Maryland Injury Lawyer Blog

It is a slow blogging week. I will relock and reload after Labor Day. I did write two blog posts for the Trial Lawyer Resource Center on loss of consortium claims that you can access here and here.

The New York Times reports on new rules set up by chief administrator Nicole R. Nason at National Highway Traffic Safety Administration prohibiting officials at the agency from going on the record with reporters. Without special permission, agency officials are only allowed to speak with reporters only to provide background information.

I am sure keeping everyone on the same page is the politically astute play. But is that Ms. Nason's purpose? Or is it to protect the safety of our citizens on public highways? Obviously, the free flow of safety information is going to keep reporters investigating whether manufacturers are making safe vehicles.

The Times notes that this is a 35 year-old lawyer in charge of keeping our nation’s highways safe. While I am all for lawyers being qualified to do anything and everything, I have to question whether she was the best available candidate for this job. Ms. Nason served a few years as the Assistant Secretary of Transportation for governmental affairs. Why the leap to this position so quickly with such a minimal transportation background? I assume her quick rise was in part due to her connection to former CIA Director Porter J. Goss, for whom she worked as communications director when he was a congressman.

Is it fair for me to disparage the qualifications of a lawyer whose name I learned 20 minutes ago? Probably not. But this administration’s track record on highway safety sends up red flags everywhere. Where there is smoke, there is often fire. Ms. Nason is not helping the cause by trying to button the lips of safety experts and others at the NHTSA.

A recent Jury Verdict Research study revealed some interesting settlement and verdict data regarding truck accident cases. The most frequently cited injury in a truck accident cases, which is probably true for auto accident cases in general, is the back strain. Back strains, according to the study, drew a median verdict of $15,000.00. Brain injury cases, which accounted for only six percent of truck accident verdicts, had a median verdict of 1.3 million. Knee injuries accounted for four percent of the cases and had a median verdict of approximately $85,000.00.

The study also broke the verdict down into the type of truck accident collision which occurred and the median verdicts by type. Not surprisingly, the head-on collision had the highest median verdict of $275,000 and the "backing" collision (where a truck backs up into another vehicle) had the lowest of $33,000. The overall verdicts studied had a median verdict of $100,000.

It is hard to get a handle on just what these numbers mean to a truck accident lawyer. I tend to view them as part of a larger framework that I use to evaluate what a particular truck accident case is worth and where it falls in the general scheme of truck accident litigation. For more information on Maryland wrongful death auto and truck accident data, click here. For more general truck accident settlement and verdict data and other information helpful in valuing truck accident cases, click here, here and here.

The Maryland Daily Record reports on a Carroll County electrician who was recently awarded $2.3 million in a medical malpractice case by a Baltimore City jury. After a week long trial, the jury found the defendant doctor negligence for piercing the plaintiff’s spinal cord during a pain relief procedure.

The plaintiff, an electrician, now has a right arm which has atrophied and suffers from numbness and pain in his legs. He originally went to the defendant doctor after suffering a herniated disc injury.

At trial, two other physicians testified who spoke with the defendant who admitted that his needle hit the spinal cord during the procedure. Also introduced into evidence was a medical record which stated that the needle might have hit the spinal cord.

Not suprisingly given the current medical malpractice climate with some malpractice insurance companies, even with this powerful evidence the insurance company/doctor made no offers to settle this medical malpractice case.

The defendant doctor was named a “Top Doctor” by Baltimore Magazine in 2005. As I have written before in the context of ranking doctors and lawyers, while these rankings can sometimes be helpful to some people in some circumstances, the designation of “Top Doctor” is usually done by polling other doctors, who are presumably friends, colleagues, and acquaintances of the doctors in question and not necessarily in the best position to make the call. That is not to say that these doctors are not great physicians because most doctors voted "Top Doctor" probably are. Thus, such an award or recognition is of probative value in choosing a doctor. But too many people trying to make a quality decision as to the doctor or lawyer that is best for them stop at such a lofty designation when it is really only the beginning in considering the person who is best for you and your needs.

A man in Texas has filed a lawsuit against 1-800-Flowers for $1 million for telling his wife that he was cheating on her.

Leroy Greer’s Complaint states that he purchased flowers for his girlfriend through 1-800-Flowers. He claims to have specifically asked 1-800-Flowers to keep his purchase private. Mr. Greer claims he was assured that the company's privacy policy would protect him. Apparently, 1-800-Flowers pledges not to share personal information with "third parties." 1-800-Flowers sent a thank-you note to his home, and naturally his wife saw it and called the company which faxed her a copy of the invoice for the flowers.

Mr. Greer, clearly a insufferable romantic, sent along a note to his mistress that said, “Just wanted to say that I love you and you mean the world to me!" How sweet! After learning of the affair, Mr. Greer's wife demanded a $300,000 divorce settlement in addition to child support, according to Mr. Greer’s lawyer. Greer’s Complaint seeks $1 million for breach of contract and deceptive trade practices.

Under Maryland law of contributory negligence, if a Plaintiff is 1% responsible for his injuries in a negligence action, he cannot recover for any of his injuries. Maryland is one of only 5 jurisdictions (Virginia, the District of Columbia, Alabama, and North Carolina) that have this completely unjust law. There is another canon in law, the doctrine of “unclean hands” which requires plaintiffs seeking equitable relief must come with “clean hands.” In other words, they have not done anything unethical or unjust to receive relief. Yet another doctrine of Maryland law is the idea of assumption of the risk which states that you cannot recover in a negligence action if you assumed the risk by your own conduct.

These three doctrines do not apply to this case. But it is a shame because both would come in handy. This guy was cheating on his wife. Now he wants to sue the company that let the cat out of the bag. It is just plain frivolous.

Yesterday, I heard that one of the Rutgers women’s basketball players filed a lawsuit against Don Imus for his "nappy-headed ho" comment he made last spring. The Plaintiff, only one of the players, claims that Imus' characterization has tarnished her reputation.

I cannot decide which lawsuit is more frivolous. After Imus made his stupid comments, everyone and their mother has stood up and talked about how much character these women have shown throughout the controversy. Does anyone think for even a half of a second that this woman’s reputation has been tarnished? Actually, she is right, her reputation has been tarnished. But it is because she filed this lawsuit. As a potential future employer, how would you look upon this young woman?

I do not mean to attack this young girl because my in the blind guess is she is surrounded by people that led her in the wrong direction to a lawyer that just wanted to sue Don Imus and get a little attention. But both of these lawsuits are silly. This hurts personal injury lawyers and their clients because it increases the skepticism juries have every time a lawyer stands in front of a jury who has been legitimately hurt.

Speaking of the perils of the exposure of children to lead based paint, Mattel has announced its second recall in the last two weeks, this time of more than 9 million "made in China" toys because of injury and health risks posed by lead paint and reports of choking and intestinal damage that can occur from children swallowing the small magnets on some of these toys. The recall is the second initiated by Mattel in the last two weeks, and both recalls involve toys that were made in China. They are:

"Sarge" Die-Cast Toy Cars (from the Pixar movie “Cars”)

Batman Magnetic Action Figure Sets

With respect to the "Sarge" Die-Cast Toy Cars, it is worth nothing that the cars marked “Thailand” are not included in the recall. Chinese manufacturing and the acceptance of their goods here is taking yet another tumble. Apparently, days after Mattel identified his company as the manufacturer most implicated in the recall, the owner of the Chinese toy factory committed suicide.

While the risks associated with exposure to lead paint are extraordinary, these toys are likely not leading to the kind of exposure that would cause even mild brain injury. Mattel is appropriately being extra cautious on this front. But with respect to the magnets' risk, the fears are even more well-founded. In 2006, there was a similar recall for 3.8 million "Magnetix" sets. The sets consisted of tiny magnets that, if swallowed, caused intestinal perforation that can cause serious injury or death. There were 34 reported incidents involving the magnets, including one death and four serious injuries. As I wrote in my blog last year, this probably represents 3400 incidents because of underreporting. Before this recall, a 20-month-old boy tragically died after he swallowed pieces of a magnet that twisted his small intestine and created a blockage.

With pet food, toothpaste, seafood, and toys, this has been a bad year for Chinese manufacturers with respect to their credibility with the American public. These products are certainly cheap. The question now is are they safe?

The Baltimore Sun reports on a $4 million verdict awarded to two siblings in a Baltimore City lead paint case. Regrettably, the damage award will be reduced to $350,000, which was the cap on noneconomic damages at the time of the injury. Bruce Powell, a real nice guy I used to deal with back when I was defending lead paint cases (which seems like a lifetime ago) told the Baltimore Sun that he would challenge the state's cap on noneconomic damages. "You have a right to a jury trial, and you have a right to what the jury awards you," Powell told the paper. "The jury thought that they were compensating these people in a way that was fair, and that's not the case."

I wish Bruce all of the luck in the world and I agree with every word he said. But he has zero chances of overturning the cap.

The Maryland State Bar Association annual meeting had a discussion group on a topic entitled, “A Cure for the Courts: Are Health Courts the Rx for Maryland?” The idea behind health courts is that specially trained judges would hear medical malpractice cases in Maryland, without juries, deciding damages based on “schedules” for non-economic damages.

There are scores of problems with health courts. The most obvious is that pesky little Seventh Amendment which guarantees a right to a jury. The guiding principle behind citizen juries is regular people deciding what constitutes acceptable behavior and what the damages should be for a person's injuries. Because medical malpractice cases are frequently catastrophic injury cases, this is all the more reason why the community values matter so much in achieving a fair outcome. Specialized health court decisions would be made by government chosen "experts" that do not necessarily reflect the values of the local community with respect to either the issue of liability or damages. The framers of our Constitution feared these kinds of concerns, reflected in the Seventh Amendment right to a jury trial.

I understand this panel was sparsely attended. This is not surprising. There is virtually no interest in health courts in Maryland, not even from medical malpractice defense lawyers, who you might have thought would have attended this discussion in droves.

I do not think there is any inertia for health courts in Maryland. I'm not concerned that the Maryland State Bar Association would spend scarce resources on a topic that contravenes its own positions (the MSBA opposes initiatives that decrease "access to the court system"), nor do I mind that it is an issue for which I support the status quo. Certainly, two years ago it would have been a fair inquiry for the MSBA to raise issues related to changes in the medical malpractice damages caps, particularly in light of the political climate in Maryland. But I do think that it is not the MSBA’s place to essentially manufacture an issue out of thin air when there is zero groundswell from its members for the issue. My guess is this made it into program through the will of one person or a small number of people with authority positions at MSBA. I think the MSBA is doing a lot of wonderful things for Maryland lawyers, but I think the membership should create the issues for these discussion panels, as opposed to the tail wagging the dog.

One-hundred percent of our law firm’s practice is personal injury cases. We do not and will not take any defense cases even if we believe in the defendant’s case. Yet, last year I found myself on the other side of the coin as a defense expert. I served as a legal malpractice expert for a local defense firm on behalf of a plaintiffs’ personal injury lawyer in Towson. I believe this lawyer did not breach the standard of care according to his version of the facts (and, parenthetically, I believe the most logical version of the facts). Certainly, in this case, under the Plaintiff’s version of the case, the lawyer committed legal malpractice.

While I did not have the slightest trepidation about taking this case or the expert opinions I expressed, it was certainly an odd experience to be back on the defense side for the first time in over six years. Regrettably, from an experience standpoint, the case settled before I had the opportunity to be deposed. It would have been a particularly educational experience, because the legal malpractice lawyer who would have deposed me is a skilled and well prepared lawyer, who would have been effective in challenging my opinions. Taking a different role in a case certainly does change your perspective, and I think helps you think more creatively about your cases. (Similarly, I have been a law professor for over 10 years. It would be interesting to be a student again after all of the exams I have graded over the years. I think being a professor would make me a better student.)

Believe me, I am all in favor of plaintiffs’ personal injury lawyers suing other personal injury lawyers when one of us has breached the standard of care. The whole idea of lawyers "sticking together" is both absurd and wrong. Our lawyers handle legal malpractice cases where the underlying case is a catastrophic personal injury case. But I also think there is an obligation to be willing to come forward and testify on behalf of a fellow personal injury lawyer if you believe the lawyer has not breached the standard of care and committed legal malpractice.

Dr. Bruce Ammerman, a neurosurgeon and frequent expert in Maryland personal injury cases, died this morning at his office of an apparent heart attack.

Our lawyers have had a number of cases both with and against Dr. Ammerman. All of the litigation cases we had with Dr. Ammerman were when we were defense lawyers. In the last seven years as plaintiffs' lawyers, we have not had any litigation cases with him and have had him on the other side many times. Yet he is one of the few defense medical experts - although he also testified for plaintiffs occasionally as well - that our lawyers would also send our clients to see if they needed a quality neurosurgeon. Many of our current clients were patients of Dr. Ammerman. Beyond that, in spite of the litigation environment that often leads to a contentious relationship between opposing experts and lawyers, I have never heard any lawyers, who may have disagreed with his opinions in a case, say anything bad about Dr. Ammerman personally because he commanded respect and treated everyone with respect. He will be missed.

Funeral services Thursday August 9, 2007 at 11:00 a.m. at Temple Beth Ami, 14330 Travilah Road, Rockville, MD.

In the spring of 2006, the Anne Arundel County Circuit Court bench adopted its current discovery DCM plan, seeking to make its handling of civil and family law discovery disputes more prompt, consistent and effective. To survey the effectiveness of the new rules, the Anne Arundel County Circuit Court bench has prepared a survey for Annapolis area attorneys to complete.

I think it is fantastic that the bench in Anne Arundel County cares enough to listen to what its "customers" - lawyers practicing law in Anne Arundel County - think about the court's discovery rules. I read a lot of blogs talking about how disconnected some courts are to the lawyers practicing in those courts. In the last year, Anne Arundel has added Courtcall and E-Filing, all efforts to make the system a better one. It is good to see another example of how Anne Arundel County is trying to put together the best system possible so that lawyers and their clients are able to get a fair and efficient day in court.

If you are an Anne Arundel County lawyer, take five minutes and fill out the survey. There is a link to the survey in the first paragraph of this blog post.

You can complete an online survey in 3 minutes or less to give your opinion. You may respond anonymously, if you desire to. Go to

The Circuit Court bench may make revisions to its DCM Discovery policy based on these survey results. Alternately, if the responses are minimal, the Court may decide that no changes are necessary.

The Institute for Legal Reform apparently ranks states in terms of the legal climate for businesses. The study is obviously flawed. The results are determined from a survey of the 1,599 in-house general counsel lawyers working for larger corporations - not exactly an unbiased group. For personal injury lawyers, it is also worth noting that insurance companies, whose votes should receive more weight in considering the tort climate, made up only 5% of the total sample. I suspect most of these companies are focused on employment law claims, which are a very different animal from tort claims. Still, with these caveats, I think there is at least something telling about the study. Delaware, as always, was the clear "winner" in the poll. Here are the rest of the rankings:

2. Minnesota
3. Nebraska
4. Iowa
5. Maine
6. New Hampshire
7. Tennessee
8. Indiana
9. Utah
10. Wisconsin
11. South Dakota
12. Virginia
13. Kansas
14. Connecticut
15. Arizona
16. North Carolina
17. Oregon
18. Massachusetts
19. New York
20. North Dakota
21. Colorado
22. Wyoming
23. Michigan
24. Ohio
25. Washington
26. New Jersey
27. Vermont
28. Nevada
29. Maryland
30. Idaho
31. Georgia
32. Pennsylvania
33. Kentucky
34. Missouri
35. Rhode Island
36. Florida
37. South Carolina
38. Oklahoma
39. New Mexico
40. Montana
41. Arkansas
42. Hawaii
43. Alaska
44. Texas
45. California
46. Illinois
47. Alabama
48. Louisiana
49. Mississippi
50. Virginia

Incredibly, Maryland “fell” nine rungs on the Institute of Legal Reform’s ladder from 2006 to 2007, because of “significant declines” on “four” key elements: (1) handling of the discovery process, (2) perception of the competence of judges and judges’ impartiality, and (3) having and enforcing meaningful venue requirements (astute mathematicians may note this is only three categories, not four).

Have I been in a coma for the last year? There have been no significant changes on any of these fronts from 2006 to 2007. This is nonsense. But, however flawed, I enjoyed seeing a ranking of these states and I think personal injury lawyers in every state would find of interest where their state ranks on this list.

As regular readers of the Maryland Personal Injury Lawyer Blog well know, I have been critical of the Bush administration’s decision to change the length of time a truck driver can drive. (Actually, that’s wrong, I think the hours should be reduced.) For 60 years, truckers could drive for 10 hours at a time. The Federal Motor Carrier Safety Administration recently changed the regulation to 11 hours at a time. Does anyone think this would not lead to more truck accidents?

Fortunately, the D.C. Circuit Court threw out the rule, finding that the FMCSA must adequately explain the reasoning behind the decision to add the additional hour. The court found that the “agency freely concedes that ‘studies show that performance begins to degrade after the 8th hour on duty and [the degradation] increases geometrically during the 10th and 11th hours.’”

Common sense will tell you this is a bad idea. The Teamsters, who represent these guys behind the wheel, also agree it is a bad idea for drivers to spend 11 hours behind the wheel of such a weapon. This really tells us something. Public Citizen, Citizens for Reliable and Safe Highways, Parents Against Tired Truckers, and Advocates for Highway and Auto Safety also agreed. I can tell you I spent three hours behind the wheel of my wife’s minivan on my family’s recent vacation and I’m sure I was not as sharp in Hour 3 as I was on Hour 1. This ruling will go into effect in September and our roads will be just a little bit safer.