Maryland Injury Lawyer Blog

According to a recent poll on jury duty, the answer is yes. Fifty-eight percent of those surveyed believe that a jury is fair and impartial all or most all of the time. Even more interestingly, half of those surveyed said they would expect a jury to give a fair verdict as opposed to a judge. Only 23% selected a judge over a jury (27% were unsure). In other words, by a margin of more than 2 to 1, we trust juries more than judges. Only 18% of African-Americans and 19% of Hispanics chose a judge.

Maybe our founding fathers were on to something with this whole “jury of our peers” thing. But I don’t think this is a knock on our judges. Instead, I think people would prefer to be judged by regular everyday people like themselves who are outside of the process.

In light of the recent Medtronic ruling and drug preemption cases pending before the Supreme Court, I would like to add one more question to the survey: Do you think a jury or the FDA is more likely to protect you and your family from a defectively designed pharmaceutical drug or medical device? Someone do this survey and send the results to the Supreme Court.

Thanks to the Florida Jury Selection Blog for the link to the study.

The Supreme Court opinion in Riegel v. Medtronic was issued this morning. I'm just starting to read it now and will comment later today about the holding once I get a chance to actually read the case. Scalia wrote the opinion which scares me but seven justices join Scalia's opinion so I do not think the holding will be too radical. But I will get back to you later today...

Follow-up note: I just finished the case and will not give a full response today. Quick summary is that we lost. The good news is that Medtronic v. Lohr still appears to be good law and the Supreme Court's holding (I think) will be limited to medical devices that receive premarket approval from the FDA (but Scalia even appeared to hedge on that). The Court decided to ignore its own rule of statutory construction not to be "guided by a single sentence or number of sentences" but to instead look to the "provisions of the whole law, and to its object and policy." Instead, it turned to a few sentences to its liking and ignored what the Court knew was the intent of Congress. Classic Scalia.

I think everyone agrees that there is no suggestion in the legislative history of § 360k(a) that injury victims would lose their only vehicle for recovering compensation for injuries caused by negligent or inadequately labeled PMA devices. Say what you want about the value of legislative history but not a single member articulated the view that this statute would preempt state tort law claims. In fact, a House Report of the bill notes with apparent approval that California already had adopted a regulatory scheme for medical devices which completely contradicts the Court's holding. The legislative history of the MDA is so in conflict with the Court's holding that it might as well have made a new rule that legislative history is never of probative value.

More generally, the whole purpose of this statute was patient safety. In fact, as Scalia points out, it was the Dalkon Shield debacle that lead to the MDA in the first place. Okay, I'm rambling at this point. I'm not proofreading this. I'm just going to hit send. Then, I'm going to go home and play with my kids. When they are in bed, I'm going to send some money to Obama (gee, can you do that on-line?) and hope that he will help Congress sort out this mess in January.

The Maryland Daily Record reports that a Baltimore jury awarded $82,000 to an 8-year-old boy who only briefly exhibited elevated levels of lead in his blood.

In May 2000, the boy’s level was four micrograms of lead per deciliter of blood. In December, his level rose to 29 micrograms. I am a parent of three small children and, as a defense attorney, have defended lead paint cases in Maryland. If my child had a lead level of 29, I would absolutely freak out. In this case, thank God, as quickly as the level rose, it fell. By December 28 the young boy’s level was 19. It fell to 12.6 in February and then down to 8.6 in March.

The Plaintiff’s lead paint lawyer conceded that the boy was doing well. Apparently, he was doing great in school and he tested in the 97th percentile for reading, but there is no question that lead harms children. Should the fact that the child is doing well be a defense? We know lead paint harms children and we know this child, while doing great now, had cognitive delays. Would he be in the 99th percentile but for the lead? So I think the jury’s verdict was probably very reasonable (although you would have to be on the jury to really render an opinion).

The lawyer who defended this lead paint case, John H. Doud, III, a solo practitioner representing the uninsured landlord in the case, made what I think was an awful comment after the verdict. Mr. Doud said the verdict sends the wrong message to landlords. He said the message is that "when your first tenant sues you, I would get into another business.”

This is not the take-home message from this case. There is not strict liability in lead paint cases. This little boy could only recover if his lawyer proved that the landlord had actual or constructive knowledge of the problem and did nothing to solve it. In other words, the landlord has to know that his property could cause brain damage to children and still not bother to fix the problem. This burden in lead paint cases is more stringent than general negligence claims. So, that is not the lesson to landlords about lead paint that should come from this case. Instead, the lesson is if you are going to be cavalier about exposing children to lead paint that is known to cause brain injury, you do so at your own peril. The landlord should pay the verdict and thank his lucky stars that Maryland makes obtaining punitive damages so unreasonably difficult.

There is another good blog post from the Drug and Device Law Blog this time regarding electronic discovery with respect to on-line diaries and the social networking like Facebook and MySpace. I have not had this issue arise with one of our clients but it is only a matter of time. Anything on there inconsistent with plaintiff's complaints is going to be used against them (as it should in most cases).

Speaking of which, you can find my Facebook profile here and my Linkedin profile here. If you are on Facebook or Linkedin, add me to your list of friends.

With the preemption arguments raging on in the Supreme Court and in circuit courts around the country, we have yet more evidence that making the FDA the gatekeeper for product liability claims is tantamount to naming Roger Clemens the new performance enhancing drug czar. The FDA is under fire for approving the sale heparin, Baxter’s blood-thinning drug, without bothering to inspect the plant in China that manufactured the heparin's active ingredient. Peter Barton Hutt, a former top FDA lawyer, said that since 1980 the FDA has had a policy requiring that plants be inspected before drugs are approved for sale. “It was obviously a glitch” that the FDA didn't bother to inspect the site, said the F.D.A. through a spokesperson.

On Monday, Baxter announced that it had temporarily halted production of its version of the anti-clotting drug heparin because of about 350 bad reactions linked to heparin, including four fatalities, primarily in patients undergoing kidney dialysis and heart surgery. The active ingredient used to produce heparin was sold by Baxter International until sales were suspended after the aforementioned fatalities and complications.

I love the FDA's response. "While no FDA inspection of the facility has been conducted to date, preparations are being made to perform an inspection as soon as possible. We have already requested expedited access to the facility, facilitated through a recently signed agreement with the Chinese State Food and Drug Administration. FDA also has requested the facility's inspectional data and adverse event reports connected to the product." Thanks guys. Now that the horse is out of the barn, we are so grateful for you to take the time to close the door. United States Supreme Court? Are you there? I hope you are paying attention.

Our Baxter heparin recall lawyers are reviewing both individual and class action defective heparin recall cases throughout the country. If you want to discuss your case with one of our Baxter heparin recall lawyers, call us for a free consultation at 800-553-8082 or click here for a free Internet consultation.

The case of Titan v. Advance was decided yesterday by the Maryland Court of Special Appeals. Titan is a case where the Plaintiff alleged negligent repair of a roof that led to the clogging of a roof drain, which then resulted in the flooding of the Plaintiff’s premises on Eastern Avenue in Baltimore, Maryland, at Crown Industrial Park. After a three day trial, the jury found in favor of the Defendants.

As you might have expected, the amount of rain after the job was completed was relevant. Defendants introduced, over objection, a certified copy of the U.S. Department of Commerce’s weather reports from Baltimore-Washington Airport, which reported rain patterns at the airport between the day roofing work was done and the date of the flooding off the roof. Plaintiff objected that the weather at Baltimore Washington Airport on that day was not relevant because it was 10 miles from the site.

The Maryland Court of Special Appeals, in an opinion by Judge Arrie W. Davis, found that the documents were relevant because the parties disputed the amount of rainfall. The court further found that in spite of the length of the documents, the jury could reasonably interpret the recorded rainfall amounts and no expert opinion was needed to explain the documents. As to the 10 miles between Baltimore Washington Airport and the site of the property, the court concluded this went to the weight of the evidence as opposed to admissibility.

Interestingly, the Plaintiff filed a claim with its own insurance company, Hartford, who paid some, but not all, of Plaintiff’s damages claim. Specifically, it did not pay all of Plaintiff’s business interruption loss. Plaintiff originally sued Hartford who prevailed on the always raised, but rarely used, affirmative defense of accord and satisfaction. As a part of the settlement in which Hartford paid a nominal amount, Hartford released its subrogation claim in this case.

In another issue of interest to personal injury lawyers, the question of when the existence of insurance can be introduced was also at issue. In most accident and medical malpractice cases where the client is being sued individually, plaintiffs want to get into evidence that the defendant has insurance to cover the claim. In Maryland, under Maryland Rule 5-411, generally evidence of liability insurance is not admissible. In this case, Plaintiff was cross-examined about its dealings with Hartford. Apparently, one of the Plaintiff’s agents made assertions to Hartford inconsistent both with Plaintiff’s contentions at trial and statements the agent was now making. The court found that the plain language of Maryland Rule 411 makes clear that evidence of insurance is admissible when offered for another legitimate purpose.

Certainly, the trial court did not commit reversal error in admitting this evidence. Usually the court will make every effort to shield the insurance issue from the jury by encouraging a stipulation that the statements were made, but still not disclose to the jury that they were made to an insurance company. In this case, given the context of the quoted testimony, it would have been very difficult to mask from the jury that there was underlying property insurance.

This is a worthwhile case for Maryland personal injury lawyers to read, both on the issue of admissibility of insurance, and with respect to the admission of weather reports, although the case does not break any new ground. You can find the Titan v. Advance here.

Last month, retired Howard County Judge Dennis M. Sweeney wrote an article in a series of articles he is writing for the Daily Record. The latest article discusses voir dire. One point Judge Sweeney makes is that judges have an aversion to proposed voir dire questions that seem to be uniform in every case the lawyer tries. In my last trial, the defense lawyer did not change the names of the parties from the voir dire that had apparently been cut and pasted from the last case. Judge Sweeney writes that they may poison the trial judge to ignore specific voir dire questions – usually put at the end of voir dire consistent with cut and paste practices – that may have more merit.

The article also points to dicta in Landon v. Zorn, 389 Md. 206 (2005), a failure-to- diagnose medical malpractice case in which the Plaintiffs appealed a defense verdict. The basis for the appeal was the trial judge’s refusal to ask whether the jury panel had any “preconceived opinion or bias or prejudice in favor of, or against Plaintiffs in personal injury cases in general and medical malpractice cases in particular?” The Maryland Court of Appeals affirmed in a unanimous opinion written by Judge Clayton Greene, Jr. that it is the responsibility of the attorneys to “propound voir dire questions designed to elicit potential bias from jurors, and not to bootstrap a tort reform argument on appeal to a general question inquiring into any potential ‘bias or prejudice’ against plaintiffs in personal injury or medical malpractice cases.” But as Judge Sweeney notes, the court did indicate that the lower court may have had an obligation to include a question more tailored to the plaintiff in that particular case if requested by the attorneys. Judge Sweeney went on to say that this “places counsel in the position of having to ask the question in many different formulations to hit on the one that may be correct and specific enough.”

But Maryland trial judges love to rush through voir dire as it is so I shuttered to imagine giving multiple formulations to these judges. I wrote to Judge Sweeney and asked if he had any solution to the Landon v. Zorn problem of having to ask the question in many different formulations to find the most appropriate, noting my concern about how multiple formulations of the same question might risk annoying the court.Judge Sweeney offered this practical response:

“I agree with you that putting multiple formulations in the voir dire could be counter productive if the judge is not receptive. Perhaps, a better way to handle it is to have the alternate formulations ready to propose if the judge tells you he will not ask the first proposal. Sometimes making the question more focused or narrow will get a judge to ask a question on the subject even if the question asked is not your first preference. If you feel strongly that the issue is one of great importance in picking an unbiased jury, I would not simply let a denial go by without communicating that feeling to the judge and providing him or her with an alternative formulation. You can even invite the judge to fashion his/her own as long as it fairly covers the issue. Obviously you have to pick the case and the issue carefully.”

It sounds like this solution gives Maryland lawyers the best shot at getting the court to pick a helpful voir dire question while also providing a legitimate appellate issue if a legitimate question is refused.

I’ve never conducted voir dire in another jurisdiction but I observed voir dire in other states. The difference is amazing - as different as checkers and chess. Do you think we should have more extensive voir dire in Maryland? I asked Judge Sweeney that as well:

“My answer is that it depends. We pick juries quickly in Maryland and there is a benefit in that, but obviously we want fair juries. My experience has been that jurors are incredibly conscientious and work hard to reach a fair decision. I don't know that putting prospective jurors through a lot more questioning is going to improve juries. However there are cases where it would probably be better to have additional questioning on issues of potential bias. I would not want to abandon our very efficient system which I think is generally fair in the process. It is also important to remember that jurors are basically forced labor given the pay they receive which is next to nothing. We should not waste their time or invade their privacy more than we absolutely need to get a fair jury.”

I’ve always been in favor of more elaborate voir dire because I really believe there are a small minority of jurors that plaintiffs are never going to be able to get to no matter what the facts. To a lesser degree, I’m sure there are also some jurors that defendants do not have a fair shot to persuade. So I think a process of more open-ended questions would give lawyers an opportunity to flush out more dogmatic thinkers and I think the current process favors defendants in personal injury cases. But, obviously, Judge Sweeney is right that there are judicial economy issues that strongly favor the current process and the mere asking of more questions is not going to weed out many biased jurors.

Thank you to Judge Sweeney for taking the time to share his thoughts with me.

Point of Law has an interesting blog post on a new study regarding contingency fees. I found two conclusions of interest.

First, the study found that people who had the financial means to pay attorneys’ fees up front still preferred a contingency fee arrangement, even if that arrangement meant they were ultimately likely to pay more in fees. Apparently, affluent trial lawyers were also included in the experiment as imaginary plaintiffs, and they too chose the contingency fee agreement over the hourly billing rate. The authors explain that our instinct to be “loss adverse” is the main reason people prefer a contingency fee arrangement even if they expect it will result in higher legal fees. This theory may also explain why people are far more unhappy when they lose $100 than happy when they find $100.

I suspect another reason for this preference that the authors do not point to is that it is less stressful to have some level of cost certainty. I know I do not like paying anyone by the hour, especially when I have no idea how many hours will need to be expended. I would rather just be given an all inclusive price to solve the problem.

Another reason clients may prefer a contingency fee arrangement is that it makes sense. In any business relationship, if you are able to forge a deal where the parties are working with vested interests, you are better off. The personal injury lawyer-client relationship is one of the cases where the parties’ interests line up the best, and the defense lawyer-client relationship is one where the parties’ interests line up the worst. I began my career at a defense firm and clearly remember when one group in our law firm defeated a nationwide class action, saving the client millions of dollars. Everyone looked like they had just lost their best friend. Why? Because victory meant the work would dry up. Is there a different way for defense lawyers to be compensated that would make more sense? If there is, I can’t figure it out. It is just one of those business relationships where the interests of the involved parties are very hard to align.

The study also draws some interesting conclusions about the phenomena that most contingency fee personal injury lawyers charge the same fee. Some have theorized that relatively uniform pricing may be inefficient and there is textbook economic support for that theory. However, the authors conclude that a standard rate endures among personal injury lawyers because of a process called “assortive matching.” In other words, injury victims with the best cases contract with the lawyers with the best reputations, second-best cases are handled by the attorneys with the second-best reputation, and so forth.

This theory largely holds true with very sophisticated clients and because of referrals from other lawyers. As our practice and reputation have grown, the average size of our cases has increased exponentially. But all too often this theory does not hold true. Unsophisticated clients believe that the biggest and best firm in town is the one that has the most television advertisements. Or they believe the guy that got them off on a DWI or wrote a will for them a few years ago, who has never tried a personal injury case, is the best personal injury lawyer to turn to when their wife is killed in a truck accident. In fact, some of the biggest cases we in our office have come from criminal lawyers whose clients return to them when they or someone they love is injured or killed.

So while I think the assertive matching theory holds true to some extent for personal injury lawyers, it often fails. This is not a bad outcome if the lawyer getting the cases does the right thing both for the lawyer and the client and refers the case to a lawyer who has experiencing handling catastrophic cases. But it can be a disaster when the wrong lawyer has the wrong case.

Super Bowl 42 was a great Super Bowl for Miller & Zois for two big reasons. First, buried in our testimonials on our website is a great testimonial from one of our former clients, future Hall of Fame defensive end Michael Strahan, who was in the limelight last night putting relentless pressure on Tom Brady. Second, we sued the New England Patriots about 7 years ago in a medical malpractice case on behalf of one of the Patriots' former players. I think I filed more motions to compel and motions for sanctions against the Patriots than in every other case combined since then. They just could not comply with the most basic requests. Since that case against the Patriots, which ended with a settlement after almost five years of litigation, my favorite team in the NFL has been whoever was playing the Patriots (even though I like almost all of their players).

I hope everyone enjoyed the game. A substantive post should follow later today.