Maryland Injury Lawyer Blog

Jonathan Turley writes a good post about the insanity of the cap on liability provided by the Maryland Local Government Tort Claims Act.

The case involves a car accident that resulted from a Montgomery County, Maryland police officer doing what a noticeable minority of police officers do in police cars: drive at excessive speeds. This police officer was doing 56 miles per hour in a 30 mile per hour zone. When we see this on the road, no one even complains about it. It is just something we accept. Police officers drive at a speed of their choosing, even off-duty. That is, until an accident like this happens.

Continue reading "Paralyzed Child's Claim Against Montgomery County" »

I'm squinting my eyes but I still cannot get the correlation between the national debt and limiting medical malpractice lawsuits. This Huffington Post commentary points out the insanity of including medical malpractice reform on our "to do" list to tackle the national debt. The "Bristol Palin as America's Next Sweetheart" like stretch: if doctors made more money, it would reduce medical costs and Medicare would be cheaper.

If the Baltimore Orioles would get better baseball players, the people of Baltimore would become happier and more productive. Baltimore could not contain these good vibrations to its own borders. The economy would improve, more people would pay taxes, and we could reduce the national debt.

How is that logic different from the idea that reducing malpractice lawsuits would reduce the national debt?

The blog post leaves out another reason why the notion is insane. Medicare makes a fortune in successful malpractice cases because it asserts it subrogation interests and is repaid a significant amount of money (I would love to see data on how much but I'm sure it is billions) it spends on medical care that results from malpractice (and accidents, product liability claims, and other torts).

It is a reasonable view to support medical malpractice reform. I completely disagree with it for scores of reasons. But I can admit that people smarter than I support limiting malpractice lawsuits in this country. (I think.) What I will not concede is that there is even a reasonable argument that limiting the rights of medical malpractice victims will help reduce the national debt.

An Illinois court awarded $2.5 million in a lawsuit against a truck driver who admittedly (1) crossed the median strip and hit the Plaintiff and (2) had been driving for 19 hours that day.

Obviously, and the result underscores this point, this is a tough case to defend on liability. If you are Defendants' truck accident lawyer, what kind of defense do you muster in a case like this? Oh, they always have something it seems. In this case, they went for the "everything and the kitchen sink" defense. First, they claimed his vision was impaired due to diabetes. This is a lot better defense in a passenger car case than it is in a truck accident case. If you are a truck driver driving a big rig truck, we expect you to have your diabetes under control or don't get behind the wheel of the dangerous weapon that is a truck. Second, and even more improbable, the defendants' truck accident lawyer also argued that the accident occurred because the truck driver's tire exploded.

Continue reading "Truck Accident Trials and Jury Credibility" »

A woman injured in a car accident has filed a lawsuit against Four Loco, the makers of the controversial drink that combines alcohol and caffeine. The lawsuit against Four Loco claims that the driver of the car the woman was in had drank Four Loco before the car accident that injured the Plaintiff. The lawsuit names the driver (presumably the woman's friend), Four Loco's manufacturer, and even drags in the convenience store that sold the Four Loco. (The great, great grandson of the first man to combine rum and coke was not named.)

I am assuming the lawsuit stems from the FDA's warning last week that Four Loco and other caffeine-alcohol drink manufacturers have used caffeine as an unsafe food additive in the drinks. The FDA left the door open for further action.

Continue reading "Four Loco Lawsuit" »

Certainly, the title is a little hyperbolic. But at the Maryland Court of Appeals Rules Committee meeting this morning, a memorandum was issued from Chief Judge Robert M. Bell requesting a study of how other jurisdictions have dealt with the comparative negligence doctrine.

Just a study, mind you. But this memo jumps right to the heart of the matter.

If the Court were to consider replacing the doctrine of contributory negligence, a common law doctrine in Maryland, with some form of comparative negligence with some sort form of comparative fault:

(a) whether in the Committee's view, the Court could effect that change by Rule, as opposed to judicial decision.

(b) if the Court were to consider the adoption of such a Rule, what form and content of the Rule should be; and

(c) what related legal principles, such as joint and several liability, would need to be considered concurrently.

Well thank you for not beating around the bush, Judge Bell. There is also a specific request for the consideration of views of the Maryland Defense Counsel, the Maryland Association for Justice, and the Maryland State Bar Association.

Timely, I wrote about the interplay between joint and several liability and comparative negligence this week. In terms of what position these groups take, I think it will all depend on joint and several liability. If joint and several liability remains unchanged, Maryland plaintiffs' lawyers would support comparative negligence and Maryland defense attorneys would be obligated to make a big stand in opposition (although that is a lot of show, many self-interested defense lawyers get that more opportunities for plaintiffs' is more opportunities for them). But if it is a swap of comparative for abolishing joint and several liability, this becomes a more, for lack of a better word, nonpartisan issue where fractions are going to split off within the interest groups.

Continue reading "Maryland Comparative Negligence on the Way?" »

The U.S. Supreme Court will likely deadlock 4-4 in a seat belt design defect wrongful death lawsuit against where Mazda is arguing that Plaintiff's claim is preempted by federal law. The seat belt at issue is a lap-only seat belt, which I think sounds defective on its face by most of us. Mazda does not make them anymore. Neither does anyone else.

A tie is a win for Mazda because it won the case below. Justice Elena Kagan is sitting this one out because, as Solicitor General, she urged the Supreme Court to consider the case. I'm sure she will consider the facts anew when she gets a crack at this in a different context, but is there any real doubt about how Justice Kagan is going to rule on this?

Continue reading "Seat Belt Lawsuit Likely to End in Draw" »

The Drug and Device Law Blog writes a good post on a recent Facebook discovery opinion, arguing in favor of making Facebook posts, ostensibly intended only for your "friends", discoverable:

We might have responded: C’mon, Dude, everyone knows that what you tell or write your friends may come out some day. You knew that when your best bro told everybody about that problem in your nether regions. And when your teacher intercepted the note you passed in class, you never would have thought to object on privilege grounds before she read it to the class. Nor could you do anything when the cops squeezed your roommate and he told them where you said your stash was. So why should what you tell your friends in Facebook posts be protected from disclosure when what you tell your friends in other ways is not?

First, I wonder if the Drug and Device Law Blog is suggesting discovery should just be produced or reviewed in camera by the court. The blog has argued forcefully for liberal designation of confidentiality for discovery documents. But Facebook posts that could cause embarrassment and humiliation and be used completely out of context? Let's all look at those. We should be sensitive to huge multinational drug companies but let's just rifle through the little man's private life. Somewhere, Michele Bachmann is smiling and she does not know why.

Continue reading "Facebook Discovery News" »

You are a lawyer looking for an expert in a medical malpractice case in Maryland. You find one you think is perfect. She has strong opinions, a great reputation, and will be able to communicate well with the jury. You have just one problem. Although your expert is intimately familiar with the care/procedure at issue, she is board certified in a different practice area. (I would like to dedicate this paragraph to basketball analyst Hubie Brooks, who virtually invented this talking in the second person style.)

Maryland malpractice lawyers deal with this type of quandary all the time and often feel compelled to err on the side of caution and find an expert in the exact same specialty as the doctor suspected of malpractice. You err on this side because you just know that the malpractice defense lawyers on the other side are sure to bring a motion to dismiss your case. Best case scenario, you have a hassle on your hands. Worst case scenario, you run into the wrong judge who dismisses your case.

This scenario played itself out in a medical malpractice suit filed in U.S. District Court in Greenbelt. Defendants' malpractice lawyers sought to dismiss Plaintiffs' malpractice lawsuit against three of the four defendants because Plaintiffs' certifying expert is a pediatrician and not an emergency room doctor or an internist (there was also a pediatrician defendant who, of course, had no basis to join in the dismissal). The Defendants' argued that having a pediatrician was the exact purpose of the statue in the first place, to heel "hired gun experts from freely roaming outside of their chosen fields, and opining on standards of care that they cannot possibly address, based on the scope of their training and certifications."

(Hired gun experts. Funny hearing that from defendants' malpractice lawyers. Of course, the experts defendants' attorney retained are not hired gun experts. They are just great doctors and great humanitarians, who, like Derek Jeter, would play for free. The hundreds of thousands of dollars they make testifying is a mere byproduct of their good work.)

Continue reading "Medical Malpractice Expert Witnesses" »

Contributory negligence is about as dead of an idea as communism. Maryland is one of five jurisdictions in the United States (along with Virginia, Washington D.C., Alabama, and North Carolina) that have maintained this antiquated notion that being 1% at fault for your own injuries should be a bar to your claim. It is pretty much intellectually indefensible, really.

One big impediment of changing this law in Maryland is a powerful plaintiffs' lawyer. I will not name this lawyer. (One small hint: he owns a baseball team, has more money than everyone reading this blog post combined, and recently donated a truckload of money again to the University of Baltimore School of Law.)

Why would any plaintiffs' lawyer oppose comparative negligence? The reason is simple: when this issue gets brought up in the Maryland legislature, a legislator always says something to the effect of, "This is not a bad idea. But certainly joint and several liability is a bad idea, too. How about we get rid of both contributory negligence and joint and several liability?" Some states have done exactly this. Other states, like Maryland, have allowed defendants to make contribution claims to try to reduce the claim of inequity that one defendant should bear the entire loss for an accident that was caused by more than one party.

Continue reading "Joint and Several Liability: A Law and Economics Defense" »

When you die in a fatal accident in Maryland, two claims arise: a wrongful death action and a survival action. Wrongful death claims are for the suffering and economic loss for surviving family members on their own behalf. The survival action is brought by the estate, which means it is actually the only claim the person who died really brings for themselves, in their own name for their own loss of life.

If you die instantly in a Maryland accident - or there is no proof of conscious pain and suffering - defense lawyers argue there is no survival action or no claim for the decedent for their death.

Maybe I think this stuff through a little too much, which makes me wonder if I can keep this job until retirement. But it just seems ludicrous to me that a person has no cause of action in their own right because we can't prove they suffered before they died. A trial court in Maryland recently took this a step further, ruling that there is no conscious pain and suffering when a five year-old boy drowns in a pool because there was no "evidence" of conscious pain and suffering. The Maryland Court of Appeals thankfully reversed the trial court on this point because it is obviously more likely than not that the poor child suffered. (I would love to be wrong about this and I try to make myself feel better by thinking it was not that long a period of time. But it does not make me feel better.)

Continue reading "What Do I Get for My Own Wrongful Death?" »

After a car accident, police do an investigation, talk to the witnesses, and file a police report. Although the police report is generally inadmissible at trial in Maryland, the facts contained in the report and the conclusion of the police officer as to who was at fault colors - sometimes permanently -how the insurance companies view the merits of accident claims.

In serious injury accident cases, often there are parties to the accident who are unable to talk to police because they are tending to their injuries. Obviously, this problem is even more pronounced in wrongful death accident cases.

I recently received a call from a potential client who forwarded to me the police report in this case that showed that she was undeniably the cause of the accident. The problem was that as a matter of physics and given the property damage, the accident could not have happened as the police report suggested. What did the woman who was listed at-fault tell the police after the accident? Nothing. She was airlifted to shock trauma. So the police officer listened to the driver that was there, accepted his story and then filed his police report listing the woman as the at-fault driver.

The big lesson here for accident lawyers is to take the police report's findings with a grain of salt. If you have a serious injury case, do your own investigation of the accident as opposed to making a decision on the case by looking at the police report.

• Sample Police Reports (under "Sample Forms for Car Accident Lawyers")
• Baltimore City Police Reports (how to get)
• Montgomery County Police Reports
• New (Since Modified) Rules on Getting Police Reports
• Ambulance Chasers Using Accident Reports

In his ESPN column that I regularly read, Bill Simmons, a.k.a. the "Sports Guy" writes about the controversy that ensued when a basketball player, Charles Villanueva, claimed that another basketball player, Kevin Garnett, called him a "cancer patient" while trash talking during an NBA game. Villanueva suffers from a condition that does not allow him to grow hair.

The Sports Guy praises in a sidebar to his column (an opinion piece that is oddly sponsored by Miller Lite) the reaction of former NBA player television analysts who candidly said that trash talk is ubiquitous in the NBA and they have heard a lot worse on the court. The gist of the Sports Guy's opinion was it is good to hear insiders telling it to us like it really is as opposed to trotting out the usually trite and politically correct answer.

Continue reading "The Sports Guy and Torts" »

Jury Verdict Research published a study this month that found that medical malpractice plaintiffs receive an average of $983,769 for being "incorrectly diagnosed with a serious illness resulting in fear or unnecessary treatment." For once, the median is not far behind the average. The median misdiagnosis verdict was $843,362.

To provide a contrast, the study also provided the most recent national data for medical malpractice verdicts. The average medical malpractice verdict in the United States over the last 11 years is $713,457. The median malpractice verdict is $196,500. Approximately 15% of malpractice awards exceed $1,000,000 which certainly inflates the average, although a number of these verdicts are not collectable because of either caps on noneconomic damages or because the doctor did not maintain malpractice insurance.

The results for the July 2010 Maryland Bar Examination will be posted here at 4:30 p.m. today. Good luck to everyone taking the exam.

• Maryland Bar Examiners Website
• Last July's Results (read these, they will pump you up a little bit)
• Advice While You Wait Another Few Hours

On our website, we have sample depositions in car and truck accident, medical malpractice and product liability cases.

As a young lawyer, I learned how to take a deposition like a young quarterback with a clipboard, second chairing depositions where I had the opportunity to watch some of the best plaintiff and defense lawyers in the country. I was able to see what I liked, what I didn't like, and what would work for me.

Most Maryland personal injury lawyers are not afforded this kind of opportunity. For those who have not had the opportunity, I think reading sample depositions is the next best thing. None of these depositions are intended to be held out as "How to Take a Deposition 101." In fact, honestly, these sample depositions were largely pulled out at random. But reading depositions of others gives accident and malpractice lawyers a chance to see how another lawyer approaches the task under a given fact pattern, giving you the idea of what you should (or should not) do.

Good morning, Judge Asti. My name is Joe Smith. I represent the Plaintiff in this case. I'm here seeking that this Honorable Court use its discretion to.....Oh, you remember me, Judge? Yes, I was big into Judge Jarashow's campaign. Yes, you might recall, I said some awful things about you. Sorry. Anyway, my client is.....

Many Anne Arundel County trial lawyers stood up to support Judge Laura S. Kiessling and Judge Ronald Jarashow's campaigns against Alison Asti. Interestingly, this effort continued long after it became quite obvious to everyone that Asti was going to win. Our firm was a co-sponsor of one of the last fundraisers for the sitting judges. But we were never anti Alison Asti. You can go back through the numerous blogs posts I have written and there is nothing critical about Judge Asti. I never even pointed out that she went to Duke. (She went to law school at Maryland so maybe it is a wash. Maybe.) In fact, I said I bet she will make a good judge in spite of her lack of trial experience just like I think Justice Kagan will be an effective justice.

(Actually, read through this blog. I really don't have bad things to say about anyone. I just criticize positions. There were absolutely no issues in this campaign from any of the candidates. Which is a part of the problem with judicial elections)

Still, I don't regret that our firm supported the sitting judges and I still wish Judge Jarashow had won. The Maryland State Bar Association is with me too, supporting all of the sitting judges out of principle. I think judicial elections are like the election for homecoming king in high school with good looks and athletic prowess replaced by political savvy, great organizational skills, and having a name that is not alphabetically challenged. It is the wrong way to pick a judge. In fact, I would support a less qualified sitting judge over a more qualified challenger. It is like stare decisis. I think that the strong rebuttable presumption should rest with the sitting judges. By all accounts, Judge Jarashow did not need any rebuttable presumption: it was clear he was eminently qualified for the job.

Now we come to a reason heretofore unmentioned in my many rants against judicial elections: hard feelings. Lawyers that took real shots at soon-to-be Judge Asti are now going to appear in front of her. So will lawyers like me who supported the sitting judges. Without flattering myself, I would be surprised if Alison Asti has not seen my blog posts on the election. My posts have ranked pretty high on the search engines. I really doubt she will hold this against me or my law firm (and, hey, we are even LinkedIn friends from long before this campaign started). But some trial lawyers made some pretty harsh comments about Asti's qualifications. Those lawyers can't be excited about going in front of Judge Asti and asking for her to use her discretion in favor of their client. I don't think she will really hold it against anyone's clients. But, then again, human beings are human beings.

In judicial elections generally, I think there are more likely to be hard feelings because judges are probably more like the rest of us than politicians. A career politician like Harry Reid, you could insult his entire family and he would probably be as equally willing to work with you after the election as he was before. "It is all in the game," as Omar Little used to say on The Wire. President Obama warmly hugs and campaigns for Governor O'Malley even though he was an ardent supporter of Hillary Clinton in the primaries. But for judges, it is not all in the game because they are not in the game. They just want to be a judge. Accordingly, I suspect that many of them remember who was strongly for or against them. Mark this down to reason #9,308 why judicial elections are a bad idea.

• Anne Arundel County Judicial Election Results from Tuesday
• Overview of the Race and My Position
• Personal injury cases in Anne Arundel County

As expected, Maryland voters overwhelmingly rubber stamped approved by a two-to-one margin a constitutional amendment to increase the damages threshold for civil jury lawsuits from $10,000 to $15,000. What does this mean? Currently, any case pled in District Court in Maryland for more than $10,000 can be "bumped up" to a jury trial. This new law increases the amount to $15,000.

There was no real debate on this issue. Pretty much everyone supported it, including small businesses, except for car insurance companies (you can find my overview of this issue here).

My theory on this, that I expressed back in April, is that most voters are like me: if there is constitutional change on the ballot and you have not heard a debate about it, you figure there is a good reason for it. Why? Because given the absence of public debate that would make me more knowledgeable on the topic, I defer to the Maryland legislature and figure they put it on the ballot for a reason. Of course, some people are going to vote against everything they don't fully understand because they have a different world view. I suspect that most people who voted for or against the bill last night did so more because of how they view the big picture on these types of questions as opposed to the merits of the bill (which is why I made the rubber stamping joke).

I received two phone calls today from lawyers who have read my prior posts on this and wanted to know what the effective date will be for this new law. After the law is approved by the Maryland Board of Elections, Governor O'Malley will then "proclaim" that the amendment has passed. This will probably happen late this year or early next year. But it does not apply to the loss date but to the date a lawsuit is filed. So a lot of Maryland accident lawyers with smaller cases that they want to file for $15,000 to avoid the potential of removal to Circuit Court may want to keep those cases on hold if there are no statute of limitations issues until after the effective date of this new law.

I wish they had had the foresight and wisdom to include a modest escalation clause for inflation. Because $15,000 is going to be worth $7,500 in 10 years and we will be back to the drawing board.

Alison Asti circulated flyers today encouraging voters to vote for her and Circuit Court Judge Laura S. Kiessling. The flyers look similar to those put out by Judge Kiessling and Judge Ronald Jarashow, who have campaigned together. Judge Jarashow, according to the Capital Gazette, did not mince words, calling Alison Asti’s flyers "despicable," and said they showed her "lack of integrity." Wow.

Meanwhile, the early returns are not looking good for Judge Jarashow. I've previously posted my thoughts on the race and predicted the loss of Judge Jarashow which sadly appears to have come true. Hopefully, Governor O'Malley puts him right back on the bench.

One thing I really don't do is rubberneck traffic accidents. When I am king, rubbernecking will be a felony.

Except for traffic accidents, I am a rubbernecker. My worst rubbernecking comes in comment sections of articles and blog posts. I found this one this morning talking about the election of Maryland Court of Special Appeals judges. Really, I would like to get all of the time back in my life that I have spent reading this kinda garbage. It reminds me of what that guy said when looking at The Kramer: "He is a loathsome, offensive brute... yet I can't look away." I need to do a better job of looking away. (Memo to my 2011 New Year's resolutions file.)

In an "election" for the Maryland Court of Special Appeals, Marylanders are given an up/down vote on judges. Think Soviet Union 1958 (hey, look, Khrushchev won again - good for him). But having these judges on the ballot is a waste of time. All of the Maryland Court of Special Appeals judges should be retained because none of them have been accused of any ethical violations. We should just skip the show altogether and give these judges a single term or life tenure (of course, Maryland defines life as age 70 but that is a whole other story). Practically, this is what we are doing anyway.

Some people are going to vote against the Maryland Court of Special Appeals judges. This is fine. Voters are playing within the system. But I would like to poll the voters who vote against the CSA judges and ask them, "What opinion did the judge write that made you vote no?" I will bet you that less than 1% of people voting "no" can answer.

The big race in my jurisdiction is Kratovil-Harris. I'm not sure who is going to win and I'm worried my choice is going to lose. Still, I feel like the electorate will have spoken. I think if Kratovil loses, it will be a referendum vote on President Obama's first two years more than a vote for Harris. I think this is completely unfair but I don't think it is unreasonable (if that makes sense). But in all of these judicial elections in Maryland (certainly Ronald Jarashow/Laura Kiessling/Alison Asti is the closest example to home), I don't think voters are really in a position to make reasonable choices.

Continue reading "Maryland Election: Court of Special Appeals Judges " »

Sometimes, I think personal injury lawyers - myself included - subconsciously tend to think we know better than the client in terms of what damages they have that really matter to a jury. But we often get it wrong. More often than not, what is in the client's heart is also going to be what has the most impact on a jury. Paul Luvera offers a tip that he picked up in Paris of all places on how to get clients to open up about what their real injuries are and how to present those injuries to a jury.

Early in my career as a plaintiffs' lawyer, we tried a case where I spent a great deal of time preparing the witness to testify. Literally 20 minutes before she testified, she told me in a whisper what really bugged her about her injuries. She had lots of nieces and she went from being the fun aunt to the aunt who always complained of being in pain. That translates okay in this blog post. But you had to be there and you had to listen to the way she told the story. It took me two seconds to realize it was very real to her. I brought out the story on direct and it became one of the themes of our case and one of the reasons, the jury told me later, they arrived at the verdict they did.

Every professional thinks they know what is best for their clients and they are often right and the client is dead wrong. An exception to that rule is pain and suffering damages where the client typically knows in their heart exactly what damages matter the most. This post from Paul Luvera gives trial lawyers another method in getting to that sometimes elusive "what really matters."