Maryland Injury Lawyer Blog

The Daily Record unlocked the article our verdict in Baltimore City last week. You can find it here.

In DRD v. Freed, the Maryland Court of Appeals affirmed the constitutionality of the Maryland cap on noneconomic damages. I was a big Fred Flintstone fan. So when the court in Freed said the cap was "embedded in the bedrock of Maryland law" because it has been around for 17 years, the phrase stuck with me.

I was reminded of this after a recent trial where one juror asked, "Isn't there a cap on damages in Maryland?" When I confirmed there was, he turned to another juror (in a nice, familiar way actually) as if to say, "See, I told you."

As most of you know, a jury in Maryland is not told of the cap on noneconomic damages during the trial. If there is an award in excess of the cap, the reduction is made after the verdict.

Continue reading "Damage Caps and Jurors" »

A juror has been sentenced to community service after pleading guilty to "friending" the defendant on Facebook and discussing the case on the social media site.

The defendant in a car accident case was Facebook friended after the first day of trial. The Defendant played it straight and told her lawyer and the judge removed the juror.

Continue reading "Facebook Friending Juror Pleads Guilty" »

The history of "bad cholesterol" has had a checkered past. Bayer's cholesterol-reducing blockbuster Baycol allegedly caused more than 100 deaths. Bayer paid over $1 billion to settle the Baycol cases.

Now come Crestor and Zocor, two more widely prescribed prescription strength drugs designed to lower "bad cholesterol". Both drugs allegedly cause serious muscle and kidney problems, including the potentially fatal, muscle-destroying condition rhabdomyolysis. This blog post focuses on Zocor.

Zocor (simvastatin) is a statin drug used to treat a condition known as hypercholesterolemia (better known as high cholesterol) in people at risk of developing coronary artery disease.
Statins block the ability of the liver to produce cholesterol, so that the body takes any cholesterol it needs from food. It all sounds good in theory.

Zocor's big competitive advantage in the cholesterol drug wars? It was cheaper. A lot cheaper. The old, "you get what you pay for" cliché does not usually apply to drugs. The price is usually arrived at through an amalgamation of factors that don't involve comparative efficacy. But in this case, it might hold up: at least one study has found that 80mg of Zocor was not as effective at reducing heart risks compared to the same dose of Lipitor.

But let's get back to the point. In 2010, 2.1 million people in the United States were prescribed Zocor at a dose of 80mg. This dosage is particularly effective, in that it lowers LDL cholesterol by an additional 6% versus a 40mg dose. More drug, more cholesterol reduction. This makes sense.

Continue reading "Zocor Lawsuits" »

Saying you suffered a head injury in an accident is sort of like saying your nephew is an actor. He might be Will Smith but he also might be an understudy in a local dinner theater production.

Head injuries vary from headaches that resolve quickly to brain damage that destroys a life. The data on head injury verdicts does not leave a good impression of settlement value of head injury cases:

• Head Lacerations and Contusions: $10,016
• Concussions: $22,638
• Skull Fractures: $100,000
• Cranial Nerve Damage: $160,095
• Head and Skull Injuries, Overall: $14,034

These may well be the most misleading statistics I have every posted on this blog. Because these are median not average verdict statistics. Almost one-fourth of skull fracture cases result in a verdict over $1 million (which includes skull fractures that cause no real injury - we have seen those). Yet the median is only $100,000. I don't know what the average head injury verdict is - I can't find any statistics - but I'll bet you the average verdict in a case with a permanent head injury is over $1.5 million.

Personal injury lawyers put a lot of energy into writing what are called "demand letters" that set forth the injured victim's case and attach the medical records.

I sometimes use the phrase "demand" even though I don't like it. Inherently, battles with insurance companies in these cases are adversarial. So, because we already have enough friction, the wisdom of loading our terminology with demand is probably a bad idea. Really, if we are going to call it a demand, we should load it up so it is more like "Terms of Your Surrender If You Want to Avoid War." A better name that would be more conducive to settlements would be "Resolution Without Litigation Package."

Continue reading "Attorney Demand Letters" »

The FDA is currently investigating a possible association between the diabetes drug Actos (pioglitazone) and an increased risk of bladder cancer.

Actos is commonly prescribed to treat type 2 diabetes and works by increasing the body’s sensitivity to insulin. It is usually taken once a day by mouth. By all accounts, Actos helps treat type 2 diabetes, which is undoubtedly an awful disease. But there are other diabetes options where there is no suggestion of a link to cancer. The questions that doctors are going to have to answer are whether Actos is worth the risk of cancer and whether there are other less risky options available. Ultimately, juries are also going to be asked these questions, too. They will also have to dig into the other question: what did the manufacturer of Actos know or should it have known about the association between cancer and Actos and should they have issued a recall for Actos or at least provided a warning of the risk?

The bubbling concerns about Actos culminated in a safety announcement dated June 15, 2011, wherein the FDA warned the public that “use of the diabetes medication Actos (pioglitazone) for more than one year may be associated with an increased risk of bladder cancer.” Information about the potential risk will be added to the Warnings and Precautions label for medicines that contain Actos, and the corresponding patient Medication Guides will also be updated to reflect information on bladder cancer. In response to the FDA’s actions, the drug’s manufacturer (Takeda) has undertaken a 10-year observational study to assess the long-term risk of bladder cancer associated with the use of Actos.

Continue reading "Actos and Cancer" »

In what I would like to be a regular feature, I have provided a summary of opinions in the last week or so that are of interest to Maryland personal injury attorneys. Maryland opinions obviously are important but I think reading opinions from other jurisdictions also give a better understanding of the arguments and issues in areas of unsettled law in Maryland or wherever you are practicing. Half of the issues that come up in a case, during discovery or at trial, are issues of first impression. Reading case law formed elsewhere on personal injury issues helps lawyers not only understand the arguments they might want to bring but it also helps spot issues in the first place.

With that pious, self-referential speech now complete, here are the opinions:

• Knee prosthesis lawsuit survives summary judgment on appeal
• Bad faith claim in Alaska fails
• Nationwide Insurance also prevails in a bad faith claim that really never had a chance in the first place.
• Writing for the Maryland Court of Appeals, Judge Harrell affirmed Charles County Judge Amy J. Bragunier in Consolidated Waste Industries v. Standard Equipment Company. The opinion discusses subsequent remedial measures, the proper format of a verdict sheet and harmless error. (Plaintiff's law firm was Hecht & Associates; Miles & Stockbridge defended the case.)
• Once again, the Maryland Tort Claims Act is cited in letting a defendant off the hook regardless of the merits. The claim would have failed anyway. Still.
• Criminal case of relevance to all Maryland personal injury lawyers: what is the scope of attorney-client privilege?

• Eric Turkewitz talks about sanctions for frivolous suits.
• Is Johnson & Johnson trying to get hip-implant patients to sign away their legal rights before they fully understand them?
• Match.com will now screen for sex offenders, after a lawsuit by a woman who says she was sexually assaulted by a convicted repeat sex offender. This is a sad case. Should Match.com have this obligation? I really don't know.
• This isn't a large verdict, but it sure is interesting: a Tennessee woman was awarded $200,000 last week in compensation for being shackled while she was in labor.

Continue reading "Personal Injury Links" »

Our receptionist has gotten promoted and we need a new one. If you or someone you might know is interested, call Tiffany at 410-553-6000. Incredibly, we have four former receptionists who are still with our firm. So there is definitely room for growth.

Something interesting has come out of Alaska that does not involve Sarah Palin, oil, or snow. No, really, it's true.

In Whitney v. State Farm, the Plaintiff had a serious injury case that far exceeded State Farm's 100/300 policy. (Yeah, State Farm is writing those in Alaska too.) State Farm tendered the policy limits. Plaintiff's counsel had an admirable but goofy theory as to why there were stacking policies on the risk where UM coverage applied.

Plaintiff's accident lawyer then did something very interesting. He settled the case with the Defendant far in excess of the policy limits. This gave him a chance to skip a trial and immediately test his theory, bringing a bad faith claim under Alaska's version of a use plaintiff. I'm sure he had some side deal with Plaintiff on collecting the settlement. I'm amazed the defendant's State Farm lawyer - whose bills are being paid by State Farm - had the guts to craft a settlement that was in the client's best interests but not State Farm's.

I love the creativity. But it fails. As a consolation prize, the Alaska Supreme Court left open the property damage claim and claims related to State Farm's duty to timely settle. The latter sounds like a dead loser in this case and the former is a lousy property damage claim.

You can read the opinion here.

The Maryland Association for Justice's Auto Negligence Seminar will take place on Friday, November 11, 2011 (Veterans Day) in Columbia at the DoubleTree Hotel (near the intersection of Routes 175 & 29). A registration form will be available soon but if you want to register online please use this link:

The current list of topics and speakers is as follows:

• Mediation - Tips for Plaintiff Attorneys: : Judge Howard S. Chasanow, Retired Maryland Court of Appeals (also served on the District and Circuit Courts in Prince George's County), has been a full-time mediator for over 10 years.
• Failure to Act in Good Faith Claims from MIA to Circuit Court: Rodney M. Gaston (Miller & Zois) will discuss how to set-up & present a MIA claim and pitfalls and minefields in the Circuit Court
• Financial Discovery of Defense Experts post Falik v. Hornage case: John B. Bratt (Miller & Zois) argued the case before the Maryland Court of Appeals and will provide a roadmap for obtaining financial discovery of defense experts

The moderators are Amy M. Orsi and Eric N. Schloss.

Additional topics and speakers will be announced in the coming days and weeks. If you are a plaintiffs' lawyer and your are not a member of MAJ... well, just join MAJ today.

If you read and like this blog, could you please nominate it for a the ABA Top 100 list? This is the nominating form. Thanks.

The Drug and Device Law Blog writes whines about inadequate fact sheets in the Yaz Yasmin MDL.

Plaintiff Fact Sheets are basically questionnaires that serve as interrogatories in mass tort cases. In the Yaz/Yasmin cases and other MDLs, they are really agreed upon case specific interrogatories. If nothing else, fact sheets cut through the bickering of what defendants may legitimately ask. They could call them "agreed upon interrogatories" and it would mean the same thing.

Echoing this otherwise excellent Drug and Device Law Blog's trite and tired leitmotif - those lazy, greedy plaintiffs' lawyers! — the post gripes:

The goal for the other side in MDL litigation is to file as many complaints as possible and after that do as little work as possible – while waiting around for the almost inevitable settlement, be it large or small. Thus, MDL plaintiffs want only one-way discovery. Their side gets to discover the living daylights out of our clients, and drive up our expenses to the maximum extent possible. But our side doesn’t get anything more than pieces of paper called “questionnaires” or “fact sheets.”

The reality is that when a plaintiff does provide meaningful responses, mass tort defendants applaud the effort by beating them down over every last detail. And, oh my, if plaintiff's fact sheet triggers something like defendant has to provide shipping records or any other obligation, it will NEVER be good enough. "Dear Counsel, your Plaintiff's Fact Sheet is incomplete because you did not tell us who your doctor was in the eighth grade when you broke your leg."

Continue reading "Yaz Lawsuits and Plaintiff Fact Sheets" »

The first lawsuit has been filed over the Indiana State Fair stage collapse that killed six people last week. The suit claims that flimsy stage construction and failure to heed warnings of “severe thunder storms” caused the injuries and deaths that ensued.

Ultimately, and I have written this before, I think it is hard to gather all of the facts and figure out all of the appropriate defendants in a case like this within a week. Besides getting some good publicity for the lawyers who file the case, I think there is rarely wisdom in racing to the courthouse steps after an accident.

The Maryland Daily Record writes an article about the case Laura Zois and I tried last week and won a $537,000 verdict for our client (subscription required). Cincinnati Insurance, who insured the defendant, offered nothing over the course of discovery but made a $150,000 offer before trial.

Speaking of subscription required, Rod Gaston's $2.5 million wrongful death medical malpractice verdict two weeks ago was the subject of a story in LawyersUSA.

While preparing our client to testify at trial on Tuesday, I had a hard time getting her not to mention that she had received workers' compensation benefits. So many of her choices were pushed by what workers' comp would or wouldn't do. When you are coaching someone to be as honest as possible, it's hard. Tell the truth about EVERYTHING... oh, but not this.

Jurors are not told about the existence of insurance, either health insurance or liability insurance. There is good reason for this in theory: jurors are more likely to increase their award if they don't know an insurance company is behind the defendant and they also are not going to award medical bills that they assume were paid by insurance. They are also not told that health insurance companies and workers' compensation insurers expect to be paid back if the jury awards plaintiff compensation.

Thankfully, our client did well - no mention of the workers' compensation insurance that paid her medical bills and lost wages. Then the president of the defendant company testifies and promptly blurts out that his company has had few accidents which is why their insurance premiums are so low. For good measure, he repeats himself. One of the jurors later told us that he remembered that he let insurance slip but quickly added, "We figured there was insurance." Another juror chimed in, "This case was more like a workers' compensation claim." This figured in their math too. They pretty much figured she was not going to pay $151,000 in medical bills back to her doctors although they awarded it anyway because good jurors follow the law.

Continue reading "Jurors and Insurance" »

We got a good verdict in a malpractice case last week. You know this because I've now told you three times. Sorry.

But we got a comment from one of the jurors that I think is very interesting.

I published on the Maryland Medical Malpractice Attorney Blog today a client testimonial that gives our firm great pride.

• Don't fear the jury.
• This latest bacterial outbreak is not Cargill's first.
• Who's liable for the car accident when the car has no one behind the wheel?
• If the allegations are true, this guy's picture should be next to the dictionary definition of "sexual harassment." HT: Legal Blog Watch.
• An Ohio appeals court says that the state law making doctors' apologies to patients inadmissible in malpractice does not apply to actual admissions of responsibility, just to expressions of sympathy. "I'm sorry for your loss" is covered, but "Oops, my bad" isn't. Seems sensible to me.
• A West Virginia jury has awarded $91.5 million in a nursing home wrongful death case.
• An L.A. jury has ordered Philip Morris to pay $12.8 million to the son of a smoker who died from cancer.
• A Florida man won a $21.8 million verdict against the estate of a driver who struck and paralyzed him while he was riding his motorcycle.

Hello Blog. I'm back.

I just got back from vacation and then a trial in Baltimore City. Laura Zois and I won a $537,000 verdict for our client in a slip and fall case. It does not match the $2.5 million verdict awarded to our clients last week in Rod Gaston's case (see Daily Record article) but it is still a good 10 days for Miller & Zois clients.

I'll write more about our trial later and try to put some of the samples from the trial in the help center on our website. We may even order the transcript to post on line because it includes so much of the David Ball/Don Keenan reptile themes that I have talked about on this blog.

This was a really fun case to try and it reminds me of why we do what we do. But I'm glad to be back to my usual routine which includes regularly posting to this blog.

I promised in my last post to write more about our $2.5 million medical malpractice verdict on Monday, a post I will enjoy writing. But preparations for trial on Monday - the worst ankle break I have every seen suffered by maybe the sweetest client I have every taken to trial - has trumped this blog this week. But I will be back shortly...

Our clients were awarded $2.5 million in a Montgomery County wrongful death medical malpractice case earlier tonight.

It is late. I'll have more thoughts tomorrow including my thoughts on just how seriously this jury took the idea of public service. Just a great story. In the meantime, congratulations to our absolutely wonderful clients who tragically lost their husband/father, Rod Gaston who worked up and tried the case for us, and to the lawyer who referred the case to us.

These are the Alexa statistics for the Maryland Injury Lawyer Blog. Avvo has a ranking of lawyer blogs - based on Alexa statistics.

There are only a few personal injury blogs ahead of the Maryland Injury Lawyer Blog. But using page views or unique visitors is a poor indicator for this blog anyway. If it was, you would see more "What do you do when you are in an accident?" posts.

Instead, the purpose of this blog is to attract potential accident, malpractice and product liability lawyers looking for co-counsel, consistent with our firm's strategy of teaming up with lawyers to co-counsel with on serious personal injury cases.

The plan, then, to spell it out, is to continue to build a readership base of personal injury and other lawyers. (To do this, frankly, I need to keep posts like this to a minimum.) The plan is to give lawyers news and information they can use while underscoring our experience in catastrophic or wrongful death cases. So when you are looking for co-counsel to help you maximize the value of your client's case (and frankly to maximize your own fee), you call Miller & Zois.

• Our co-counsel relationship with referring lawyers
• Firm overview (who we are and the kind of cases we are taking)

John Bratt provides some cross examination tips on the Baltimore Injury Lawyer Blog.

• My commentary on David Ball's book on Damages on cross examination of defense experts
• Sample cross examinations of mine and other lawyers at Miller & Zois - go to the middle of the page on this link
• An outline for cross examining defendant's medical expert

Virginia is making great strides in cutting the number of drunk driving accidents. The path to success is not a secret: aggressive enforcement.

Virginia officials also cite increased driver education. This is bunk and everyone knows it. Government officials must get performance incentives for citing education as the cure for everything.

Malcolm Gladwell's book The Tipping Point underscores how bad this paradigm fails elsewhere. Gladwell cites a study that shows that the average smoker overestimates how many years smoking will take off their lives. Smokers think it will cost them 9 years when the real answer is probably more like 6. Paradoxically, education may be making these people less risk averse to smoking.

Continue reading "How and How Not to Reduce Drunk Driving Accidents" »

I was surprised at the media response to University of Baltimore School of Law Dean Phillip J. Closius' resignation/firing last week. The story was on the front page of the Baltimore Sun on Saturday. My blog post on this on Friday received a tremendous amount of traffic.

I really believe that Dean Closius and University of Baltimore School President Robert L. Bogomolny ought to sit down - with a mediator - and try to resolve their differences. Obviously, there was tension between these two men that ran deep. But they both want what's best for the law school. They just need to get on the same page.

If Dean Closius returns as Dean to the University of Baltimore Law School, Miller & Zois will donate $10,000 to the school. I'm hoping other Closius supporters make a similar pledge.

One important point here. Since Dean Closius arrived at UB in 2007, I have met him a total of zero times. My fault, not his. I've got three kids: I'm teaching my classes and getting out of there pretty quickly. My point is that I'm not in the tank for Dean Closius personally. I'm just in the tank for the objective: quantifiable improvements we have seen at this law school over the last four years.