs of the Plaintiff's car without a specific instruction limiting the jury's use of the photographs.

The Supreme Court reversed, holding that the admissibility of photographs of the vehicles rests on whether the photograph fairly and accurately depicts what it purports to represent, and that this decision rests in the discretion of the trial court. The New Jersey Supreme Court specifically rejected a per se rule requiring expert testimony as a foundation for the admissibility of a photograph of a vehicle even when the photograph is used to show a correlation between the damage to the vehicle and the extent of a plaintiff's injuries. There was, however, dissenting opinion that urged a per se rule requiring expert testimony before the admission of property damage photos.

Continue reading "Are Photographs of the Vehicles Admissible Without Expert Testimony? New Case from New Jersey" »

There has been a lot of blogging about former President Reagan Supreme Court Nominee Robert Bork's personal injury slip and fall lawsuit brought against the Yale Club, seeking "in excess of $1,000,000," and punitive damages. The accident happened while Judge Bork was climbing to the dais for a speech. There were no steps or handrail for the 79-year old Bork to hold on to during his climb, and he slipped and fell.

Eric Turkewitz's New York Personal Injury Attorney Blog provides a great commentary on the case. As opposed to summarizing what Eric writes, I suggest just reading his excellent post.

I agree with everything Eric writes except his criticism of the $1 million Judge Bork seeks. At least in Maryland, the ad damnum clause is inadmissible at trial. Accordingly, it makes sense to seek in your complaint more than you could ever receive because a jury might award more than you expect because juries are unpredictable. Moreover, when a lawyer files suit, he/she sometimes does not know the full scope of the client's injuries. While the Maryland Rules allow the court to increase the ad damnum even after the verdict, it is entirely discretionary. Do you really want to leave such a thing in the hands of the trial judge who might think the verdict is excessive?

A part of the problem with the ad damnum clause is that the media reports the amount the attorney puts in the ad damnum clause in personal injury cases as if it is indicia of what the plaintiff genuinely believes he/she is entitled to recover. So the headline reads "Injury Victim Seeks $100 Million!" as if that number was a part of the lawyer and client's deliberative process.

Going back to the admissibility of ad damnum clauses, the Personal Injury Lawyer Help Center provides a sample motion in limine to preclude a defendant from referencing the ad damnum clause at trial.

This is one of the more depressing reports on medical malpractice that you are going to read. A new study from Johns Hopkins has found that the vast majority of errors in pediatric chemotherapy are not spotted until they have, in some way, affected the child. According to the study, doctors and other health care providers failed to identify errors in dosage or administration of drugs 85 percent of the time. Accordingly, the number of errors in treating these sick children are drastically underestimated. But this does not mean that the child is not impacted by these medical mistakes. Many complications are never attributed back to the chemotherapy because the child is so sick and at risk for so many complications.

Chemotherapy patients are particularly vulnerable to these medical mistakes because there is no usual dose. The amount of chemotherapy received usually depends on body weight. The dangers children; pediatric dosages generally are based on body size. The problem is exacerbated with chemotherapy because it is practically poison. Actually, coming from someone who has taken chemotherapy, it is poison. If you take three times the amount of oxycontin, you will sleep a little longer than you like, but no real harm is done. With chemo, this margin of error does not exist.

The Maryland Personal Injury Lawyer blog specifically avoids being trite or preachy. But let's put that aside, just for today. Doctors and other health care providers have to be more careful in providing treatment to some of the sickest and most certainly our most innocent patients.

GlaxoSmithKline's stock price has fallen approximately 10% since a study published in the New England Journal of Medicine in May showed an increased risk of heart attack and other adverse cardiac events for patients taking the diabetes drug Avandia. Now shareholders are fighting back. A class action lawsuit has been filed against GlaxoSmithKline in the US claiming the company issued a series of "false and misleading statements" regarding Avandia, the group's blockbuster diabetes drug.

Avandia is still on the market, pending further research. The FDA has said it will issue a "black box" warning on Avandia,which means that studies indicate the drug carries a significant risk of serious or even life-threatening adverse effects. This warning and the media frenzy around Avandia is going to decrease sales and, of course, declining profits. This lawsuit alleges that Glaxo not only ignored its duty to Avandia users, it also ignored Glaxo shareholders.

Yesterday, I wrote a blog post for the Trial Lawyer Resource Center with thoughts on defending your client's deposition in personal injury cases. You can find it here.

The Virginian-Pilot had an interesting article on Saturday regarding the punishment that the Virginia Board of Medicine gave to a Virginia Beach doctor who had admitted fabricating a patient’s vital signs during minor bunion surgery at Sentara Bayside Hospital. He essentially prewired the oxygen saturation levels and EKG readings in advance of her surgery.

The reason we know of this little short cut is that the patient, a mother of four boys, suffered catastrophic brain injuries during surgery, slipped into a coma and died.

Medical malpractice is the third leading killer in this country behind heart disease and cancer. Most of these deaths are caused by decent doctors who made unintentional medical errors while trying to do the best they could for the patient.

What was the doctor’s defense? Surely, he offered some explanation. The “Virginian-Pilot” (in another article) reported that his answer was that he had seen other doctors do it that way and the patient was otherwise healthy. According to a medical board web site, the doctor also settled a malpractice claim in 1998. Does this surprise anyone?

This doctor simply did not do his job. He didn’t even try. How did the Virginia Board of Medicine respond? They fined him $5,000. He is still licensed to practice medicine in Virginia.

There might be fewer medical malpractice lawsuits if doctors did a better job of policing their own. Say what you will about the ethics of personal injury lawyers - and sometimes there is a lot to say - you would not have a licence to practice law after pulling the legal equivalent of this, at least not in Baltimore.

Next week, a congressional subcommittee will investigate the FDA's watchdog role in evaluating the risks associated with the diabetes drug Avandia. One witness, scheduled to appear at the hearing, claims that Avandia’s maker, GlaxoSmithKline, attempted to silence his criticism of the drug. John B. Buse, a nationally recognized diabetes specialist, says that Glaxo engaged in tactics to intimidate the doctor to keep him from going public with his concerns.

The New York Times reports that the Senate Finance Committee investigators have been looking into “very serious” claims that Avandia’s manufacturer “silenced one or more medical professionals who attempted to speak out about the potential risk of heart attacks and other serious health consequences as the result of the use of Avandia.

The news on Avandia continues to get worse and worse for Glaxo...

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Our Baltimore personal injury lawyers handle auto accident, truck accident, or by medical malpractice in and around Baltimore City. If you have been injured in an automobile accident in Baltimore, call one of our Baltimore personal injury lawyers at 410-553-6000 or select here for a free consultation.