Maryland Injury Lawyer Blog

The U.S. Third Circuit Court of Appeals dismissed a ridiculous lawsuit against the New England Patriots and Bill Belichick by a season ticket holder/lawyer who brought a lawsuit on behalf of "all Jets fans" who had bought tickets to Jets-Patriots games in New Jersey during Belichick's tenure.

The basis for the suit? The Patriots/Belichick's conduct during the infamous Spygate game between the Patriots and the New York Jets in September 2007 where the Patriots coaches were caught using a video camera to steal the Jets signals.

The court found that the Plaintiffs possessed "nothing more than a contractual right to a seat from which to watch an NFL game between the Jets and the Patriots...."

I almost universally like Progressive insurance adjusters. Progressive's claims adjusters seem nicer, more professional, and less inclined to take cases personally than a lot of other insurance companies. I can say the same thing about Progressive's lawyers. Most are decent, straight shooters and good lawyers. Oh, yeah, Progressive's stock (NYSE:PGR) has done fairly well since early February.

I've fully exhausted the list of nice things I can say about dealing with Progressive. This insurance company just does not make fair settlement offers in car accident cases. I believe that in a given case if you could line up all of the insurance companies and ask each one to make an offer based on their evaluation of the injuries from a car accident, Progressive would give the lowest settlement offer on that case. I also think Progressive would be the first to deny liability in an accident case.

Why does Progressive do this? Largely because it often has so little to lose. My theory with Progressive is that it tries to compete on the Internet for car insurance buyers fighting hard for the lowest price. These are often the same buyers who are not willing to set their liability insurance limits at a reasonable amount. When you trademark the phase "Name Your Price" in selling insurance, you are probably not selling a ton of coverage. So with its small insurance policies, often $20,000 in Maryland, Progressive can stick its neck out knowing that, in the end, it can fold before trial and their exposure is limited.

For example, we have one tough case where a man's life was pretty much destroyed by a car accident in Ocean City. It is a rear end accident, he only has around $20,000 in medical bills but he needs a future surgery. So what is Progressive's settlement offer in the case? $5,400.

So Progressive hires its own expert to say the guy is not hurt, right? Actually, no. Progressive's own expert did an "independent" medical exam and found that all of the medical bills were related and agrees that all of the treatment was necessary. Don't take my word for it, this is the defense expert Progressive hired in the case. (Here is a redacted copy of Progressive's doctor's independent medical exam.) I think it is beyond ridiculous that this expert suggests that half of his surgery should be attributed to his preexisting condition because he had "mild degeneration of the cervical spine" before the accident. But even if all of the plaintiffs' treating doctors get the Ebola virus, even if Progressive's expert becomes our expert, our recovery at trial is going to be far, far in excess of Progressive's policy limits.

Progressive has a small in-house defense firm in Maryland and does not have the resources (I should say has not set aside the resources - Progressive has lots of resources) to wage war with plaintiffs' lawyers throughout Maryland. So Progressive will often increase their settlement offers substantially after a lawsuit is filed. In this case, Progressive has rung up a lot of legal bills but will still have to settle the case for the policy limits. It would have saved Progressive a lot of litigation costs to properly evaluate this case at the outset.

I spend a lot of time responding to random questions from other lawyers, in part due to the fact that the Maryland Injury Lawyer Blog has a decent following. I'm going to start publishing some of the responses to the extent they are helpful to anyone else. The topic for today is the practical ramifications of requests for admission that are deemed to be admitted at trial.

Reader's Question: The federal and many Civ Pro rules deem admissions admitted if not responded to within 30 days. Here is the scenario: the court rules the party was dilatory in responding and the admissions are deemed admitted. However, the party did respond to ROGS in time, as you expect some of the answers are clearly incompatible with deemed admitted admissions. Trial time -- if your read into the record the answer to the admitted admission doesn't the witness have the right to respond no that's incorrect these admissions were deemed admitted by the court they do not reflect the facts accurately, or no that's incorrect as I stated in my ROG answers the correct answer is . . . . or will the court not allow the witness to rebut the admitted admission even though a fact finder would see that the admitted admission is actually factually wrong (i.e. admission states that on the day the car you were driving was white however one that day you were driving your own car which was blue but the admission deemed admitted would "force" you to accede to it being white)?? Would the admitted admission be treated akin to a comment made during a depo and can be used during trial to question the veracity of the witness?

Fundamentally I'm wondering about the awkward reality of admissions deemed entered by failing to timely file a response and the fact that the deemed admissions are factually incorrect -- would a court countenance allowing a case to be won or lost based on the dubious truth of admissions deemed admitted simply because the rules require the admission to be admitted.

My Response: I've never met anyone who has ever tried that case. Because either (1) the case settles because the admitting party panics or (2) the court lets the admitting party off the mat. But, fundamentally, the rule would have no meaning if the Defendant could do what you suggest. What would be the point, Judge, of having the rule if enforcement of it allowed Defendants to wiggle out by disagreeing with themselves elsewhere? You can't create a contradiction in your own discovery responses and argue the one you like best. Therefore, the remedy should be the admitting party should be estopped from making any contention that contradicts the request for admission. That's your argument.I have settled cases using failure to respond to RFA. Not 31 days kinda failing to respond, more of the letters of the "Hey, these things are going to be deemed admitted if you don't answer and you still get no answer" variety. There is Maryland law that says in this case, enough is enough and they are deemed admitted. Good luck! - Ron Miller

The Maryland Daily Record published a three part series over the last month on mediation in Maryland personal injury cases, a piece I wrote with the Honorable Clifton J. Gordy . You can read the articles on-line but you have to be a subscriber to the Daily Record to read the entire article.

• Part I of Mediation in Personal Injury Cases
• Part II of Mediation in Personal Injury Cases
• Part III of Mediation in Personal Injury Cases

Not often, but at least a few times a year, our law firm gets a wrongful death case in Maryland where, regardless of the facts, there is no claim. In this case, the victim, who may be loved by family and friends, has no wrongful death claim because the victim has no spouse, children, or living parents.

Noneconomic and economic measures in Maryland do not provide money damages for loss of life of the victim on their own behalf. The lack of joy that comes with being alive and missing out on a life goes uncompensated. So if you have no spouse, dependents, or children and are negligently killed by another person and you die instantly, there is no recourse in Maryland law for a wrongful death claim or any other meaningful claim outside of your funeral expenses.

Accordingly, a doctor can see that a patient has no primary or secondary wrongful death beneficiaries and know that there is no possibility of a wrongful death medical malpractice claim.

Do I think this happens where doctors feel free to take a risk with a patient because the patient's death by definition could not bring about a wrongful death claim? No, I really don't. But the whole idea that you could recklessly kill someone with no consequences of any kind is a bad thing.

The answer? Change the law to have an entirely new damage claim in Maryland for loss of the enjoyment of life for the victim? Whatever you may think of the idea, there is absolutely no inertia to change the current state of the law.

So what could we do that is more practical to solve the problem? I think the answer is simple. Allow siblings, grandchildren and other clearly defined relatives into a third contingency tier of wrongful death beneficiaries. It would open up only a few new claims but we could all know that there will be accountability when someone is killed by someone else negligence. I think that this would be justice.

Continue reading "Maryland's Wrongful Death Statute" »

The first line in this editorial adequately summarizes the problem that leads to unsafe drugs and medical devices:

What would your reaction be if the results of a football match were reported as 5:0 by one of the teams and as 3:1 by the other team?

This editorial underscores a point that I think the "FDA approval is the gold standard" crew completely ignores: it is painfully easy to rig drug testing to get the desired results at any stage of the research and testing process. Most of the injuries were at the end of the study? Change the end point. Most of the adverse effects were in patients with blonde hair? Take them out of the study.

Okay, that is a little bit of hyperbole. But you get the point. No doubt there are a lot of good, decent people at the world's largest pharmaceutical companies and most make the right decisions. There are also some pharmaceutical executives who would shoot their own parents in the head before not pushing what they believe will be a profitable drug to market. There is no doubt about this either. By the time the lawsuits that will, in the end, kill most of the profitability hit, that executive will have gotten a promotion out of that division (or off to another company). We can debate how often this happens, to be sure. But we really can't debate that this does happen.

As predicted here, President Obama will nominate Elena Kagan for the Supreme Court. What? Virtually everyone predicted Kagan?

My Kagan pick was based on one thing: age. The other candidates are too old to hope for a long legacy. Kagan's two big competitors, Judge Merrick Garland and Judge Diane Wood, are 57 and 60 years-old. The Republicans started this, picking justices younger justices. President Obama is carrying on this dubious legacy.

I read an editorial in the Washington Post a week or so ago suggesting term limits because of this problem of presidents discriminating (in a loose sense of the word) against older Supreme Court candidates because well-qualified candidates are disadvantaged at the height of their legal careers.

It is always heresy to suggest the our capital "F" Founding Fathers made a decision that did not stand the test of time, but isn't this a real problem? Life tenure, this Post editorial argues, is a relic of a time when life was a lot shorter.

I'm actually not sure that is true. I would think this would make the case even stronger for nominating young justices that are going to last. If people are dying younger, get in younger people, right? I think it is probably more political than it was in the past. I usually dislike for the nostalgic past that probably never was. But I do think this is the problem and presidents of both parties are falling prey to it.

Again, holding out Maryland up as the gold standard for the second time in the last week, I don't think recent Maryland governors have fallen prey to this tendency to grab someone young and Maryland's relatively liberal governors (and Governor Ehrlich) seemed to have looked for the right people without allowing rampant idelogy to control their choice.

Continue reading "Elena Kagan to the Supreme Court" »

A woman has sued Starbucks for serving “unreasonably hot” tea, causing her second degree burns. Reuters has the article which includes reader comments. All of the commentators are rushing to judgment, claiming either the woman is pond scum (95%) or that Starbucks was "clearly negligent." Adding to the fun, the Plaintiff does not have a European name. So we get bonus racism and xenophobia in addition to the inaccurate conclusions of law. It is a win-win situation for all.

Gun to my head, I suspect this is not a legitimate claim. But who knows? Did Starbucks know or have reason to know that it was serving a liquid that was much hotter than industry standards require?

The immediate rush to judgment (people, didn't Johnnie Cochran teach us anything?) and people's abilities to make breathtaking leaps of logic/faith with absolutely no evidence is always disconcerting.

• Eric Turkewitz provides more commentary

The Drug and Device Law Blog has a guest post on the status of the Medical Device Safety Act of 2009, a bill that has been introduced in Congress that would overturn the Supreme Court's holding in Riegel v. Medtronic preempting state common law claims challenging the safety of FDA approved medical devices.

The blog can be summarized as follows: Congress is doing nothing.

President Obama is whittling down his list of Supreme Court candidates and will have a choice this month. But the face of the federal courts is changing under President Obama. I'm hijacking the Baltimore Sun's article on Monday but changing the focus to the subject of this blog: personal injury cases. Oh, and yeah, I completely disagree with the entire premise of the article.

The focus is on the replacement for Justice John Paul Stevens, giving President Obama the opportunity to select his second Supreme Court judge this month. But the impact of a new Supreme Court judge on personal injury cases will most likely be relatively insignificant, at least in the short term. Riegel v. Medtronic was a 8-1 blowout. Wyeth v. Levine was decided by a comfortable enough 6-3 margin. A new judge is not going to change the court's rulings in Bell Atlantic v. Twombly and Iqbal v. Ashcroft. Regardless of whether Elena Kagan or Glenn Beck is chosen, I don't think there is going to be a significant difference in how the Supreme Court deals with product liability cases.

For personal injury lawyers, the greater concern than who is on the Supreme Court is who the trial judge is. Clearly, in accident, malpractice and product liability cases, the trial judge you have really does matter, particularly on Daubert issues and other evidentiary rulings. Judges have a lot of discretion on what comes into evidence at trial. Let's face it: President Obama's judges are more likely to allow plaintiffs to admit evidence than judges appointed by President Bush. Obviously, this overgeneralizes but the point is true.

The Sun suggests that Obama is changing the face of the federal judiciary. But, in terms of new sitting judges, President Obama has not gotten very far. He has only appointed 24 judges: one Supreme Court justice, nine appellate judges, and 14 trial judges. Not exactly the major makeover that is the premise of the Baltimore Sun article.

Continue reading "President Obama, Judges, and Personal Injury Cases" »

I'll admit to being a sucker for kind words:

I am in CA and I wanted to thank you for your site. I am an innocent victim up against a very ruthless old attorney who has already forced me to bankruptcy and is trying to take my home for his retirement. He is partnered with an incredibly dishonest client and overwhelmed my attorney for 5 years with process, motions, etc... I am now pro se and working diligently to keep up with him, and your site gave me some great ideas. I applaud you for putting your work on your site, and I sure wish you guys were in California. I am impressed with the quality and ideals which your firm obviously believes in. I wish I could have been your client.

I often hear from lawyers I consider to be quite experienced who tell me they repeatedly use our website as a tool in their law practices. Some insurance companies have even given us naming rights, calling certain motions "Miller & Zois" motions because they are widely taken from our site and filed in other cases.

• Personal Injury Lawyer Help Center (examples and other support for lawyers handling accident, malpractice or product liability claims)
• Understanding Your Claim (explanation of personal injury process from hiring a lawyer through appeal)