Maryland Injury Lawyer Blog

Bayer, the manufacturer of Yasmin and Yaz birth control, is slowly moving in the right direction by strengthening its warning about blood clots. There is no plan to update the warning with respect to gallbladder injuries. Plaintiffs' lawyers in the Yaz/Yasmin lawsuits contend that the progestin contained in the pills, drospirenone, is causing serious health problems in otherwise healthy women, including deep vein thrombosis (blood clots in the deep veins), strokes, heart attacks and gallbladder disease.

The FDA informed Bayer in a letter earlier this month that it is responsible for updating its warning on a key issue in the Yaz lawsuits: whether Yaz causes blood clots. Still, Bayer is not putting a warning on Yaz/Yasmin that is going to clear its duty-to-warn obligation in future blood clots cases (and, again, this warning has no impact on the Yaz gallbladder cases). The new Yaz/Yasmin labels make clear Bayer is not backing all the way down: "The serious side effects of the pill occur very infrequently, especially if you are in good health and are young."

Bayer is in an interesting spot with Yaz/Yasmin. These birth control drugs combined were Bayer's most profitable drug last year. Yaz and Yasmin are also Bayer's biggest seller and the leading birth control pill in North America. I strongly suspect Bayer realizes a strong warning means less prescribing doctors which means less profits. But if Bayer ignores the growing evidence that Yaz and Yasmin are more dangerous than other comparable birth control pills, they are risking lawsuit payouts that exceed the generous profits they now enjoy. Nothing short of a Yaz recall is going to stop the flow of future lawsuits.

I stumbled on an interesting Chicago Law Review article today by Eric Posner (Judge Richard Posner's son) and Cass Sunstein (now with the Obama administration). I like Sunstein's views on a number of issues, including animal rights.

The subject article is how the legal system assigns money damages to the loss of human life in wrongful death cases with an eye towards creating greater uniformity. The authors approach this question like it was a mathematical equation to be solved. For grief, the authors conclude that $500,000 is a good starting place, suggesting this formula as the paradigm to determine compensation in wrongful death cases:

To derive a willingness to pay (WTP) to avoid grief from a spouse's death, one would need to (1) determine the average length of time that the grief persists (for example, until remarriage); (2) find an equivalent happiness difference in an area of life that has been reliably monetized (for example, willingness to pay to avoid disease or depression); (3) convert this difference into annual units; and (4) multiply (1) by (3).

I understand the goal of uniformity and I even understand the formula. The problem is homogenizing the equation for everyone. Values vary because juries vary but also because facts vary wildly from case to case. Moreover, the formula is artificially low because it uses how much you will spend to avoid a loss to determine how you value the loss. For example, if you are willing to pay $5 to avoid a 1/100,000 risk of death to your spouse, than the loss of your spouse is worth $500,000.

Continue reading "Wrongful Death Compensation: How Much?" »

Paul Luvera discusses a tough issue for Plaintiff's lawyers: do you clue the jury in during your opening statement as to how much you are going to ask for in closing? I struggle with this and often opt for a middle ground. I lay out the foundation of what I'm going to ask for: medical bills, wages, and the formula I think is appropriate (x per day for the rest of her life). This way, I'm getting them used to the idea without having to spit out a number without any evidence.

As Paul points out, a one size fits all rule is difficult because each case depends on different facts. One critical question has to be considered: is the cap an issue? If what you have is clearly a cap case and minimal or no economic damages, you can dial back a bit on the damages argument which might help you avoid the risk of losing credibility. Because every time you ask for money - which is what a plaintiffs' lawyer does by definition - you do lose some measure of credibility with a jury.

One of the issues in this post - raising the damage amount in voir dire - is not of much interest to Maryland personal injury lawyers because our voir dire is so ridiculously limited.

Paul also points out that David Ball feels pretty strongly about putting up a number in opening. Which is reason enough to consider it in every case.

Religion and Scripture is the subject of one of the most compelling chapters in Reptile, a book offering a guide for plaintiffs’ lawyers on trying personal injury cases. The lessons offered in the book have made a meteoric rise from novel theories to conventional wisdom by most experienced personal injury lawyers. You don’t have to blindly accept every premise in the book but if you are handling product liability, accident, malpractice or any other kind of tort cases – even if you are a defense lawyer – you need to buy this book.

The premise is simple: most of us believe in God and view the world from the lens of faith. This is obviously true for people who wear their religion on their sleeve. (Not saying that is a bad thing but you know what I mean.) But the rules of Scripture, according to the Reptile authors, command authority as the “ultimate rules” for not only the faithful but the agnostic and even atheists. The Bible is loaded with stories and parables that apply to every situation where justice is being sought. Here are a few of the plaintiffs’ theme direct quote suggestions:

• "Do not follow the crowd in doing wrong. When you give testimony in a lawsuit, do not pervert justice by siding with the crowd." (Exodus 23:2)
• "Do not deny justice to your poor people in their lawsuits." (Exodus 23:6)
• "Truthful lips endure forever but a lying tongue lasts only a moment." (Proverbs 12:19)

The first question is whether or not this is admissible and whether you are going to offend the sensibilities of the court. I don't think this is an impediment. Argument is argument and Scripture is history like any other history and can be used to make an argument. I see no difference in quoting the Bible than I do in making an American Revolution or Civil War reference, in closing.

Continue reading "The Bible at Trial in Personal Injury Cases" »

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In its final day in session, the Maryland General Assembly passed a bill that will place a constitutional amendment on the ballot in November to raise the jury prayer amount in civil cases in Maryland. Currently, any case pled in District Court in Maryland for more than $10,000 can be "bumped up" to a jury trial. This bill would increase that amount to $15,000.

Insurance companies commonly bump up small district court cases that are filed for more than $10,000. This practice leads to massive numbers of car accident cases before Maryland juries making it hard to argue that we are properly utilizing precious juror time.

Car insurance companies have, of course, historically opposed this bill. But this was not your classic "business v. trial lawyers" battle: a lot of support for the bill came from small businesses who do not like having to spend their resources on lawyers battling in Circuit Court that which could be fought much cheaper (for all parties to the litigation) in District Court.

Why, then, are car insurance companies opposed to this bill? You would think that they too want to save legal costs. But their motive is simple: they want to be able to threaten Maryland accident lawyers with the time and costs of going to trial if they will not press their clients to accept below market settlement offers.

What would have been great is if this bill had a cost of living escalator because in 10 years, $15,000 is going to be worth $7,500 and we will be back to the drawing board.

The bill is not law. The voters will have to approve this constitutional amendment in the fall. But I think it will pass. When I vote these state constitutional issues, I almost always vote "yes". Why? Because given the absence of public debate that would make me more knowledgeable on the topic, I defer to the Maryland legislature figuring they put it on the ballot for a reason. If they put some crazy zoning issue on the ballot, I don't know what it is about but assume it is for a good reason (again, given the absence of informed debate). I suspect most Maryland voters are like me and will do pretty much the same.

Yesterday, the Maryland Daily Record published the first of a three part series I wrote with retired Judge Clifton J. Gordy (now a mediator and arbitrator) on mediation in serious personal injury and wrongful death claims. The article is for both plaintiff and defense lawyers looking to make mediations as productive as possible. Take a look at yesterday's article and look in coming editions for the final two parts.

The Maryland Senate passed HB 825 which increases the minimum minimum limits of car insurance liability coverage in Maryland from $20,000.00/$40,000.00 to $30,000.00/$60,000.00. The Maryland House of Delegates has already approved the bill and the Governor is expected to sign the bill in the near future. The bill will go into effect next year.

Again, this bill is long overdue and is not going to provide a real solution to serious injury and wrongful death cases where there is inadequate insurance. It is a moderate but meaningful step in the right direction.

• Commentary on Jay Handcock's Blog Post on Bill
• John Bratt Provides Details and Explains Why Bill is Overdue

The Baltimore Sun's Jay Hancock continues, improperly, to be given a license by the Baltimore Sun to blog about tort claims while having a limited understanding of Maryland tort claims. I think, and maybe it is just me, this is a bad idea.

He notes in his blog some great news: traffic deaths for Maryland in 2009 were 550, which is 550 too many but down from 614 in 2007 and 707 in 1990, even though Maryland has many more drivers on the road today than it did in 1990. Hancock goes on to assume that we "can be reasonably sure that traffic deaths are a good proxy for accidents, injuries and lawsuits generally," concluding that Maryland accident lawyers "want a raise" by increasing minimal auto insurance policies drivers must maintain in Maryland.

First of all, I don't know why we can be reasonably sure that deaths are a good proxy for accidents. Gee, you are a newspaper reporter, can you look up accident statistics in Maryland to find out the trend in the number of personal injury claims? Moreover, the belief that Maryland accident lawyers will see an appreciable difference in income by raising the insurance limits from $20,000 to $30,000 isn't valid because, as one of the comments to the post points out, there are not that many cases that are (1) valued between $20,000 and $30,000 and (2) where there is no uninsured motorist coverage. Sure, our law firm and every other personal injury law firm is going to have cases like this but, relatively speaking, it is a drop in the bucket. Trust me, Maryland trial lawyers looking to push legislation that puts more money in their pockets, don't rank this bill among their top 10. But it does help some victims that are likely going to get an unfair result anyway.

Hancock also claims - as he has before - that lawyers typically take 30% of the recovery. Actually, that is not what is typical. Hancock goes on to say that auto accident cases often settle for the policy limits. I would love to know what Mr. Hancock thinks the average auto accident case settles for in Maryland. I think he would be surprised.

I read Jay Hancock pretty regularly. He's a smart guy and a good writer. And his blog post is actually not an assault on Maryland accident lawyers: he is stating a rather obvious economic argument. But if you read his articles about medical malpractice lawsuits or car accident claims, you just get the impression that he really has no idea what he is talking about. This is the Baltimore Sun, not the Mayberry Times. Can't The Sun find someone to write on these legal issues that has something north of surface knowledge?

• Bill passes Maryland House of Delegates
• Details on the bill
• Baltimore Sun's editorial on bill

I'm pleased to report that our own John Bratt won two consolidated cases in the Maryland Court of Appeals today. The decision really goes to the core of the question as to what kinds of financial information from professional expert witnesses is discoverable. One of the cases has already gone to verdict; the other is a serious brain injury case where our ability to cross examine Defendant's expert on bias is going to be extremely important.

I would summarize the case but I suspect John can provide the best summary on his Baltimore Injury Lawyer Blog. When he posts his summary, I will alert Maryland Injury Lawyer Blog readers. (It is worth adding John's blog to your RSS feed if you have not already done so.)

You can find the Maryland Court of Appeals opinion here.