Maryland Injury Lawyer Blog

Not many Maryland Injury Lawyer Blog posts this week. A few years ago, I started the Maryland Lawyer Blog because I found the injury blog just had too many posts that were not focused on malpractice, car accidents, and product liability cases. The Maryland Injury Lawyer Blog is meant to be a niche blog on just personal injury cases.

Moral of the story: I did post a good bit on the Maryland Lawyer Blog this week if you are interested in a few timely blog posts that are not related to personal injury issues. Otherwise, I have a few ideas in my head and I'll be up and running again on Monday.

We recently added a sixth lawyer, John Cord, to our team at Miller & Zois. You can read his biography here.

John has started his own blog, the Drug Recall Lawyer Blog. This blog is directed a product liability lawyers handling drug and medical device case in Maryland and around the country. If you find it useful, add it to your list of favorites (as well as the Maryland Injury Lawyer Blog, of course).

The Maryland Lawyer Blog yesterday wrote about the hubbub in the legal blogosphere when an associate at Quinn Emanuel - a large law firm that represents the Washington Redskins in their dispute with American Indian groups - engaged in an email exchange with a partner after another partner wrote one of the big firm standard "We Are the Masters of the Universe" email after a favorable ruling.

Commenters to the blog post have been dying to name the name of the associate and his name kept appearing in the comments section. An Above the Law editor wrote a piece explaining their policy that associates are entitled to privacy. I agree. But apparently Above the Law believes that partners are public figures and should be named. I disagree with that.

The rule at the Maryland Injury Lawyer Blog (and related blogs) is pretty simple: don't name names unless (1) the person has specifically put themselves out there so deliberately as to warrant mentioning or, (2) they are being recognized in a positive or neutral way related to their profession in a way that would not be embarassing. This includes individual plaintiffs and defendants who are not putting themselves in the public eye - in my opinion - by either enforcing or defending their rights.

Esquire (via Overlawyered) has videos of the five worst lawyer ads. It is worth taking the time to watch these. If you do nothing else today, click on the last one, the California Switchblade. Transcendent unintentional comedy. If you are having fun, go to YouTube. There are, by my math, about a zillion more.

Last month, I expressed shock over a van that advertised for a personal injury lawyer that could generously be described as tacky. I've grown up a great deal in the last month. When I read the story of the lawyer living in that personal injury lawyer advertising van and parking it in the hospital parking lot, I'm not going to blink.

I read a series of articles in Trial Magazine on cross examining experts at trial. One article revolved around a joke the lawyer made and how everyone laughed, except for the expert. The moral of the article is that the expert’s failure to laugh at the joke “showed the witness’s pomposity” and was the “key to the jury acceptance of [plaintiff’s] experts and their credibility."

I’m sure the joke played as the author suggests. But a jury trial is typically not conducive to humor. I’ve seen many efforts at humor – including my own efforts that I thought at the time were good – fail miserably. This is particularly true in a shorter trial where the jury has not had an extended time to warm up to you and relax. Chris Rock would have a hard time being funny in an opening statement.

My advice: if you are not incredibly sure it is going to be funny, leave that club in your bag. Only an extremely funny person can get away with prepared humor during a jury trial. Not sure if you are extremely funny? You are not.

Metro Verdicts Monthly graph this month is the median verdict and settlement value of “vision loss” personal injury cases. Omitting defense verdicts, the average settlement/verdict in Washington D.C. is $500,000. What do you think the average is in Maryland? Somehow, I doubt you would guess anything in the neighborhood or even the zip code of $192,700. The difference in these two numbers is inexplicable. The average settlement/verdict in vision loss cases in Virginia is $450,000.

I suspect something is wrong with this analysis because I really don’t think Virginia juries value vision loss twice as much as Maryland juries. I’d pay extra if they would include in an appendix the data they used for these graphs.

• A big firm lawyer in New York kicks her young kids out of the car. I can't decide whether the presentation of this story is wildly inappropriate. Probably.
• Evan Schaeffer talks about prepping personal injury clients for deposition
• Is it okay if Supreme Court Justices nominees are fat? Answer? Sure, but get to the gym once in a while.
• Frank Pasternak pushes for higher minimum car accident liability insurance limits in Wisconsin. Maryland’s minimum is lower than Wisconsin.
• Dave Swanner in South Carolina reports on David Ball’s new book.

Continue reading "(Mostly) Personal Injury Related Links" »

The lure of a settlement loan is clear: up front money. The interest rate for settlement loans? Imagine the interest rate that Gazzo (Rocky Balboa’s loan shark boss in Rocky I) must have charged. Then double it.

How do they get around usury laws that say you can’t take advantage of other people? How are these settlement loans not a dictionary definition of predatory lending? The backdoor is that the outcome of a car accident claim or lawsuit is theoretically uncertain. Yet our firm has a large number of auto accident claims where I could show up for trial drunker than Otis from Mayberry and still get money damages from the jury. Every single time. So getting enough to pay back the principal of the loan is fairly certain. Yet the theoretical uncertainty allows most settlement loan providers to charge whatever they want.

Vulnerable accident victims tend to ignore how much money they will owe tomorrow because they are focused on the lure of cash today. Our lawyers discourage our clients from taking these loans.

Interestingly, National Lawsuit Funding provides on its website a copy of an Ohio appeals decision that I think takes a logical view of these loans.

Before I get angry emails, note that I don’t think every lawsuit loan company charges usury rates and never performs a necessary function for some accident victims. But I am saying most do. Here is a sample settlement loan prepayment plan that I just received yesterday for a case (which precipitated this blog post/rant). It underscores the insanity of the terms of some personal injury lawsuit loan agreements.

Here is what cannot be disputed: I would own a baseball team if I started one of these companies. Recession proof business with virtually guaranteed returns.

The Maryland Court of Special Appeals in a 2-1 decision today affirmed a Frederick County trial court’s grant of summary judgment to Erie Insurance in an underinsured motorist lawsuit.

The nutshell: State Farm paid its $100,000 liability policy in a serious injury car accident case. Plaintiff sought payment under his $250,000 uninsured/underinsured motorist policy with Erie Insurance. Erie claimed that it was entitled to a workers’ compensation setoff of $246,305.66, representing the workers compensation benefits the car accident victim received because he was working at the time of the accident. The Plaintiff claimed the setoff should be $27,396.28 because this was the amount of the workers’ compensation lien.

Continue reading "Workmen's Compensation Uninsured Motorist Setoff: New Opinion for the Maryland Court of Special Appeals" »

The 1st Circuit Court of Appeals wrote a helpful opinion for product liability lawyers who get the name of the defendant wrong when filing just before statute of limitations expires. The court elevated substance over form in finding the the claim "relates back" under federal law.

The case involves an incredibly tragic auto accident. A 1987 Mercedes-Benz 300SDL parked on an inclined street in Puerto Rico began rolling downhill and crushed and killed a six-month-old child. The plaintiffs' product liability lawsuit alleged that design of the Mercedes-Benz caused the child's death, alleging a "gallimaufry" of product liability theories against Daimler-Chrysler Corporation.

Continue reading ""Relates Back" Lawsuit Reinstated: New 1st Circuit Opinion" »

We can can hold hands and agree with the Drug and Device Law Blog on few things related to drug and medical device litigation but this is one: we hate Medicare liens and the government is making life even more difficult for parties on both sides of the v. As usual, they have a very complete post laying out this issue, focused on the defense lawyers' perspective but much of it applies to plaintiffs' lawyers as well.

University of Baltimore law professor Richard W. Bourne wrote an article published this year in the Arkansas Law Review articulating the theory that there should be an independent tort claim when a doctor destroys evidence or when a doctor fails to disclose to the patient that there has been a breach of the appropriate standard of care that causes injury. Professor Bourne would limit this tort to cases where (1) the wrong is serious, and (2) the failure to reveal is intentional.

Professor Bourne also quotes Harvard evidence professor Charles R. Nesson on the inherent problem in making the punishment for spoliation of evidence "assuming that the spoliators ... destroy the evidence because it [is] damaging to their case, none of these sanctions puts the spoliator in a worse position than he would have been in had he produced the evidence."

In other words, if the document or evidence indicates the worst possible scenario, the defendant has nothing to lose, except possibly inflaming the jury by destroying the evidence. Of course, in Maryland medical malpractice cases, there are ostensibly ramifications with the Maryland Board of Physicians for doctors destroying medical records. But as this blog recently underscored, the Maryland Board of Physicians does not appear to be an effective enforcer of medical ethics.

I think many doctors who support medical malpractice tort reform will reflexively roll their eyes at the suggestion from a lawyer that we need another medical malpractice tort. But as a lawyer I would certainly support this rule in legal malpractice cases in Maryland. Similarly, I think a lot of Maryland doctors who want to rid the medical profession of dishonest doctors would also support a tort to punish doctors who deliberately destroy evidence and/or do not reveal to the patient that serious medical malpractice has been committed.

So what will happen with this bright idea? Absolutely nothing. The Maryland Court of Appeals is not in the mood to create a new tort in medical malpractice cases and it will be impossible to gin up the inertia in the Maryland General Assembly for anything that will impose new liability on Maryland doctors.

The FDA has warned users of weight loss drug Hydroxycut to stop taking the popular weight-loss product because of risk of severe liver damage. The Hydroxycut recall focuses us all for the zillionth time on FDA’s inability to sufficiently police so much as a high school prom. But nothing is ever done about it.

The FDA is officially in the "Britney Spears Zone" for just about everyone. If they accidentally approved heroin capsules tomorrow, the New York Times and the Washington Post's editorial sections would light up for a week. Then it would be back to business as usual and nothing would change.

Our lawyers are investigating Hydroxycut recall injury claims subject to this recall for patients with liver failure or jaundice. If you want to speak with a Hydroxycut lawyer about potential lawsuits involving Hydroxycut, call 800-553-8082 or click here for a free Hydrroxycut lawsuit case evaluation.

The New York Appellate Division affirmed, in a 4-1 opinion, a trial court’s ruling granting summary judgment in favor of a golfer who struck his friend in the eye with a golf ball. Both the plaintiff and defendant were medical doctors and friends… before the accident.

In his lawsuit and at deposition, the Plaintiff alleged that he had located his ball and turned around to see where the others in the threesome had hit their balls when he was struck by the defendant's misdirected ball. The plaintiff estimated that he was approximately 15 to 20 feet in front of the defendant when the errant ball was hit. He admitted that it was customary for members of the same golfing party to stand behind the person hitting the ball. The defendant admitted that he did not know where the other golfers were when he hit the ball. The defendant claimed he shouted a warning, but no one heard the warning. (For purpose of summary judgment assuming the facts most favorable to the Defendant, the assumption is there was no "fore" warning.)

Continue reading "Bad Golf Shot Lawsuit Ends with Summary Judgment" »

The FDA announced that it will now require Botox and its progeny to provide black-box warning. The FDA said the labeling is necessary to warn doctors and patients that Botox has potentially fatal complications, including problems with swallowing or breathing. The FDA has identified at least 225 reports of medical problems among patients treated with Botox and similar drugs.

If there was a stock available in 2004 called "The FDA Will Eventually Require Black Box Warnings for Boxtox But It Will Take Awhile", I would have bought a ton of it. Unbelievably predictable.