Maryland Injury Lawyer Blog

October’s Chicago Lawyer contains excerpts from an interview with John L. Kirkton, the editor of the Jury Verdict Reporter for the last 17 years.

One great myth debunked by Mr. Kirkton is the theory that jurors tend to give more around Christmas. Personal injury lawyers are always looking to schedule trials around Christmas and defense lawyers always try to avoid civil jury trials in December because they think the spirit of giving leads to more sympathetic jurors. The theory makes some anecdotal sense. Everyone seems to have just a little extra love in their hearts during the holidays.

Jury Verdict Reporter looked at December trials that were reported over the last four years in Cook County, Illinois and found that the plaintiff won between 47 and 50 percent of the time. For December trials, the plaintiffs’ success rate dropped to 44%.

I doubt Christmas has the scrooge effect with jurors; my guess is that the difference between December and the rest of the year in this survey was just a mild statistical anomaly. The study did not look at the size of the awards in December but my guess is they would get the exact same results: no difference.

The lesson of this study is that juries are trying to make the right call year round and the joy of the Christmas season does not alter their efforts. So lawyers on both sides should just schedule their trials whenever the lawyers and the witnesses are available because there does not appear to be a Christmas verdict bump.

The Wall Street Journal has an article today on the oral arguments before the Supreme Court in Wyeth v. Levine. In an unrelated but very related story, The Washington Post had an article from a Republican suggesting that the RNC drop the focus on McCain and turn to salvaging the Senate races.

These stories are related because if the Democrats get to 60 senators, I think Wyeth v. Levine and Riegel v. Medtronic will become a moot point. There are interesting landmarks on the path to 60. The first is the outcome of Ted Stevens’ trial. If Stevens is acquitted, Republicans should hold that seat. Who knew Alaska could have the impact it is having in this election? The second is whether Al Franken can unseat Norm Coleman in Minnesota. I hope Franken wins and, like most of us, I enjoyed Stuart Smalley on "Saturday Night Live." But after reading one of his books, I'm not sure he is a step towards a post-partisan movement. Franken sings the "all conservatives are evil and all liberals are righteous" spiel that the whole country is tired of hearing.

In the final debate, Senator Barack Obama was asked to name a situation where he stood up to leaders of his own party. The answer Senator Obama most forcefully pointed to was his vote in 2005 for the Class Action Fairness Act (CAFA) which he described as standing up to trial lawyers. The CAFA essentially shut down state courts as a venue to hear many class action lawsuits, which has had a great deal of impact on some types of class actions.

Senator Obama is correct that this was the path less traveled by other progressive candidates. Hillary Clinton and Joe Biden both voted against the Class Action Fairness Act as did other notable Democrats such as Dick Durbin, Ted Kennedy, Pat Leahy, Barbara Boxer, and Maryland’s Attorney General at the time, Joe Curran.

Does this mean Senator Obama is in favor of tort reform? I really do not think so. He has consistently been against any kind of tort reform for medical malpractice damage caps in the Illinois legislature and in the U.S. Senate.

Moreover, it is an open question as to whether the CAFA is a bad law for lawyers who did not drink the “anything that limits plaintiffs’ rights in any way is a bad thing” Kool-Aid. Lawyers typically take a knee jerk reaction by opposing any changes in the system. (I'm probably guilty of this.) But I know that I take exception to some of these consumer lawsuits where the lawyers make a fortune and the plaintiffs only receive a free oil change and 10% off their next purchase of the Defendant’s product. While I appreciate the important deterrence effect that trial lawyers can have on bad corporate conduct, I think there is a problem when the actual victims do not get any meaningful compensation. I’m not proposing a better solution; I just have some concerns about those types of cases which I think are the kind most impacted by the CAFA.

I also disagree with the notion many have offered against the CAFA that state judges, as opposed to federal judges, are better equipped to handle consumer protection laws because they sometimes involve state, rather than federal law. First, I don’t think that there are enough consumer law cases such that state court judges would be extremely familiar with them. Moreover, I’ve spent enough time in front of federal court judges to be pretty confident that these are largely extremely smart people who can figure these kinds of things out.

Ironically, Republicans, the party of states’ rights, voted for the bill en mass. I think there are about 11 people in the country who really care less about the balance between the states and the federal government. It is a hard thing to get passionate about in 2008. A person who sings the States’ rights mantra (or federalism for that matter) quickly abandons the song when it conflicts with an issue that really matters to them.

Going back to the topic at hand, I do not blame him for taking a shot at trial lawyers: we are easy targets and most trial lawyers are going to vote for Senator Obama anyway on a host of other issues that have nothing to do with tort reform. But I think Senator Obama is going to help decrease the number of medical malpractice lawsuits the way it should be done: by fighting for changes that will decrease the number of people who are seriously injured or die each year as a result of medical malpractice - almost 100,000 malpractice related deaths a year in the country, according to the government. I also think Senator Obama will support legislation that will overturn the dreadful decision the Supreme Court made in Medtronic v. Riegel and the dreadful decision they may well make in Wyeth v. Levine.

• Clinton and Obama on Tort Reform
• Malpractice Tort Reform

David Davis, a Massachusetts based jury consultant, offers five thoughts in The Jury Expert on the psychology of how jurors process requests for damage awards that I think is of interest to accident and malpractice lawyers.

I found of particular interest his theory that consumers – and by implication jurors – have a propensity to judge precise amounts of money to be lower in magnitude than similar round prices. The reason is that we tend to use precise numbers for small amounts and round numbers for larger amounts. The example Dr. Davis provides is that a precise number like $325,425 is seen as lower that $325,000 even though obviously the former number is a higher amount.

The implication for personal injury lawyers is obvious: make a request for damages that is a specific amount and back up that amount with some logical foundation. David Ball, another jury consultant that I have relied upon a great deal in my damage theories, disagrees with the utility of per diem arguments. But our lawyers often use per diem arguments to come to a specific number and have had a lot of success. Of course, this does not prove the efficacy of per diem arguments but it is hard for trial lawyers to ignore their own experiences of what is successful for them. If I began to notice a correlation between wearing a red tie and successful jury verdicts, I’d faithfully keep wearing red ties.

Back to the original topic: I think the precise number is also applicable in the settlement of personal injury cases. I think an initial demand of $485,000 is higher than an initial demand of $500,000 because you are cueing a great deal more flexibility in round numbers. Of course, at some level, if your initial demand is $482,542.56 and you do not have a logical reason why you arrived at such an exact figure and just made up that number, you are cueing that you are an idiot.

• Picking a Jury in Maryland
• Per Diem Argument
• Voir Dire in Maryland
• More on Voir Dire in Maryland
• Using Focus Groups
• David Ball's New Book on Damages

John Bratt has a Baltimore Injury Lawyer Blog post about a defense lawyer asking a question in an auto accident case for the sole purpose of embarrassing a witness. The question had no relevance to the accident or the Plaintiff's injuries from the accident.

It is hard for a lawyer to ask questions that intrude into a person’s painful or embarrassing moments even when they are relevant. I asked questions as a defense lawyer in wrongful death cases that I still feel ashamed of to this day. I still remember exactly how it feels to ask an AIDS patient or his family questions about the patient's sexual practices. Awful. But I was obligated to do it because it was relevant to how that person contracted AIDS.

In John's case, I can't imagine what goes on inside the mind of a lawyer who clearly does not have to ask a question like this but does so, anyway, for sport to embarrass or humiliate another human being.

I’ve always said you can tell a lot about a person by the way they treat the waiter. You can also tell a lot about the type of person a lawyer is by the questions they ask the victim in deposition.

The Los Angeles Times reports that dog and cat food companies will pay $32 million to settle lawsuits filed by pet owners whose dogs and cats died last year after eating contaminated pet food.

You would be hard pressed to find someone who loves animals more than I do. Very hard pressed. My views on this stuff are outside of mainstream opinions on the subject. So I am thrilled these pet food companies are being held accountable. Still, does anyone other than me think that the only winners in this lawsuit are the plaintiffs' lawyers who filed these lawsuits and the defense lawyers who billed the file?

I do not necessarily think anything is wrong with this. I'm just like a poet pointing this out, using a blog instead of iambic pentameter. (No? Not even close. Okay.)

I just finished George Lakoff’s book, Don't Think of an Elephant! Know Your Values and Frame the Debate. Channeling my inner Joe Biden, I loved the book; I hated the book.

I hated the book because as much as Lakoff obviously tried to fight it, he does too much of the “no reasonable person could think this way unless they were being manipulated” spiel. It is just too condescending and partisan for my tastes, which I think takes away from some of the luster of the book for me.

A topic near and dear to my heart, tort reform, is the classic example. Lakoff writes (on page 30 for those of you following along at home) that conservatives are not focused on tort reform because of their disdain for the volume of lawsuits, but because they want to take money out the coffers of progressives by taking away the attorneys’ fees available to trial lawyers. Obviously, medical malpractice and accident lawyers generally contribute heavily to progressive candidates.

The thought had never occurred to me that tort reform is a back door to bleed progressive causes and I’m sure there is some truth to it. But the notion that this is the primary source of the motivation for tort reform among conservative thinkers ignores the magnitude of the animosity in many circles of our society – including people smarter than me – with frivolous lawsuits and, to a lesser extent, large jury verdicts.

This problem is compounded by the repeating of verdicts that are completely taken out of context (the McDonald’s verdict), fabricated (the Stella Awards), or simply rare. Compounding this problem further is the fact that celebrities tend to use lawsuits as the resolution mechanism of first choice, leading Americans to assume that these de facto aliens are a microcosm of our country.

Lakoff suggests that trial lawyers need to frame the issues differently. Consumer protection and personal injury trial lawyers should be framed as public protection lawyers. Under this frame, when tort law tries to put a cap on non-economic damages, they are taking away the constitutional right of juries to decide justice. Large settlements and verdicts result in greater public safety because the impact of accident, malpractice and, most importantly in this context, products liability cases go beyond the case at hand and are a form of public protection law.

The problem goes beyond framing, though, because the real issue in the tort reform battle is that there are not enough people to make the frames. Trial lawyers are the wrong messengers. Trial lawyer lobbyists? Worse. So who is left?

The fuel that fills the tort reform train is that everyone on the ride has never suffered a catastrophic injury as the result of the negligence or willful disregard for their safety (typically consumer or med mal context) of someone else. Those folks who have suffered a catastrophic injury often do come forward and make compelling witnesses for the unfairness of many tort reforms, most notably caps on noneconomic damages. But most people who have suffered a grave injury have enough to deal with, without having to the carry the anti-tort reform ball. So that leaves a few compelling proponents against a lot of people who think that their insurance costs and what they pay for drugs and medical devices are due to greedy personal injury lawyers and their clients. And this is a hard obstacle to overcome.

There has been evidence since 2002 that drugs in Seroquel’s class caused a 3.34 times greater risk of diabetes than other antipsychotic drugs (which is what Seroquel is supposed to be prescribed for in the first place). In September 2003, the FDA began mandating a warning indicating that Seroquel patients are at great risk for type 2 diabetes.

The Seroquel diabetes class action lawsuit alleges that Seroquel’s manufacturer knew that Seroquel caused a high occurrence of diabetes, but failed to adequately warn doctors or patients of the risk. As is often the case, the other countries' version of the FDA required a more explict warning about the risk of type 2 diabetes with Seroquel. The Japanese warning specifically informing doctors of the need to monitor Seroquel patients. The Japanese label also indicates that Seroquel is contraindicated for use in patients with diabetes or a history of diabetes. In other words, Seroquel's manufacturer felt comfortable providing doctors and Seroquel patients in the United States less information than Japanese Seroquel patients were afforded. Why? Two words: market share. The more bad information about Seroquel that was made available, the less prescriptions - particularly the off-market prescriptions for Seroquel which is where the real money is in Seroquel sales.

Continue reading "Seroquel Diabetes Lawyer: Attorneys for Seroquel Induced Type 2 Diabetes " »

The Baltimore Sun reports today that Maryland Insurance Commissioner Ralph S. Tyler ordered nine premium finance companies - companies that finance the Maryland Automobile Insurance Fund premiums, which consumers are still required to pay in full - to stop charging ridiculously high finance charges. Two of these finance companies also must refund money to consumers because, incredibly, they charged interest on policies that were never issued. The Baltimore Sun article suggests this will save MAIF’s customers about $100 a year.

These finance companies exist due to a quirk in the law that requires MAIF to make customers pay in full for their premiums. Since most consumers cannot afford this, these drivers turn to predatory lending companies. Everyone from MAIF itself to Ralph Tyler has argued that MAIF should allow its insured drivers to pay premiums over time, like virtually all of the rest of us.

Unfortunately, MAIF drivers, who typically have bad driving records and/or bad credit histories, have no lobbyists in Annapolis. MAIF’s competitors (particularly, as this blog discusses, State Auto) and these finance companies do have lobbyists, which is why this nonsense has been allowed to continue. Hopefully, 2009 is the year that the Maryland legislature finally gets its act together and gets rid of this nonsense.

Related Posts:

• Private Insurers Claim They Can't Compete with MAIF 9/2/08

• Whose Your Daddy? Do MAIF Lawyers Work for Client or for MAIF 5/8/07

• Fraud at MAIF: 1/16/06

Our lawyers are now investigating potential Spiriva HandiHaler lawsuits after the Journal of the American Medical Association, underscoring long held concerns, reported that Spiriva HandiHaler users may face increased risk of heart attacks or strokes and other cardiac problems.

The Spiriva HandiHaler (generic: tiotropium bromide inhalation powder) is an inhaler drug used by millions of people with emphysema and bronchitis. The Spiriva HandiHaler was approved in 2004. Along with its cousin Atrovent, which has been around for over 10 years, the Spiriva inhaler is used once or more daily to relax muscles and open airways in a patient’s lungs for patients with emphysema and chronic bronchitis (which are conditions under the umbrella of chronic obstructive pulmonary disease - COPD).

All indications are that both of these products – Spiriva and Atrovent - are efficacious for the purpose of opening the patient’s lungs and facilitating breathing. This new study, however, raised grave concerns that these inhalers could be associated with potentially fatal cardiac conditions. The study looked at other drug trials and found that people taking Spiriva or Atrovent had a 58% higher risk of developing cardiac problems, with far reaching complications including strokes, heart attacks and death.

Stating the patently obvious, a 58% higher level of risk is unlikely to be the product of mere chance. This is particularly true with this JAMA study on Spiriva and Atrovent because this study looked at a number of studies, so the number of patients included in the analysis was large. Approximately 1.8% of the people on either Spiriva or Atrovent in the JAMA study developed fatal or nonfatal heart problems over a period of several weeks to several years. Patients on different drugs or a placebo have only a 1.2% risk.

Yet Boehringer Ingelheim, who manufactures the Spiriva and Atrovent inhalers, and Pfizer, who markets these inhalers, have done their own analysis just days after the JAMA study was released (coincidentally?) analyzing 30 clinical trials that suggest that the Spiriva inhaler does not increase cardiac risks.

To make matters more confusing, the FDA said back in a March MedWatch alert that using Boehringer Ingelheims’s own data from 29 studies of about 13,500 patients found that Spiriva is linked to an excess risk for strokes. Specifically, this data found that there was an excess risk of stroke for 8 patients of every 1,000 taking Spiriva for 1 year, compared to 6 patients of every 1,000 taking a placebo. This data is not as overwhelming as the 58% figure suggested by the JAMA study but it still is cause for concern.

There is no question that many patients with COPD need pharmacological assistance with their disease. Of the 24 million Americans with COPD, less than half are using medication to assist with their condition, which is one reason why we have 100,000 deaths a year in this country from COPD. And there appears to be no question that Spiriva is effective in fighting COPD. But our lawyers’ question is whether Spiriva's warning adequately informed patients of the increased risk of cardiac problems. Did they even modify their label after the FDA’s MedAlert earlier this year? Our lawyers also want to investigate whether Spiriva was properly tested for cardiac concerns, because there are other inhalers available that have not been linked to heart attacks and strokes.

Our lawyers believe there is enough information out there to begin evaluating Spiriva cases with an eye towards a potential class action lawsuit. If you would like to speak to a Spiriva lawyer, call 800-553-8082 or click here for a free Spiriva lawsuit consultation.

I have received a number of calls from clients with personal injury claims against AIG fearing their claims are unprotected.

Yesterday, we got a call in one of our AIG cases. Someone from Resolute Systems called and said that AIG had given them the assignment of settling large cases. They are setting up settlement conference days in Philadelphia for some pending AIG cases. We were given November 5-6 as dates for these mediations.

I suspect AIG is looking to capitalize on the panic and induce below market settlements. I have no proof of this.

The reality is that the financial problems at AIG are not with the 70 AIG insurance companies. In fact, these are independent marketable assets that would likely continue to be maintained should AIG declare bankruptcy. Practically, I think a bailout bill will get passed to solve the AIG problem. But either way, the chance of claims being impacted by all of this is a relatively remote possibility.

I think people with claims are understandably concerned. Certainly, no one in their right mind would agree to a structured settlement with AIG. But I think the risk of claims not being paid is relatively low, both because of the safeguards that are in place in every state to secure claims, and because I think the AIG insurance companies will continue in some form no matter what the outcome of the bailout.

Maryland Insurance Commissioner Ralph Tyler was kind enough to be a guest speaker at my insurance law class at the University of Baltimore last year and said his most important job is making sure Maryland insurance companies are solvent. Last year, the most important part of Ralph Tyler’s job was not on anyone’s radar screen. Now, it is front and center.

These are scary economic times for a lot of people. But insurance companies have been doing quite well. I understand the concerns of people who have pending AIG claims, but I think the doom and gloom talk about AIG claims will not be prophetic.