Maryland Injury Lawyer Blog

• Abnormal Use has an idea for a blog post. Then it tries to retrofit some facts. Stella Liebeck stars.
• This blog post on whether State Farm can hold up a settlement while getting the Medicare labyrinth squared away has generated a lot of interest.
• Arm injury verdict statistics
• John Day writes about assumption of the risk in California.
• Let us end as we began. Stella Liebeck. Stella Liebeck. Stella Liebeck.

Jury Verdict Research found that the median jury verdict in arm nerve damage cases over the last 10 years was $81,095. This analysis is based on plaintiff verdicts rendered from March 2001 through March 2011. Arm nerve damage is defined by the study as injuries to the median nerve, radial nerve, ulnar nerve, musculacutaneous nerve, and axillary nerve which are all branches of the brachial plexus. Carpal tunnel injuries were, however, specifically excluded from this study.

JVR provides more median verdicts for arm injuries:

• Arm amputations: $3,500,000 (75% of verdicts over $1,000,000)
• Arm and Elbow Nonfractures, Arm Nerve Damage and Arm Amputations: $61,863 (13% of awards over $1 million).
• Elbow Injuries without a Fracture: $13,420 (2% of awards over $1 million)

Personal injury related (mostly) stories I found of interest:

• The Washington Post's Hank Stuever has a nice column looking at the new documentary on tort reform, "Hot Coffee." He writes, "To support tort reform, you have to believe all lawsuits against businesses are a threat to the free market. You have to acquiesce to the so-called invisible hand..." (HT: Overlawyered, through Walter Olson, who runs the pro-tort reform blog, doesn't like the Stuever column and comments favorably on the Miami Herald's less-glowing review, calling the documentary "an unpaid advertisement for personal-injury attorneys and their eternal quest for jackpot justice."). Plaintiffs' lawyers are real excited about this movie. Personally, I think it just brings up a conversation we don't need. No one who cares about this is going to change their mind now. The accident happened 17 years ago. Something must have happened in our nation's courtrooms in this century that is more interesting. Besides, this case brings everyone's crazy aunts and uncles out of the closet on both sides. Stella Liebeck could admit she poured the coffee on herself on purpose (she died so that may not happen) or McDonald's could say they made coffee extra hot because they hate old ladies. No one's opinion would change.
• Max Kennerly posts about why he believes a jury chose to find--to the tune of $21.4 million--for a plaintiff in a medical malpractice case who was "noncompliant" with doctors' orders.
• Should a juror who sends a note during deliberations asking for the phone number of one of the lawyers, calling him a "cutie," and mentioning her recent divorce stay on the case? Should the verdict stand? Via Legal Blog Watch. Roy Black married a juror from the William Kennedy Smith trial. And no one really talked about it.
• U.S. doctors may be performing surgery on the wrong body part 40 times a week (Eric Turkewitz). I realize we have 311 million people in this country. A lot of whacked out stuff is going to happen. But 40 times a week?

Continue reading "Personal Injury News" »

I have started a little series on David Ball's Damages 3 book on how to prepare and try a case. I'm going to keep that going. But, today, I'm going to turn to another "must read" book for plaintiffs' personal injury lawyers (and, shhhh, probably defense lawyers too): Polarizing the Case by Rich Friedman.

Ultimately, plaintiffs' lawyers file personal injury lawsuits because of one of two things in dispute: liability or damages. If you are regularly filing lawsuits where both liability and damages are significant issues, you are going to be putting your resume out there soon. Because your firm is going under.

If the trial is ultimately about damages, the likelihood is that some element of the defense is that there is a chasm between the plaintiff's claim of the pain and consequence of the accident and reality. If liability is clear and there is no claim of preexisting injury, this is pretty much the only defense to the case. Rarely are both lawyers telling the jury, "Hey, we all agree on the injury and the impact on the Plaintiff, we just need to know what the value of these injuries is."

There is a tension in the defense lawyers' argument. Usually, their play is to say, "Believe me, we are not calling the Plaintiff a liar. We would never do that. But we are going to convince you that she is that "L" word that we can never say. Don't believe a word that comes out of her lying mouth. And let's work together during the trial to call her the "L" word without actually saying that. (Because we would never do that.)"

Continue reading "Polarizing the Case" »

• Note to my fellow Maryland attorneys: please stop filing silly lawsuits. Not every modicum of injustice needs to be righted through the judicial system. I promise.
• Max Kennerly gives an impassioned defense of injured plaintiffs' rights to "lawyer up." He writes: "There’s nothing wrong whatsoever about the Joneses hiring a lawyer or with that lawyer conducting his own investigation. We do the same day in and day out. So do all plaintiffs' firms that aren't just advertising shells. People have rights. People want to know what happened to their loved ones. Lawyers can help with both." Maybe Max has set up a little bit of a straw man but, still, he crushes that straw man.
• A judge has tossed out a lawsuit filed against Google by a woman who claimed her Google Maps walking directions led her to cross a highway. We have 311 million people in this country. A small minority of them are going to file dumb lawsuits. This has been happening in this country for over 300 years. Get over it already. Stop pretending the extreme is the norm.
• My blog posts on Haro v. Sebelius have gotten a lot of traffic. Turns out, lots of personal injury lawyers are dealing with Medicare liens. Who knew?

• John Bratt gives some thoughts from Houston, where he is camped out taking depositions in a brain injury case, on cross-examining a neurologist

Continue reading "10 Personal Injury Stories of the Week" »

• Should the defense be allowed ex parte access to your injured client's treating physician? Drug and Device says you should be able to talk to a doctor once you file a lawsuit. But why on earth does the doctor-patient privilege evaporate when you file a lawsuit? You want to talk to the doctor. Feel free. Note the doctor's deposition. It is not 1993 anymore. Doctor-patient really means something. No one should have to feel like their doctor is talking behind their back, particularly about a serious, or worse, embarrassing medical condition.
• I was a defense lawyer - 35th chair if you don't mind me bragging - 16 years ago in a mass tort involving this lawyer. I love how the disciplinary proceedings are at the Hyatt. How fun. They should do murder trials there.
• Bed Bath & Beyond has pulled from its shelves a product that a relative of a man injured by it says "should say 'lethal weapon'" on the package. (Via TortsProf Blog.) That whole registering your hands as a lethal weapon with the FBI is a wives' tale, by the way.
• A Wisconsin court says it was OK for one personal injury law firm to arrange, via Google AdWords, for its name to come up as a sponsored link when a user searched for the name of another personal injury firm, the latter being the largest in the state. Some hail the decision as a victory for small firms. I don't know what I think. I know competing campaigns do this to each other before elections.
• One-third of truck drivers may have sleep apnea, which can make them drowsy and cause accidents. Look, we need big, dangerous trucks on our highways. But could we do just a little more to make sure the trucks are safe and that the truck drivers belong behind the wheel? Can someone run some numbers on just how much tighter restrictions would have on the economy? I mean, we would all pay 5 cents more for cereal to save a few hundred lives. If you don't believe me, commission a poll.
• This video game would probably not work if the hero were a personal injury lawyer rather than a criminal defense lawyer.
• John Bratt gets a verdict in Baltimore City. I like how he whines about how busy is while pretending not to whine about how busy he is. He's having a baby soon. I can't believe the restraint in not throwing that in there.
• Eric Turkewitz contines to blog on the New York Law Blog about the much (Internet) ballyhooed crazy lawsuit against him and other bloggers in lieu of substance posts I can use or at least laugh about. I'm very tempted to ask for my money back for my subscription.
• Overlawyered puts out these roundups by the bushel load.

No, this isn't another polemic about how personal injury lawyers should blog or tweet. I don't care if you blog or tweet.

Social media has been a boon for two types of people: stalkers and defense lawyers. Personal injury lawyers are not using social media offensively in great measure. Not a lot of doctors are tweeting "I knew I should have counted the instruments before I closed on Mr. Smith. Alcohol makes me silly." And while you might hit the jackpot on occasion, it is unlikely the guy who rear-ended your client on I-83 tweeted out pictures of himself red-faced and hoisting a giant peach margarita at Water Street a half an hour before the accident.

More often than not, jury trials are about the credibility of our clients. Our clients' veracity or lack thereof is usually the fulcrum on which the outcome of a case hangs. Social media is a great opportunity for defendants to find - maybe out of content or maybe in context - evidence that contradicts our client's claim.

Continue reading "Social Media and Trial Prep" »

According to a recent Jury Verdict Research study over the last ten years, the average verdict in a serious knee injury case is 359,149. The median knee injury verdict is $114,299. Eight percent of verdicts were over $1,000,000.

How do you define serious? JVR defines it as knee dislocation, fractures, replacements, and aggravation of a preexisting knee injury. I certainly understand the first three categories; aggravation of a preexisting knee injury more subjective and a little harder to define.

Half of these cases are car accident lawsuits and the other half include every personal injury case under the sun. So it is hard to extract much meaning from this average serious knee injury verdict. But there are a lot of numbers in the report that break it down a little further.

Continue reading "Knee Injury Settlements and Verdicts" »

MGA Entertainment will recall 6,200 units of the Bratz Makeup Design Sketch Book. Bizarrely, this toy may be contaminated with Staphylococcus warneri and Staphylococcus intermedius. MGA is recalling products produced between November 5, 2010 and February 25, 2011.

From the FDA on these things you have never heard of in your life:

S. warneri rarely causes disease in humans. Wounds in the eye increase risk of infection and may result in symptoms such as pain and decreased visual acuity. S. intermedius is a very rare cause of infection in humans and risks are typically associated with veterinary exposures. For certain individuals, such as those with compromised immune systems, introduction into the eye by either microorganism may result in infection, which, if left untreated, may lead to sight-threatening complications.

So these are probably relatively low risk infections but, then again, what were the odds your kid's makeup design sketch book was contaminated in the first place?

Buried on MGA Entertainment's website is this information on the recall.

You are the Plaintiff's lawyer. You are bent on getting your case ready for trial from the moment you file a lawsuit. After you have almost completed discovery, you send out requests for admission to truly narrow the issues you will face at trial. Good job. You are more thorough than probably 99% of Maryland personal injury lawyers.

But ninety-nine percent of the time, you are going to get obstructionist answers to your requests for admission. Even good, reasonable defense lawyers file woefully inadequate responses. Two reasons for this: (1) No one wants to admit anything before trial (including, ironically, the things they have already admitted); and (2) there is little chance anyone is going to hold their feet to the fire.

The reason for the latter is simple: it is painfully tedious to file a motion to compel evasive answers so most personal injury lawyers don't. This is a sample motion to compel in a medical malpractice wrongful death case that Rod Gaston/John Bratt wrote recently. But, realistically, while you can steal some of the language, these types of motions to compel are too fact and answer specific to just use a template.

Continue reading "Motion to Compel: Requests for Admission" »

• Litigation over alleged improper webcam spying` by a Pennsylvania school district is ongoing. Fun sentence from a newly-filed complaint: "Plaintiff's father was told and believed that the light [on the webcam] meant the laptop was 'charging.'"
• New dram shop law in New Jersey. My thoughts here with a bonus gratuitous picture of attractive girls drinking.
• What effect will the new study on the potential danger of cell phones have on existing litigation? My guess? This study will result in a ton of lawsuits that will fail even if a link can be proven. Why? Even if plaintiffs' lawyers get to general causation - a big if - specific causation will be a bear.
• The former first lady of Illinois, a public relations professional, apparently advised a corporation that was being sued over its controversial weed killer to smear the county court system in which the case was being heard. (HT: Torts Prof Blog.)
• Is the American Medical Association "invent[ing] statistics" to support its position on medical malpractice reform?
• A West Pointer is suing Patti LaBelle, claiming that the star's bodyguards beat him up for no reason.
• My thoughts on how you can be unethical and grating and still succeed as a plaintiffs' lawyer.
• Baltimore lawyer gets arrested for stealing Baltimore County Judge Susan M. Souder's courtroom clerk's book. A book? Really? Please tell me the Baltimore Sun is just making up some stories because its readership is declining.
• This isn't injury law-related either. But it sure is weird. Why acorns?

The Daily Record has a story this week about Baltimore personal injury lawyer Steve Heisler's new advertising ploy: he's wrapped his Ford Expedition in an advertisement for his Baltimore firm and dubbed it The Injury Lawmobile. Danny Jacobs writes:

“Some lawyers say it goes over the line,” Heisler said, almost anticipating the question. “I say in this day and age, you’ve got to take advantage of every opportunity possible.”

I have never met Steve Heisler but I've talked to him on the phone. He actually was threatening to sue a non-law related business that I own without knowing that (1) I owned the business, and (2) his client was pretty much making up the facts. (I'm sure the latter was more persuasive than the former.)

Continue reading "Steve Heisler's Injury Lawmobile" »

Reminding everyone that there are still sewing machines out there, Janome America will recall 600 Elna sewing machines. The problem? Fire. The wires in the Elna sewing machine can short circuit and cause a fire. There is already one report of a fire.

Feel good story of the day.

And I love this tangent to the story:

And his name has attracted attention from visiting civil rights luminaries who have passed through the downtown New Orleans hotel where he has made a career. He spoke with Muhammad Ali and was once called upstairs to meet Rosa Parks.

Plessy recalls rushing in to find Parks sitting in a chair, and he knelt before her.

“She said, ‘Get up, boy. Your name is Plessy. You got work to do,’ ” he said.

Steve McConnell writes a post for the Drug and Device Lawyer Blog about an angry liar of a plaintiffs' lawyer who keeps hitting 8-figure verdicts and settlements.

How can this happen? Steve figures out the solution to this problem the way most of the vexing litigation challenges are solved. This lesson came during an invariably pandering lunch with an in-house counsel client who figured the paradox of why juries reward dirtball plaintiffs' lawyers with big verdicts. The answer is that an angry jury -- no matter the source of the anger -- is bad for the defense.

Their message in all of this for trial lawyers is clear: we should turn hundreds of years of psychology and trial advocacy on its head because some in-house counsel type - who may or may not have taken trial ad in law school - offers his solution during a suck up lunch.

I'm going to give Steve the benefit of the doubt here and assume he is acting as a double agent disseminating bad information for plaintiffs' lawyers. I could send the Drug and Device Law Blog the zillion of trial advocacy/trial strategy books my firm has bought over the last 10 years. (I could put the Drug and Device Law Daughter mentioned in the post though college with the money we have blown on these books.) No one has remotely suggested this is a wise tactic. Ever. This flies in the face of not only conventional wisdom but "new school" trial advocacy (see, for example, David Ball on controlling a witness without controlling a witness.) Making people not like you is just a bad idea.

Continue reading "How the Angry, Liar Plaintiffs' Lawyer Succeeds " »

"There is only one reliable tool for undermining defense experts," David Ball tells us in Damages 3.

What? There is only one? Really? This is a pretty big deal because, as any trial lawyer will tell you, cross-examination of defense experts can sometimes make or break a personal injury case. Even assuming this is a little bit of hyperbole, if the Dean of Damages thinks there is just one thing, it is worth making sure - at a minimum - you know what that one thing is.

So take a second. What do you think David Ball says is the only reliable tool to use when you cross-examine experts?

Continue reading "David Ball on Damages: Cross-Examination of Experts" »

Last week, I wrote a largely upbeat post about a U.S. District Court in Arizona opinion in Haro v. Sebelius as hopefully a harbinger for a less draconian system governing the logistics of dealing with Medicare/Medicaid liens in personal injury cases.

But the rain is getting a little heavier before the rainbow. Medicare/Medicaid has stopped sending Rights and Responsibility (RAR) and demand letters while trying to figure out just how to deal with Haro v. Sebelius. So trying to get Medicare on the phone for information is a challenge squared. My office spent two hours - literally on hold - last week. "On hold" is the operative phase - lien resolutions are at a standstill which is tough medicine for everyone.

Continue reading "Haro v. Sebelius Fallout: Good and Bad" »