Maryland Injury Lawyer Blog

Sarah Palin, the governor of Alaska, is John McCain choice to be his vice-presidential candidate on the Republican ticket for the White House, according to CNN. Sarah Palini is a first term governor in Alaska.

McCain I think is actually around 108 years old because I think - bless him - those years as a POW are like dog years. So if McCain wins, the chances of Palin assuming the presidency is pretty high. But I do think Palin is ready to be president. After all, she served not just one but two terms on the Wasilla City Council from 1992 to 1996. Later, she was elected mayor of Wasilla. What more could you ask for?

Interestingly, the Alaska senate is investigating whether Governor Palin used her office to try and fire her ex -brother-in-law from a state trooper's position. Palin claims these allegations are false but an independent investigator to looking into the allegation.

Seriously, she sounds like an impressive woman, there is no doubt about that. She has five children which makes me all the more impressed with her. But a heartbeat from the presidency?

Wait, this is a blog for personal injury lawyers. Okay, Palin on tort reform. I think the record is sparce. I know she supports punitive damages in the Exxon Valdex case. Not exactly a tort reform position. In many states, like Maryland, punitive damages would not even be available as a matter of law. So she's to the left of the Maryland Court of Appeals on this issue. Interesting.... Now, what is her view when it is not a tort reform issue central to the economy of Alaska? My guess is that it will be similar to what we saw with the Mattel trial earlier this week: punitive damages and plaintiffs' lawyers are hurting our economy unless I need one myself.

I'm just absolutely stunned by Palin's selection. Again, I'm not saying she is not an impressive woman because clearly she is. But I know a lot of impressive people I don't want to be running our country.

The Baltimore Injury Lawyer Blog has a post about a settlement John Bratt had just before trial in a car accident case this morning. The blog discusses the timing of settlement offers and how settling accident cases on the "courthouse steps" - particularly in small and midsized cases - is probably not in the best interests of the accident lawyer, the client, the defendant, or the insurance company. The only clear cut winner is the defense lawyer who gets to bill the file to the fullest without having to risk getting a bad outcome he/she has to explain to the client.

I hope I am not overplugging the Baltimore Injury Lawyer Blog. But I like the blog a lot and want to expose the Maryland Injury Lawyer Blog readers to it. John is doing something I should do more often: offering actual war stories from the trenches that other Maryland accident lawyers will find of interest and can use in their own practice.

Insurance Settlements, a two volume treatise for which I am the lead author, is now available from James Publishing. This treatise is for personal injury lawyers handling auto accident, truck accident, medical malpractice and product liability cases with a lens toward getting the best possible outcome at all stages of these cases (though trial). The better title for the book - with the benefit of hindsight - would have been "Maximizing the Value of Personal Injury Cases." Maybe I can convince James Publishing to change it down the road.

I’m excited about the book. If you are interested getting a copy, click on this James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Questions or Comments."

The Baltimore Sun reports today that a federal jury California awarded Mattel a $100 million verdict in their copyright infringement lawsuit against Bratz-maker MGA Entertainment Inc.over the rights to the popular Bratz doll franchise.

"Mattel has pursued this case first and foremost as a matter of principle," Mattel CEO Robert A. Eckert said in a statement.

Really? Yet they asked for jury for punitive damages and $1.8 million dollars. I find it amazing how these companies decry punitive damages and “shoot for the moon” plaintiffs’ lawyers until they got their shot on the left side of the v.

By the way, as a shareholder of Mattel, I don’t want them pursuing copyright claims out of principle. We are not talking about human rights here, we are talking about rights to a bunch of dolls. Just try to honestly and ethically maximize profits for me, okay? (All right, I’m not really a shareholder of Mattel. But you get the point.)

I just hung up with an adjuster from Erie. One thing I can say about Erie is that the Erie adjusters – particularly in larger cases – are pretty sophisticated. Agree or disagree with them, they are usually very sharp. Their defense lawyers – Erie relies on Rollins Smalkin a lot in the Baltimore area and McCarthy Wilson throughout much of the rest of Maryland – are very competent and generally easy to deal with on personal injury claims. So when I see an Erie defendant, I expect a worthy but reasonable adversary.

The call was for settlement on an uninsured auto accident case. The client lost $48,000 in wages and $71,000 in medical bills. The Erie adjuster does not question the legitimacy of the wages or the medical care rendered. Instead, she wanted to know whether my client had been paid for the lost wages and the amount of his medical liens. She called these “the big unanswered questions in the case.”

I explained that none of these issues were relevant at trial under Maryland’s collateral source rule. The Erie adjuster responded that she thought that we were not talking about trial value, we were talking about settlement. Somehow, I thought these two things were related.

This is a case where Maryland’s new first party bad faith law is going to come in handy. I suspect after talking to the client, the next step is going to be the Maryland Insurance Commission.

The Wall Street Journal published an article today on law schools gaming the system to improve their U.S. News and World Report rankings. It focuses in part on the rise of the University of Baltimore School of Law, which has risen dramatically in many ways under new dean Phillip Closius, including the U.S. News and World Report rankings.

I think everyone has been "gaming the system" to some degree except for the University of Baltimore Law School and a few other schools. Now, UB is playing along just like everyone else. As Dean Closius points out, some of the things that the U.S. News and World Report seeks - like tracking employment better after graduation - help the students and alumni.

The University of Baltimore Law School has been spinning its wheels for years watching other law schools pass it on the food chain. Now Dean Closius steps in and not only talks about change, but is actually making quality changes people can see. (Boy, I hope to be thinking the same thing about President Obama in a few years.) He is intent on seeing the University of Baltimore become a real power, not just in Baltimore, but regionally and nationally. The more amazing thing is that people associated with the law school now believe things are possible that they would not have imagined even three years ago.

The Wall Street Journal interviewed me for this story. I had originally thought the angle of the story was going to be the rise of the University of Baltimore Law School. Obviously, that would have been the perfect spin for the school. But in spite of the angle of the article - gaming the rankings - I think the article came out well for the University of Baltimore.

The Wall Street Journal has an editorial with an anti products liability lawyer spin. No surprise. But what is surprising is that I actually agree with it.

In light of Enron and other business collapses that left stockholders holding the bag without any real picture of the financial condition of the company, the Financial Accounting Standards Board wants to tighten standards. One requirement would make companies account for the potential cost of ongoing litigation not just with respect to attorneys’ fees but with respect to the actual value of the claims. The Wall Street Journal editorial says product liability lawyers will be able to use the information to extort settlements and influence jury verdicts.

I’m not worried about either of those outcomes no matter how many times the editorial uses the phrase "extort settlements." But I do think there is a risk of forcing a defendant to publicly estimate settlement and verdict values because I think it does tip off product liability lawyers and creates a floor for the value of any mass tort claim. I also think the editorial is correct that predicting the trajectory of long and complex litigation is inherently unscientific. Mass tort cases are like the stock market in that their values are always changing. A good trial outcome or even a good expert deposition in an MDL can increase or decrease the value of a case. Moreover, I’ve been involved with mass torts from both sides and believe knowledge of the true value of the case is rarely known even to the insiders until the advanced stages of the settlement process.

I appreciate the concerns of investors wanting to know the exposure imposed by lawsuits. I just think the downside of stacking the deck against the companies in a product defect case by requiring them to show their hands to products lawyers is not worth the tradeoff.

The Baltimore Injury Lawyer Blog has a interesting post about Baltimore City juries from the perspective of a Maryland accident lawyer.

Walter Olsen at Overlawyered comments on the selection of Delaware senator Joseph Biden's by Senator Obama as the Democratic vice-presidential nominee and his support of injury victims in tort reform and other matters. (Here and here.) Olsen calls injury victims "trial lawyers" which underscores how conservatives have done a much better job at framing political issues on their terms. No one wants to support trial lawyers. Injured victims engender a great deal more sympathy. I've been reading George Lakoff's great book on this concept, which he calls framing. The book offers political tactical ideas that are also useful to trial lawyers on both sides of the v.

With Democrats likely to make gains in the House and Senate, I have not given much thought to the candidates thoughts on tort reform and related issues because I do not think anything meaningful is going to happen with tort reform on a national level. Besides, I vote as a citizen, not as a trial lawyer. If Obama and McCain both took the other's view on tort reform, I'd still vote for Obama.

Actually, there is one big issue on the radar screen right now in this election from a trial lawyers' standpoint. (Can you tell I'm thinking as I'm writing? It is a Saturday.) I expect Congress to pass a bill overturning the FDA preemption win for drug companies in Riegel v. Medtronics.

I think a President Obama would sign such a bill; I'm not sure about a President McCain. I'm pretty sure McCain is not a big supporter of the proposed bill. The question is would be whether he would spend the political capital to veto it.

The Baltimore Sun reports that the presidents of the University of Maryland, Towson University, Washington College, Johns Hopkins, Goucher College and Washington College among other schools have signed off on a letter urging Congress to lower the drinking age to 18, saying we need to stop relearning the lessons of Prohibition.

We need the authors of “Freakanomics” to help us sort this out. There is no question that drunk driving deaths decreased when the age was increased from 18 to 21. But the 80s also saw a great increase in awareness at the same time we were raising the drinking age around the Country.

I saw a Happy Days episode – filmed in the 70s - where Potsie, Ritchie and Ralph were having a little flea market at Arnold’s and they were selling a driver’s license Ralph billed as “Buy this and drink and drive in all 50 states.” Can you imagine that today? Lou Dobbs' head would explode.

(As luck would have it, the Baltimore Sun also reported today that yesterday morning a statute of Fonzie was unveiled in Milwaukee. Shirley Feeney (Cindy Williams) was on hand. When some crackerjack report asked Ms. Feeney for comment on the opinion of some that it harms Milwaukee’s cosmopolitan image to remind everyone that these mindless television shows were set in Milwaukee, she said: “Who are these people? Let’s get a loudspeaker and drive through the neighborhoods. Why wouldn’t they want to be part of the pop culture as well as the ballet, the opera and other arts?” Statistically, I find the occurrence of these four events improbable: (1) Some reporter taking a hard journalistic angle at this story and asking that question; (2) Ms. Feeney’s answer suggesting we get a loudspeaker and go through the neighborhoods, (3) the writer of the story and his/her editor publishing the quote, and (4) my taking up 175 words with this digression when talking about such an important issue. I think the odds are at least 10-1.)

The federal government forces states to keep their drinking age at 21 years via the National Minimum Drinking Age Act, which mandates that states with a drinking age lower than 21 will lose 10 percent of their federal highway funding. No state can afford this loss.

I’m against lowering the drinking age. I don’t think that because there is a problem with underage drinking that “doing something” is the solution to the problem. Sometimes “doing something” can make a bad problem worse. But these university presidents are smart people. When a lot of smart people who are close to a situation take such a strong position, we would all be foolish not to hear them out.

The Wall Street Journal publishes an editorial bashing the effort in Congress to overturn the Supreme Court’s ruling in Riegel v. Medtronic. Nothing new in the editorial, just a repeat of the policy arguments Medtronic successfully advanced in Riegel.

I found the last line of the editorial of interest:

If Congress really wants to improve the quality of medical products for consumers, it would better spend its energy on reforming the bureaucratic morass that is the FDA.

No acknowledgement was made of the incredible irony of the author’s advocating an organization he calls a “bureaucratic morass” to be the last and only safety net for protection and justice for people who have suffered catastrophic life altering injuries.

In related news, Pharmalot notes that 47 state attorneys generals, former FDA commissioners, members of Congress, constitutional experts and editors of The New England Journal of Medicine have filed their own briefs arguing against preemption in Wyeth v. Levine. I'm not going to read and break these briefs down. But I'm also guess our friends at the Drug and Medical Device Blog are not going to either. But, in an upcoming post, they will break down the DRI amicus brief for the 11th time, this time including an analysis of the suit and tie color schemes worn by the 72 lawyers who wrote the brief (shocking sneak preview: they love it!).

Warning! I'm going off the resevation for just a paragraph....

I watched with great interest the Obama-McCain interviews with pastor Rick Warren at the Saddleback Church in Orange County, California Saturday night. I came away impressed with all three men. I read a few hours ago while eating dinner (and with 3 kids hanging all over me) an editorial by Sally Quinn that sums up my impressions of those interviews about as well as I've ever read my thoughts summed up by someone else.

I do this only twice a year because I know my regular readers - of which there is a decent number according to Google Analytics - don't care about my thoughts on who should be the next president or who the Ravens are going to start at quarterback (it pretty much has to be Boller, right?). Anyway, my post in the morning will be back on topic.

On Monday the Montana Supreme Court ruled in a 5-2 decision that a father's wrongful death medical malpractice claim on behalf of his 16 year old son was time-barred.

In Runstrom v. Allen, the plaintiff' son sustained a broken femur in an ATV accident (I wonder if was a Yahama Rhino ATV, which has been the subject of numerous lawsuits around the country). The ambulance took him to the emergency room in Great Falls where he was treated by the defendant, an orthopedic doctor. Plaintiff's son regrettably died the next day. Plaintiff immediately blamed the doctor and consulted with medical malpractice lawyers but for whatever reason did not pursue a case.

Almost 4 years later, plaintiff read an article in the Great Falls Tribune reporting on an administrative proceeding against the doctor; the article referred to a peer review report and some of the doctor's former patients, whose names had not been released to the public. Plaintiff believed that his son was one of those unnamed patients, and after reviewing the documents, filed a medical malpractice claim with the Montana Medical Legal Panel (Maryland's version of Health Claims Arbitration).

Montana's medical malpractice statute of limitations reads a lot like Maryland malpractice statute. In Montana, medical malpractice actions alleging injuries or wrongful death must be brought within three years from the date of injury or from when the plaintiff first discovered the injury. Again, like Maryland, claims may not be brought after five years from the date the injury was incurred.

Accordingly, the Plaintiff’s medical malpractice claim would appear barred by the statute of limitations on its face. Plaintiff asserted, however, that minority polling delayed the running of the three year statute of limitations and that because his son would have lived two more years until he reached the age of 18, the statute of limitations for his claim did not begin to run until his son had reached the age of majority.

The doctor's medical malpractice lawyer disagreed, contending that the person at issue is not the decedent, which is how the court found.

The nuances of Plaintiff's argument are too involved for this blog post (read: I don't feel like breaking them down) but they are spelled out exceptionally well in William A. Rossbach's (Rossbach Hart Bechtold, PC in Missoula) amicus brief on behalf of the Montana Trial Lawyers Association). The Montana Supreme Court does a fantastic thing by publishing not only the opinions but all of the briefs that were submitted. You can find the Montana Trial Lawyers Association brief here and the Montana Supreme Court decision here.

The Baltimore Injury Lawyer Blog has a great post on an article I missed about how the Baltimore Sun learned of the apppointment Judge Mary Ellen Barbera to the Maryland Court of Appeals. The post includes a good lesson for personal injury lawyers: you never know who is listening.

Last week, I wrote about a new opinion from the Missouri Supreme Court that found that a driver could recover emotional damages in a lawsuit against the parent of a child that was killed in a truck accident. Today, I found Taylor v. Mucci, a Connecticut Supreme Court issued on Tuesday that reaches a different conclusion in a slightly different context that involves the interpretation of "bodily injury" in an insurance policy.

On Christmas Eve in 2004, the Plaintiff's minor son, Andrew, was struck by car driven by the Defendant. Andrew’s case settled but Plaintiff maintained a claim for negligence for emotional stress she suffered having witnessed the accident.

At the time of the accident, the Defendant had a 100/300 insurance policy with Metropolitan Property and Casualty Insurance. The trial judge ruled in favor of the defendant, finding that the insurance policy did not cover claims for bystander emotional distress.

The Connecticut Supreme Court agreed that the plaintiff's allegation of bystander emotional distress resulting from witnessing his son’s injuries does no constitute bodily injury as that term is defined in the Metropolitan insurance policy. The court also found that Andrew’s mother could not recover under the insurance policy language because the payment of the $100,000 per person limit to Andrew also exhausted her claim.

I was a little confused because the Court begin the opinion stating it was affirming the trial court's entry of summary judgment in favor of the driver defendant but it then concluded solely in terms of whether the insurance company is applicable. I am not sure why in this case on necessarily relates to the other but I think it might have involved some sort of stipulation that that the insurance company would pay for policy limits if the Connecticut High Court found that there was coverage.

Accordingly, if my understanding is correct, I am concerned that the court is saying that claims for emotional distress are compensable but the insurance policies language that defines "bodily injury" does not provide coverage. This will leave negligent defendants exposed to a liability for claims that are clearly foreseeable from car and truck accidents. States interfere with policy language in insurance contracts as a matter of course. Why make a distinction? This is something I would expect the Connecticut Trial Lawyers Association to be working on in Connecticut's next legislative session.

Taking off my personal injury lawyer and a hat for just one second, I am a little bit uncomfortable with emotional distress claims in all but the most serious of claims. I believe that there should be a cause of action for emotional distress claims. But if I were sitting on a jury, I would not award significant damages in anything other than most extreme cases. This Connecticut case does not flush out the basis for the mother's emotional distress claim.

You can read the full opinion here.

The Wall Street Journal has a good article online about the preemption battle that is being waged the FDA's bureaucrats in the courts and in Congress. The last line of the article says that "Some drug companies are telling plaintiffs' lawyers that if they settle their cases now, they won't pay as much to the plaintiffs as they would have six months ago, before the Supreme Court announced that it would hear the Wyeth case. A lawyer negotiating a settlement with one drug maker said company executives told him it wants the 'Wyeth discount.'"

I don't think many cases are going to be settled for a "Wyeth discount" because both sides seem to think they are going to win. I cannot imagine how the court could find that there is conflict between state and federal law in drug cases because I think it is clear that federal labeling requirements create a floor for state tort claims, not a ceiling. Wyeth cannot hide behind the FDA in a warnings claim because it can give any warning that it likes. But then again, I predicted we would win Riegel v. Medtronic and we suffered an 8-1 drubbing at the hands of the Supreme Court. So I'm probably the wrong person to turn to with predictions.

The California 2nd Court of Appeals issued an interesting opinion addressing the question of just how much of a plaintiff’s personal life is fair game on cross-examination in Winfred D. v. Michelin North America.

(Random comment: Can we all use first names in cases where there are the remotest of privacy issues in question like this court does? If you are killed and your family brings a wrongful death claim or even if you are a doctor accused of medical malpractice, should someone’s Google legacy really be their name in a legal case that might include personal details? Who opposes this?)

Plaintiff in this case suffered a catastrophic brain injury when his tire split while driving a cargo van. Plaintiff’s treating doctors testified that the accident left the Plaintiff, a college graduate, with the functional skills of a 4th grader. One of his doctor’s testified that Plaintiff was “incompetent” to give testimony in that “his memory is flawed,” and he says things that he believes to be true which may not be because of his brain injury.

At the trial of this case in Los Angeles County, the trial judge allowed the Michelin’s lawyer to introduce evidence that while plaintiff was married to his first wife he married another woman without telling her he had not divorced his first wife. Then, he eventually divorced his second wife; and he thereafter had an affair with a third woman, having two children with her. The trial court ruled that this conduct was relevant to plaintiff’s credibility and the cause of the accident.

The jury returned a verdict in favor of Defendant Michelin, voting 9-3 on the breach of warranty claim. On appeal, Plaintiff’s product liability lawyers argued that the evidence admitted regarding Plaintiff’s private life should have been excluded.

The California appeals court said that Plaintiff’s lawyers’ opening statement comment that Plaintiff was “living the American dream” did not open the door, as the trial court suggested, to the fact that he was unethical in his personal or private affairs. The court concluded that because Michelin’s lawyers painted Plaintiff as a “liar, cheater, womanizer, and a man of low morals” based almost exclusively on inadmissible evidence, a new trial was warranted.

Trial courts have a lot of discretion to determine what is relevant but I think pretty clearly that the nuances of his personal relationships – however disturbing – are not fair game. I understand why and agree that the trial court should have a lot of discretion in determining what is relevant because relevancy is so fact specific. The clear downside to the frustration of lawyers is different judge’s have different rulings. I tried a case recently where the judge accused me of seeking to “try the case in a vacuum.” The problem is that one reasonable judge’s “vacuum” is another reasonable judge’s “let’s just stick to relevant facts.”

Click here for the full opinion.

The Missouri Supreme Court found last week that a truck driver who was in a truck accident with another driver can sue for the emotional damages he suffered when he saw the dead victim in the other car. I'm not sure the decision is legally wrong. But it would not fly in the court of Moral Justice court.

The Plaintiff is seeking $1,623.57 in medical bills, and past and future lost wages in excess of $45,000. This is a bogus claim alert right there. You shouldn't lose $45,000 in wages and have such small medical bills in 99.999% of the cases. But here is what is worse: the defendant lost his two year-old daughter due to his own negligence which has to be the most awful feeling in the world. His emotional distress from the truck accident - albeit his fault - is through the roof. Now this truck driver brings a lawsuit. There are some things that we can do in this life that we just should not do.

Oh, wait. It gets worse. In the lawsuit, the Defendant sought and received the following admissions:

(a) The "worst image" for plaintiff was the "the 'baby' lying in the mangled car";

(b) Plaintiff experienced "a great deal of grief for the child who died";

(c) Plaintiff experienced the "paradox of knowing he had no responsibility in her death and wanting her to forgive him at the same time"; and

(d) Plaintiff "visualize[d] the little girl being in heaven" and "said she's the lucky one."

The last one in particular - even if theologically correct - marks the Plaintiff as deranged and I'm surprised the majority let that go without even a comment. The truck driver is telling the father that his loss is worse than his daughter's. The crazy paradox is that anyone so grief stricken over the death of another would be willing to subject the father who caused the death of his own two year old child more grief.

If you hate plaintiffs and personal injury lawyers, I have certainly given you some fodder today. I think you are wrong; I would love to convert you. But it won't happen today.