Maryland Injury Lawyer Blog

The Maryland Court of Special Appeals wrote an opinion of interest to Maryland malpractice lawyers who receive referrals from other Maryland lawyers in medical malpractice cases.

This case involves a Maryland lawyer who referred a cancer misdiagnosis case involving an allegedly misread mammogram to a lawyer that handles medical malpractice cases, agreeing to a fee split. Before referring the case out, the original lawyer filed the malpractice lawsuit.

The Defendant sought summary judgment claiming the statute of limitations had tolled because the alleged failure to diagnose cancer occurred more than three years after limitations had passed. Plaintiff prevailed on summary judgment. The opinion does not say, but I assume it was a discovery rule issue – the patient did not know of the malpractice until after it had occurred.

Then things got interesting. The malpractice case settled the claim for $225,000, far less than the referring lawyer had hoped. Allegedly, the medical malpractice lawyer sold the clients on the settlement by “deliberately misle[ading] the [Plaintiffs] into settling by telling them limitations remained a ‘serious concern’”; “telling them that they had been victims of malpractice by [the referring lawyer]”; and “suggesting to them that they sue [the referring lawyer] for malpractice.”

Continue reading "Lawsuit Against Maryland Malpractice Lawyer by Referring Lawyer" »

Maryland Senate Bill 468 passed today in the Maryland Senate. It increases - from $10,000 to $20,000 - the maximum amount in controversy in a civil action in which a party may not demand a jury trial. In other words, defendants would only be able to "bump up" cases between $20,000 and $30,000 from District Court to Circuit Court.

Currently, any case pled in District Court for more than $10,000 can be bumped up to a jury trial. This practice, which is mostly done by insurance companies in personal injury car accident cases, leads to massive numbers of car accident cases before Maryland juries in cases that should be streamlined into District Court trials.

In fact, auto insurance companies are the problem in getting this bill passed; small businesses, for example, did not oppose this bill. Why are auto insurance companies opposed to this bill? It saves them legal costs to be sure. Is it because insurance companies get better results in front of juries than judges? No. The motive is much more nefarious: they want personal injury lawyers to have to spend time and resources in accident cases if the lawyers and their clients refuse the insurance companies' below market settlement offers in smaller cases.

Moving this bump up number from $10,000 to $20,000 is not a panacea, but it will help circuit courts in Maryland focus their energies on more serious cases.

The Washington Post has an article providing more detail on Study 15, the Seroquel study that saw the same fate as many pharmaceutical company drug trials do that the companies don't like: they stick them in their glove compartment - even deeper than I would stick my parking tickets in college. The chickens came home to roost on my parking tickets about 9 months later. AstraZeneca has had this study stuffed away for 12 years.

For the folks that made a ton of money off Seroquel and have since left AstraZeneca, it all worked out just fine, didn't it? Is it that same warm fuzzy feeling I got when I learned that many of the guys that caused the AIG debacle got huge bonuses? No, the feeling is different for two reasons.

Continue reading "Seroquel Study 15" »

New England Journal of Medicine has an editorial from doctors who support federal legislation that would give injured patients the right to sue medical device manufacturers in state courts.

Sometimes I have a case against multiple defendants where each defendant would be better served by making a stronger case against the other defendant. But, as if by Pavlovian reflex, the defense lawyers will look to find common ground and bend over backward to avoid pointing to each other to the detriment of their clients.

I think the same Pavlovian reflex causes doctors to oppose the Medical Device Safety Act of 2009 that overrules Medtronic v. Riegel. This is rooted in doctors' disdain for medical malpractice lawsuits, which leads to the reflex that anything that helps injury victims bring lawsuits is a bad thing. Because barring lawsuits against medical device manufacturers will lead many injured plaintiffs to blame their doctor, the result will be more medical malpractice lawsuits. Preemption will also undermine, as doctors writing in the New England Journal of Medicine have previously opined, the confidence that doctors and patients have in the safety of drugs and devices. If doctors cannot trust that the device manufacturers have to make products for which they will be held accountable, doctors are going to resist using medical devices that are efficacious. If Medtronic v. Riegel remains the law, it hurts patients and, ironically, medical device manufacturers.

Maryland’s nursing homes had an “off year” according to Jay Handcock’s blog for the Baltimore Sun. The Government Accountability Office reports that citations in Maryland for inflicting residents with “actual harm” or putting them in “immediate jeopardy” were given to 17% of Maryland’s 234 nursing homes last year. This is more than a 100% increase from last year.

There is a bill in the Maryland House of Delegates that would require Maryland nursing homes to give people the choice of installing cameras to monitor their loved ones in nursing homes. What would that cost Maryland nursing homes? Nothing. The patients or their families would pay for the camera themselves. Yet I’m going out on a limb to say the bill does not pass. Why? Maryland nursing homes have good lobbyists.

Links from about the personal injury world:

• Michael Kinsey, taking a break from offering his breathtaking insight that the stimulus package is not cost free (who knew?), has an editorial in the Washington Post discussing the insanity of juries deciding complicated issues regarding whether proper warnings are placed on drugs. Kinsey just can’t figure out why we don’t defer blindly to the scientists at the FDA. Setting aside the fact that the FDA does not have a scintilla of the post-marketing information about a product that the drug manufacturer does, Kinsey should note that this country has been putting complicated issues before a jury since before the American Revolution. This works for the same reason President Obama can make decisions about the military and the economy even though he is not a military tactician or an economist: he can listen to the people who do know and can make the call for himself. Ronald Reagan was certainly not the smartest guy in the room but he is considered one of history’s more successful presidents. How did he do it? Getting the smart guys in a room and deciding which view made the most sense. We have been doing this with jury trials for quite some time now with success, even throwing in an Amendment about it somewhere along the way. There is an elitist view held by many – including people like Kinsey whose views on many things I share – that juries are too stupid or disinterested to make the right call. This elitist view of the world is just plain wrong. It makes me want to go hug Sarah Palin. (Okay, not really.)
• The Maryland Daily Record has a post about difficult job prospects for Maryland law students. The good news, as I note in the comments on my post on the Venable layoffs, is that in the long run of history, the jobs will come back. Unless we follow the Japanese model of an “L” shaped recovery. No forget that. These lost legal jobs and opportunities will come back. Note the Daily Record takes a shot at putting video on their website which is the first time I have seen that. Cool feature for a story for which you have a particular interest.

Continue reading "Personal Injury Links" »

The rest of the Jacksonville Exxon Verdict has been read. Total verdict: approximately $150,000,000.

Huge verdict. But I have no idea what Plaintiffs' lawyers were demanding or Exxon was offering to settle the case. Exxon certainly seemed to be rolling over on negligence so it is no surprise that there was a Plaintiffs' verdict. Exxon did avert a punitive damages award that theoretically could have been in the billions but, as I have said in the past, would have been vulnerable in post trial motions and on appeal. Still, getting a good "pain and suffering" award has to be construed as a win.

Related Posts

A Baltimore County jury did not award punitive damages in the Jacksonville Exxon oil spill in 2006. The jury did award economic damages for property damage and loss of value of property. The diminution of property value awards to these Jacksonville homeowners is ranging from $300,000 to $1.3 million which, to me, sounds pretty good. The jury is also awarding medical monitoring compensation ranging from $5,000 to $95,000 and noneconomic damages up to a $1,000,000 a family. So there is going to be a large verdict but not the billions of dollars sought by Plaintiffs.

I'll provide more information when it becomes available. Apparently, verdicts have been read to the residents of 64 Jacksonville homes with 24 more to go. I'm getting most of what I know from Danny Jacobs from the Maryland Daily Record who is at the trial and is Twittering the reading of the verdict.

Bob Franklin, a well respected Maryland lawyer who defends trucking companies for Franklin & Prokopik, wrote an article on defendant truck accident cases advising defense lawyers on handling plaintiffs’ truck accident lawyers’ vicarious liability arguments entitled. "But I Didn't Do It!" Expanding Theories of Vicarious Liability, 58 Fed'n Def. & Corp. Couns. Q.347 (2008). You can't deny it is a catchy title.

It is a well-written article advising defense lawyers as to how to combat different theories of vicarious liability conjured up by plaintiffs’ truck accident lawyers. But, obviously, it is also a good read for lawyers bringing truck accident cases looking to find coverage in the event of serious injuries.

Franklin offers one piece of advice I found particularly interesting:

With rising insurance costs and tight operating ratios for motor carriers and private fleet operators, many have limited excess insurance coverage or none at all. That trend coupled with ever increasing jury verdicts and settlements means there is frequently not enough insurance available to satisfy a potential or actual judgment.Such a scenario may put the fleet operator’s assets at risk if and when there is an excess judgment. Many fleet operators, particularly smaller ones, would do well to take advantage of recent changes in the law, particularly the Graves Amendment, which effectively precludes liability from being imputed simply by virtue of ownership of a vehicle that was involved in an accident. Having a separate corporate entity own the trucks (usually the operator’s most valuable asset) and lease them to the operators may effectively shield the vehicles from potential excess exposure if the proper procedure is followed.

In other words, set up another company in an effort to avoid liability.

Continue reading "Defendants' Truck Accident Lawyer's Advice: Set Up Another Corporation to Avoid Responsibility" »

Wyeth v .Levine!!!! Plaintiffs' lawyers have seen drug (and medical device) injury victims take punch after punch. But in a huge win for patient safety, the Supreme Court upheld in a 6-3 ruling today that in a Vermont woman's verdict against Wyeth for injuries she suffered after taking one of the drug maker's medicines. Justice John Paul Stevens, writing for the majority, said FDA oversight of drug labeling doesn't prevent the filing of state tort claims.

It is a little bit pathetic that this is a huge win. Gee, the law for the last 90 years is not going to be completely uprooted. Yippy! But the Drug and Device Law Blog predicted victory and those guys have been on the winning side of most everything lately. (A guest Drug and Device Law blogger also broke down the justices individually and predicted victory but I cannot find the post to link to it.) So I'll admit I was more than a little scared. Now, I'm thrilled that even this conservative Supreme Court found decisively in favor of the Plaintiff.

The one downside: a loss may have mobilized Congress to act. This win in Wyeth v. Levine could ironically slow progress on a bill to overturn Medtronic v. Riegel.

You can find an article on the verdict here and comments on Justice Alito's dissent here. You can find the Supreme Court opinion in Wyeth v. Levine here.

The Daily Record has another article on the Exxon case in Jacksonville that I had blogged about yesterday. What was interesting, at least to me, is that one Plaintiffs' lawyer gave the closing and another Plaintiffs' lawyer gave the rebuttal. Even in large trials involving multiple lawyers for each party, I think this is a little surprising. But I don't think it is a bad thing.

Without reading the pleadings, I'm amazed that the punitive damages have gone to the jury. The Plaintiffs' attorneys have three hurdles to climb to get punitive damages: (1) the jury, (2) the judge, who still may rule against them, and (3) Maryland appellate courts, who most certainly will hear this case if Plaintiffs get past the first two steps.

Continue reading "Punitive Damages in Maryland: More on the Exxon Trial" »

The Maryland Daily Record has a blog post that discusses the much talked about Exxon trial in Baltimore County. I have not blogged about it because it is not a personal injury case and I really don’t have any particular insight into the proceedings.

But this Daily Record blog post from Danny Jacobs got my attention. In his closing statement, Steve Snyder frequently called Exxon on its behavior and challenged Exxon’s lawyer to explain Exxon’s response in his closing. Jacobs writes:

Sanders began his closing by laying down some ground rules — he would not answer every inaccuracy or claim unsupported by evidence raised by Snyder. “All that does is aggravate the confusion he has so skillfully created,” he said.

I have no idea what the “Vegas odds” are on this case. I really have no clue as to which side has better facts. But I really think the “Plaintiffs’ lawyer claims are so outrageous that I won’t even respond to them to avoid confusing you even though he called me out to respond to them” strategy comes with a lot of risk. This is particularly true if the Plaintiffs' lawyer - as in this case - has a history of eye popping verdicts.