Maryland Injury Lawyer Blog

Does Maryland Need a Dram Shop Law?

(Note: In a crazy coincidence, I wrote this blog post just moments before the Maryland Court of Special Appeals decided Troxel v. Iguana Cantina, a dram shop/premises liability case which reverses a Baltimore County trial court's finding of summary judgment for the defendants essentially because Maryland has no dram shop law. The Court of Special appeals reversed, calling the case a premises liability case. The court lays out the the sometimes hazy line between premises liability and a dram shop claim. At least this is what I think the opinion does I just glanced at the case, amazed by the coincidence. But, boy, this case looks teed up for the Maryland Court of Appeals to impose dram shop liability if that is where the court wants to go.)

The aptly named "Club Blaze", a Georgia strip club, was hit with a $1.75 million verdict in a wrongful death car accident case in Georgia.

These facts read like a preposterous hypothetical concocted by someone intent to prove that every state needs a dram shop law. A man went to a strip bar and managed to drink himself to a .398. Five times the legal limit in Georgia (and Maryland). I bet I have ever been half that drunk in my entire life. I also bet you he had a tab for one at the strip club, making it painfully obvious how he was getting home. So he left the strip club and did what is exactly par for the course when your BAC is .398: he killed himself and two young women, one of which left behind two small kids.

“Fatima did not die in vain. This case will bring awareness about the long-term effects of a drunk driving. This has devastated our family,” Bird's mother, Lisa Mitchell, said in the news release. “Fatima was my daughter and my friend. We honor her by using this award to send her children to college so they can become the best that they can be.”

I'm impressed this woman's mother is able to take such a high road. I would like to think that I could take this approach if it happened to me. I really do. But I think I would just be sad, angry and bitter every single day until I died.

This lawsuit fails on its face in Maryland. We don't have dram shop laws. So you can serve someone alcohol to the point where he is five times over the legal limit creating a time bomb that not only may go off but is actually likely to go off, and there is no claim. That woman's kids - a four and five year-old - would have to fend for themselves for their college tuition if this tragedy had happened in Maryland.

Continue reading "Wrongful Death Verdict: Justice You Would Not Get in Maryland" »

Governor O'Malley appointed seven new judges today:

• Judge Jeannie J. Hong (elevated to Baltimore City Circuit Court from District Court)
• Micheal Wilson Reed (from Peter T. Nicholl's office to Baltimore City Circuit Court)
• Judge Krystal Quinn Alves (Prince George's County Circuit Court)
• Judge Daneeka Varner Cotton (Prince George's County Circuit Court)
• Judge Hassan Ali-Amin (Prince George's County Circuit Court)
• John Paul Davey (from O’Malley, Miles, Nylen & Gilmore to Prince George's County Circuit Court)
• Master Jane Cairns Murray (Cecil County Circuit Court)

New Maryland Law This Week Will Require Insurance Companies to Disclose Their Insured's Policy Limits

Every personal injury attorney in Maryland has at some point become frustrated with an insurance company over game playing with respect to the their client's insurance policy. Under current Maryland law, an insurance company is not required to disclose its policy limits although such information is readily available in discovery after a lawsuit is filed. Some adjusters would give you enough information with a wink and a nod to figure it out. But most insurance adjusters just stand the party line like robots and say "Our policy is not to give out that information."

Injured clients understandably find this maddening: we tell them they are better off waiting until there is clarity on permanency before filing a lawsuit. But in some case, this means lying around in pain having no idea if you will ever be adequately compensated for your loss. It is maddening.

Starting on October 1, 2011, insurance companies will be required to disclose their policy limits if the following information is provided to them:

Continue reading "New Maryland Accident Law: Useful Change for Personal Injury Lawyers" »

Will Maryland Dramatically Change Juror Selection?

As I have written many times, I'm a big fan of David Ball's book "Damages 3." I've read the entire book more than once. I'm ready to take a quiz on the contents.

But I would fail the portions of that quiz on voir dire. It is hard for Maryland attorneys to get excited about voir dire because we know so little about the jurors we pick. At my last trial, I picked out during the juror roll call who I thought should be on the jury. After voir dire, not a single thing changed. (Maybe a little expectation bias? Sure. Still.)

Were my initial judgments based on useless stereotypes and facial expressions? Sure. But making a decision based on the fact that a prospective juror served on a criminal jury in 1993 or that his mother once had a fractured femur is similarly without foundation. It is like the woman (or man) who marries solely based on how attractive their spouse is criticizing someone who marries for money. Maryland trial lawyers just don't get the opportunity to use real information to evaluate potential jurors. So we are left with stereotypes and Malcolm Gladwell "blinks" to make our decisions.

The Maryland State Bar Association has a trial lawyer, Henry Dugan, who is in charge for a one year stint, and is now seeking uniformity in voir dire and is exploring the development of model voir dire instructions.

Continue reading "Is Voir Dire in Maryland About to Radically Change?" »

(Update: This is a done deal for $760 million.)

Nationwide Insurance, the eighth-largest passenger car insurance company in the country and the fourth largest in terms of market share in Maryland, is negotiating to buy Harleysville Mutual Insurance. Harleysville is a small time player in the Maryland passenger insurance but we do see a lot of them in truck accident and other commercial accident cases.

Here is the Bloomberg article on the potential merger and our analysis of dealing with Nationwide Insurance on car and truck claims in Maryland.

It is easier to file a lawsuit against a trucking company than a truck driver. This is true because human beings are likely to feel more comfortable placing blame on a big business than pinning it on one, possibility sympathetic, truck driver. We humans are folksy like that.

Moreover, juries are not told of the existence of insurance in truck accident cases, leaving the juries wondering who is footing the bill. Most juries get it but they are not entirely sure because it seems so unbelievably odd that no one mentions insurance. The collateral source rule is not understood by the general public.

I had a trial once in a truck accident case where we actually did very clearly point to the commercial defendant. He was a great guy, we tried to leave him out of it as much as possible. But after the verdict one juror was extremely concerned that the defendant driver - who left an "I don't have two nickels to rub together" impression - would have to pay out of his pocket after the verdict. "That nice Mr. So and So is not going to have to pay for this, is he?" The take home message for me: you have to make crystal clear the corporate entity is the one on the hook.

Respondeat superior gets you there. But it does not necessarily get you to the company's documents in discovery. They are key. Why? Well, at the risk of over generalizing, trucking companies are incompetently run. My apologies to every well run trucking company out there. But this is a low margin business. You make money by cutting corners. And it shows. So there is typically an obscene wealth of bad documents calling the names of plaintiffs' truck accident lawyers if you are looking for them. This leads you to negligent hiring, supervision, and entrustment claims.

On our website, we overview for attorneys handling truck accident cases how to pursue these legal theories:

• Respondeat Superior
• Negligent Hiring
• Negligent Supervision
• Negligent Entrustment

Who Should You Call as Your First Witness?

You give your opening statement. The defendant gives her opening. Who do you call as your first witness?

Too many plaintiffs' lawyers - particularly in car accident cases - spend too little time on this question, either because scheduling conveniences dictate the order or because they think the most important witness should be the first or last witness.

In his book "Damages 3", David Ball provides a list of four things you want from your first witness:

• Provide an Overview of the Case: Ball says the first witness should be someone who can tell a significant part of the overall story. Probably the ideal witness is someone who can establish what the defendant did and give some preview of the harm that was caused. In a truck accident case, for example, it would be the witness who saw both the truck accident and the immediate harm that was caused.
• Introduce the Harm: The first witness should be someone who saw the initial harm, assuming it is a case where the initial harm is substantial. Again, a witness on the scene usually meets this criteria.
• No Stake in the Outcome: Clearly, this does not include the spouse or even a close family member of the client. Realistically, you can't get this in every personal injury case. But the closer you can get to "no dog in the fight" the better.
• Cross-Proof: I think this is the most important of all: a witness that cannot be effectively crossed. I think this is the most important factor on this list. It is also the most difficult.

Continue reading "Sequence of Witnesses" »

Baltimore City's Lawyer Under Siege: Fairly?

• The Baltimore Sun yesterday did an article pretty much ripping apart the Housing Authority of Baltimore and one of its outside lawyers in Towson. Baltimore City's legal department looks inept and their defense lawyers appear corrupt. This is pretty much a win-win for everyone. But while this is certainly a good piece of investigative journalism (that we rarely see from the Baltimore Sun since its de facto death, announced during Season 4 of "The Wire"), the article creates a tangled web of corruption and incompetency when it really has only one juicy nugget. Clearly, Baltimore City's primary outside lead paint defense lawyer did something colossally stupid: he got hit with sanctions - a fine - by the court that was intended for him personally that he passed along to the City. Inexcusable. But the accused lawyer claims that he is the one who caught the mistake and amended the bill. If true, that would take a lot of sting out of the story. This claim - that the lawyer caught the mistake before anyone else - is never properly aired in the story; the reporter just cites the denial in the "I don't believe it but here is what they claim" kinda way without refuting the story. Then the story lobs more facts without context to make this lawyer and his law firm look awful: he charged 15 cents for photocopies (we don't charge our clients for this but it is a standard practice), he is billing $165 per hour for travel time (a low hourly rate and billing for travel is standard practice for defense lawyers), and the lawyers billed for showing up for a City Council hearing (they apparently actively participated). None of these things raise eyebrows in context. What bugs me most about the article is the notion that Baltimore City would be better served hiring in-house lawyers to defend lead paint cases. Certainly some types of claims - insurance companies successfully rely on in-house lawyers in most car accident cases - are well suited for the in-house model. Maybe Baltimore City's lead paint defense falls into this category, too. This is a complicated economic question. But this article provides no evidence to support this contention other than the mere fact that these lawyers are billing a rather low rate of $165 an hour. This is no evidence at all.
• A California couple is suing a county sheriff's office for $10 million, alleging that the sheriff advised them to check on a neighbor who made a 911 call. When the couple arrived at the scene of what turned out to be a double homicide, they were both stabbed.
• Chicago has banned the sale of crib bumper pads, which can cause suffocation.
• That student strip search case that went to the Supreme Court settled for $250,000.
• Kennerly writes about the Annie Le estate's wrongful death lawsuit against Yale University, which alleges that a climate of sexual harassment contributed to the graduate student's murder by a lab tech. The suit also alleges the university was negligent in hiring the tech, Raymond Clark III.
• I've seen clients injured by all manner of people, vehicles, and animals--but I've never filed suit for a client injured by an airborne turtle.
• A teenager in Massachusetts is threatening to sue over his teacher's Halloween prank last year, which involved walking into the classroom wearing a mask and holding what looked to be a chainsaw. The student says he was so scared that he ran, fell, and hurt his knee badly.
• Hypertechnicalities get in the way of efforts to try to limit the number of truck accident deaths in this country.

If you have the time, here are a few opinions of interest from the past few weeks for personal injury attorneys. If you don't have the time, I have tried to provide a quick summary of the relevant facts and law.

• Rosenfeld v. Oceania Cruises: This is the classic slip and fall case that, honestly, my firm never would have taken. Plaintiff slipped and fell on a wet ceramic surface while walking to the bathroom at the dinner buffet on an Oceania Cruises cruise ship. Worse still, the Plaintiff did not really remember at deposition what type of floor she was on when she fell. Plaintiff brought in an expert from Austria (seriously, Austria) who testified that the tile Plaintiff's lawyers claimed she slipped on had an inadequately low coefficient of friction. Really, just the worst imaginable case. Still, the 11th Circuit overturned the district court and found that this expert's opinion should survive a Daubert challenge. So this case goes to the jury in spite of its Swiss cheese holes.
• Fritch v. University of Toledo College of Medicine: This is a brachial plexus medical malpractice case. Plaintiff's expert testified that there were four possibilities as to what happened: (1) there was some traction on the nerves during surgery; (2) there was bleeding that no one saw (or couldn't see) and
  they pulled traction on the nerve; (3) they stretched the nerve by stretching the arm; and/or (4) a scalene block injection caused the brachial plexus. Plaintiff's doctor held up on direct examination, testifying that it was more likely than not that the injuries occurred because the surgeon negligently stretched the nerve in surgery from moving the arm or retracting on the retractor. The doctor's experts testified as to the other possibilities of the harm that were possible but did not say that any of those likely were the cause. Plaintiff appealed to the Ohio Supreme Court, arguing that the doctor's experts should not be able to testify about possible causes, only those that are more probable than not. The court rejected this claim. A Maryland appellate court would as well because there is no requirement that defendant's expert witness is required to state an alternative possible cause in terms of probability). Plaintiff also made a res ipsa claim which failed (although there are viable res ipsa malpractice claims in Maryland in very limited circumstances.)

Continue reading "Recent Personal Injury Opinions" »

Reams of studies on the relationship between driver fatigue and big rig truck accidents are just a Google click away. No one has seriously disputed this premise since federal regulators first limited commercial truck driver road time in 1940.

Continue reading "Truck Accident Safety Regulation Gets Flipped on Technicality" »

Pat Malone writes a guest blog on Don Keenan's Trial Blog arguing that confidential settlements undermine public safety and justice. His point is that confidential settlements make it harder for future plaintiffs to get evidence and information they need to bring out all of the facts about the defendant's conduct.

Specifically, Malone suggests:

Here’s one tip for avoiding last-minute pressure from the defense to cave into a secrecy agreement: Be proactive. Tell the defense counsel at some appropriate point – such as with any settlement demand letter or in a pre-mediation communication – that you will not agree to secrecy because of the ethical issues. This can be one item on a list of settlement conditions.

Pat Malone is an extremely well respected lawyer who not only gets great results for his client, but also graciously spends a lot of time helping other personal injury lawyers. I also agree with his premise: there is doubt doubt that confidential settlements make it harder for the next plaintiff. This also make the company less accountable, too, in the big picture.

But here's the problem: people who have been badly injured, even the best of people, have a hard time focusing on the global interests of plaintiffs everywhere when they are fighting and scrapping to be compensated for their injuries. And I have a hard time telling them that they should.

Let me give you a case in point. We recently settled a case with a Fortune 500 company. No discussion of confidentiality in the settlement discussions. You know what comes next. They send a release with a confidentiality clause. We balk. They say, "Okay, let's try the case."

Boy, I hate being bullied by big companies. I try hard not to take these things personally. But they were so arrogant in the way they delivered their ultimatum. They never would had the guts to play it through and I knew it. So we plotted a "file a motion to enforce the settlement and, in the off chance we lose, we try it" strategy. In angry detail. With our feathers up and blood boiling, we forgot, ah, that we have a client. So we call the client. She could not care less about confidentiality. She wants to execute the settlement and get her money.

So what do you do? I know what we did: we put our hurt pride on a shelf and sent the client the release.

Continue reading "Confidential Settlements" »

In the United States alone, approximately 581,000 knee replacement surgeries are performed each year. Getting a knee replacement is clearly a big deal: if you need a replacement, you have really run out of options with the knee problems that you are having. So knee replacement surgery is the last line of defense for patients suffering from extensive fractures, arthritis and/or osteoarthritis.

Continue reading "Zimmer Knee Replacement Problems" »

The Maryland Daily Record reports that eight people have applied for an empty seat on the Maryland Court of Appeals created by Judge Joseph F. Murphy Jr.'s retirement. Judge Murphy sits on the court for the 2nd Appellate Circuit, which includes Baltimore and Harford counties.

The applicants are:

• Andrew Howard Baida
• Honorable Kathleen Gallogly Cox
• Daniel Alan Friedman
• Honorable Paul William Grimm
• Jeffrey Donald Herschman
• Robert Neal McDonald
• Douglas R.M. Nazarian/a>
• Honorable Alexander Wright, Jr.

Is it politically correct to handicap this race? No? Let's do it anyway.

Continue reading "Court of Appeal of Maryland Opening" »

I love talking to jurors after a trial. You spend days looking a seven or eight people (6 plus alternates in Maryland) and you get to know them. Sort of. But, really, you have no clue. Because jurors are incredibly poker faced. If they are showing "how to avoid giving tells as to your emotions" videos in the jury assembly room, I would not be the least bit surprised.

I found this article on Roger Clemens' steroid trial interesting in this regard. These jurors sat through only two days of trial. Some attorneys say that jurors make up their minds during opening statements. I think that is completely wrong, particularly in a case like this where all of the core facts are in dispute. Still, jurors do start leaning in certain directions and develop in opening statements the lens from which they will view the witnesses at trial.

The Clemens trial is a classic example of a case where talking to the jurors has real value for the parties. What arguments were they buying? Even assuming the prosecution could prove its case, do you think it was a crime? What did you make of Mr. Clemens' demeanor during the trial? These are a few of the thousand different questions you would want to ask because these jurors make up the ultimate focus group - they actually make it past voir dire and onto the jury.

Continue reading "Talking to Jurors After a Trial" »

There are a number of claims percolating involving Multaq is a drug used for cardiac arrhythmias (irregular heartbeat). Multaq treats the physically and emotionally dangerous atrial fibrillation and atrial flutter. Multaq was hoped to be a safer drug but now there are serious concerns about Multaq's potential to cause serious kidney injuries.

We provide a very complete overview of Multaq liver damage lawsuits on our website.

For those of you who do not practice in Maryland or don't handle car accident cases, the Maryland Automobile Insurance Fund is a unique to our state creature. It is a state owned insurance company that insures high risk drivers. Most other states just require insurance companies to insure high risk drivers if they want to sell car insurance in their state. I guess, at least in 1972, Maryland was feeling a little libertarian and decided rather than force its bad drivers on other insurance companies, that it would just build its own. To my knowledge, a total number of zero states followed suit. (Someone correct me if I'm wrong.) Of course, once you build a state agency, there is an unwritten rule that you can't kill it.

Continue reading "Is MAIF Dying a Slow, Painful Death?" »

Medicare announced today that it has implemented a $300 threshold for some tort liability subrogation cases. This is huge news for accident lawyers who often get bogged down trying to reach a settlement in claims where there is some minor Medicare payment out there that "could" be related to the car accident.

Accordingly, Medicare will no longer claim subrogation in car accident and most other tort claims when:

1) the settlement (generally defined by Medicare as including settlement, judgment, award or other payment) is related to an alleged physical trauma-based incident (as opposed to an alleged exposure, ingestion or implantation);

2) the claimant does not have any additional settlements related to the same alleged incident; and

3) Medicare has not already issued a final demand.

The big news here is that Medicare may be starting to read the tea leaves and realizes that it has to make a less byzantine system for personal injury lawyers and one that is fair for victims.

• My original Haro v. Seblius post (the case that may have started Medicare/Accident Lawyer glasnost)
• Court rules on motion to enforce settlement when insurance company balks over lien issues
• Lien Resolution Services blog post
• ERISA liens and the "made whole" doctrine
• Five things you don't know and should know about personal injury accident liens

The Maryland Court of Special Appeals sided with State Farm over the Maryland Insurance Administration this morning in Washington v. State Farm.

The appeal rose from a consumer complaint who alleged to the Maryland Insurance Administration that State Farm failed to notify the consumer of an increase in his premium. The MIA found that State Farm did just that, violating Maryland insurance law.

The MIA's position was unambiguous: State Farm unilaterally increased the consumer's premium with no advance notice, violating Sections 12-106 and 27-614 of the Maryland Insurance Article. In its brief to the Court of Special Appeals, the MIA did not mince words, saying that State Farm engaged in "bait and switch" tactics to try to lock the consumer in at a price higher than he had already agreed to pay and that State Farm was trying to "distort this new [2006] statutory scheme." Harsh words for State Farm. I like it.

Continue reading "State Farm Wins Unilateral Premium Increase Case" »

• Do not let this happen to your client. Even better, try to spot these clients before you put the case into suit. In the four paragraph of this post, I write about how I thought this was about to happen to me in a mediation and it ended up just underscoring how honest my client was.
• A woman mauled by a dog has sued a 911 dispatcher and the town that employed him, alleging that the dispatcher canceled her ambulance when he realized it was his own dog that had attacked her.
• New York City has been smacked down for failure of discovery in injury suits it is defending.
• Kennerly senses trouble for the NFL players' brain damage suit.
• Consumers are suing Skechers for injuries allegedly sustained while wearing Shape-up sneakers--you know, the shoes that promise to tone your legs. HT: Overlawyered.
• A Virginia judge has almost halved the verdict handed to a man whose wife was killed by a concrete truck, calling the amount "grossly disproportionate." Side note: both the client and the lawyer will be sanctioned for withholding evidence--the information on the client's Facebook account.