Maryland Injury Lawyer Blog

New Maryland Slip and Fall Law

Three years ago, after the Maryland Court of Appeals denied certiorari in Allen v. Marriott Worldwide, our law firm pretty much stopped taking snow and ice slip and falls. Maryland appellate courts had been battering bad weather slip and fall plaintiffs over the head with the assumption of the risk doctrine. We distilled this law to be that if you are not running out of a burning building, you knew there was a possibility that you might slip and fall if there was an indication the weather was bad and you had a choice. Assumption of the risk became metaphysical "you had a choice, didn't you?" that killed every case.

To my surprise, Maryland law took a clear, deliberate and unanimous step back from this insane abyss last week in Poole v. Coakley Williams Construction.

The Plaintiff in this case claims alleged that he slipped and fell on black ice in a parking lot in Montgomery County behind his place of employment. Plaintiff blamed the defendant who was at the site performing construction work for causing the black ice to form, and that there had been a stream of water that way for some time. In fact, Plaintiff thought it was safe because he had walked through that same stream a week before without incident. So it is as good as an ice slip and fall case as you can get, because it is more than "you should have put salt down or shoveled the parking lot" case. Still, regardless of the injuries, we would not have taken this case post-Allen because it is still - on the bizarro world level the court used in Allen - technical assumption of the risk. The summary judgment is easy, just ask the ol' "you knew there was water and you knew water can get cold, right?" setup.

Continue reading "Maryland Snow and Ice Slip and Fall Cases: There Is a Pulse" »

LexisNexis is starting a New Top 25 Tort Blogs. The Maryland Injury Lawyer Blog is on the list of nominees.

These awards are silly popularity contests that have nothing to do with the quality personal injury law blogs. The only true measure of this blog is the devotion of its readers, defined by the number number and frequency of visits by other personal injury lawyers. This is all just a silly Nexis-Lexis marketing ploy.

(It may also be that this is all sanctimonious dribble, I'm in denial, and I really want to make this Lexis-Nexis top tort blogs list. If you subscribe to this theory, please "vote" for the Maryland Injury Lawyer Blog by adding a comment in the box at the bottom of this page.)

New lead paint decision from Maryland's high court

The Maryland Court of Appeals issued a game changing lead paint decision today, declaring unconstitutional an awful Maryland law that immunizes most Maryland landlords who rent properties that cause children brain injuries from lead pain.

Before I get to that, a little background. In the late '90s, before I saw the light and became a Plaintiffs' lawyer, I defended a number of lead paint cases in Baltimore City. These were the halcyon days for lead paint personal injury lawyers in Baltimore.

Many lead paint lawyers in Baltimore had such a good thing going that they didn't bother to focus on the details, you just filed your lawsuit, then reached a settlement using one or two experts that said virtually the same thing in every case. Printing money in your basement would be less profitable. Plaintiffs' lawyers rarely bothered to make a claim for economic damages, for future loss of income from their brain injuries. (Now, every lawyer with a lead paint case does this.)

Lawyers who had a big inventory of lead paint cases had plenty of time to decide which cases to file. There was tons of time because the plaintiffs were children that often did not have imminent statute of limitations issues. So, they filed the ones with the highest lead levels first. (The lead level in this new case was less than 25. There were very few cases in the '90s that had a level that low.) As a result, you had all of these great plaintiffs' lead paint cases going to trial in Baltimore City. Plaintiffs' lawyers had two other things going for them: (1) insurance companies had yet to put in lead paint exclusions, and (2) most cases in suit were not yet impacted by the 1994 Reduction of Lead Paint in Housing Act.

The Act slowed down, as was intended, the furious pace of lead paint lawsuits. The stated purpose of the Act was to "reduce the incidence of childhood lead poisoning, while maintaining the stock of available affordable rental housing.” Strangely not mentioned purpose: protecting landlords who were needlessly exposing children to brain injuries from lead paint, which is exactly what it did.

This Act was a stunning victory of landlord lobbyist. The law completely immunized from a lead paid lawsuit negligent defendants if they registered their property with the state and offered payments of $17,000 to children injured by lead poisoning. "Sorry your child has lost 12 IQ points from lead paint that would could have easily remedied. Here's is $17,000 when she turns 18. We are square, right?"

But, today, an incredible two-and-a-half years later, and almost 10 years after the lawsuit in the case was filed, a unanimous Maryland Court of Appeals struck down on constitutional grounds the 1994 Lead Paint Act to the extent that it immunized landlords from liability if they allow chipping or peeling lead paint from causing brain injuries to children. “For a child who is found to be permanently brain damaged from ingesting lead paint, proximately caused by the landlord’s negligence, the maximum amount of compensation under a qualified offer is minuscule,” retired Judge John C. Eldridge wrote in the court's opinion. Agreed.

Continue reading "Maryland Lead Paint Law: A Game Changer" »

• Medical malpractice caps do not lower healthcare costs. No kidding? (Sarcasm.)
• How responsible should a property owner be for wild animals on the land?
• Will we start seeing more bedbug-based lawsuits in Baltimore? The problem is, of course, taking a case to a jury with experts and getting a $40,000 verdict is probably not getting enough juice for the squeeze for the plaintiffs' lawyers or the clients.
• Toys 'R Us has been slapped with a $20 million jury verdict in a case involving a woman killed when an inflatable pool slide partially collapsed. It's a pretty horrific story.
• The details just piled up to make this New Jersey auto accident case end in a pretty big verdict, $3 million: the victim was killed. By an off-duty state trooper. Whose blood-alcohol level was twice the legal limit. And who has already pleased guilty to drunken driving and vehicular homicide.
• Aggrieved because the movie you paid good, hard-earned money for was nothing like you thought it would be? Crazy, right? These lawsuits make the whole judical system seem broken. It's not. But these are the snapshots some people are getting.

For years, we have been fine tuning our interrogatories and requests for production of documents in truck accident cases. I recently got an email from a lawyer handling a truck accident case who told me he had used interrogatories from our website. I think we put those interrogatories up in 2004, and have learned a lot since then from experience as to exactly what we are looking for in our first round of discovery in these cases. These are the latest versions:

• Interrogatories to Truck Driver
• Interrogatories to Truck Owner
• Request for Production of Documents to Truck Driver
• Requests for Production of Document to Owner

For the interrogatories, we have added subheadings that summarize the gist of the interrogatory request. If you are looking to rephrase specific interrogatories already in your arsenal, this will make the process of sifting through what you need a lot easier. Of course, you can just cut and paste our discovery requests. I always like it when a defense lawyer tells me that they just received "Miller & Zois discovery." But I think if you have given so little thought to truck accident cases that you have not drafted meaningful discovery on your own, you might want to think of referring your case to a truck accident lawyer who regularly handles these cases. Gee, like maybe us.

Is there a locality rule in Maryland malpractice claims?

Medical malpractice lawyers representing doctors famously prefer to elevate form over substance and tactics over strategy. This is not partisan. It is fact. The doctors' malpractice attorneys really don't disagree. They would call it taking advantage of the grab bag of opportunities to fight the details that the law and inexperienced malpractice lawyers provide. It is called fighting aggressively for their clients, right?

Fair enough. But the fact remains that at least as a practical matter, doctors' attorneys try to use technicalities at a ratio of 20-1 to patients' lawyers. Sure, I'm making that up. But it is probably something like that, if not higher.

Consistent with this "tactics over strategy" worldview, forests in Maryland have been lost by defense lawyers' micro interpretations of Maryland's Health Claims Arbitration Act (Maryland Courts & Judicial Proceedings, 3-2A-01-3-2A-09), distorting any semblance of what was actually contemplated by the Maryland legislature.

In Willison v. Pandey, an opinion decided last week in the U.S. District Court of Maryland, the doctor's malpractice lawyers faithlessly upheld this tradition, attempted to exclude Plaintiff's medical expert under the strict locality rule, arguing that a doctor has to know the local standard of care to offer testimony. The doctors lawyers relying upon language in the health claims statute that a medical malpractice expert must give testimony that the care given by the defendant doctor "is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities" at the time of the alleged medical malpractice. In this case, the Plaintiff's medical expert was from New York testifying about the breach of the standard of care of a Cumberland, Maryland urologist. Clearly, he knew little about the practice of medicine in western Maryland.

Continue reading "Maryland Medical Malpractice: New Opinion on Locality Rule" »

The Georgia Criminal Appellate Blog writes about the concern that his clients will "over-learn" the lesson of Amanda Knox's successful appeal:

For the criminal trial lawyer, the Casey Anthony verdict was the result that made it difficult to counsel clients on whether to accept a negotiated plea rather than risk a trial against an overwhelming case. Several colleagues have told me that clients have balked in the face of solid legal advice, reasoning “that girl in Florida got off.” Amanda Knox is, I fear, the appellate lawyer’s Casey Anthony. It does not matter that it’s a different legal system in a foreign country. The comparisons are coming. It is time to prepare with some key points when you face the inevitable comparisons.

How do personal injury victims process Amanda Knox's win on appeal?

This concern is, I think, equally applicable for clients of malpractice and accident lawyers. Amanda Knox, from a distance, represents what everyone wants in the appellate process: you keep appealing and appealing until you win and that appellate win is final. Sometimes, not just in law but anything, getting a little information about how the sausage is made can cause more harm than good because you lack context. There is, as always, a good cliché on point: a little information can be more dangerous than no information (or something like that).

(This is my problem in the stock market. I majored in finance in college so I think I know what I'm doing. But I get myself in trouble making stupid bets relying on something I heard in Investment Analysis my junior year in college.)

The reality is that personal injury appeals are hard for both sides because most of the rulings from the trial judge to which plaintiffs' lawyers take exception are evidentiary issue where the standard on appeal is abuse of discretion. That's a tough road to travel after a defense verdict. We have done it successfully but most personal injury trials do not end with a quality appealable issue.

Continue reading "Amanda Knox: Impact on Personal Injury Lawyers Explaining Risk to Clients" »

Twitter is giddy about a Baltimore Sun report that a medical malpractice defense law firm lost a portable hard drive containing medical records for 161 stent patients in the lawsuit against cardiologist Dr. Mark G. Midei for alleged malpractice at St. Joseph Medical Center in Towson. Apparently, an employee of the law firm Baxter, Baker, Sidle, Conn & Jones left the hard drive on the Baltimore light rail. It is a good story anyway but this one is extra juicy because it involves the most prolific malpractice lawsuit in Baltimore. So it is the perfect storm. The lawyers at Baxter, Baker must have muttered a thousand times by now: why this case of all cases?

The irony of all of this bad publicity for Baxter, Baker - which is a very good law firm - is that they did what their malpractice clients rarely do: they owned up to their mistakes. The law firm notified St. Joseph - its hospital client - and the malpractice insurer of the hard drive loss shortly after the loss and acted fairly quickly to let the patients know of the potential invasion of their privacy. Ultimately, while it is extremely unfortunate that patients who have already suffered have to fear this potential invasion of their privacy, the good news is that this is very unlikely to cause anyone harm. There are probably far greater privacy risks for these patients out there. (Where is the defendant's medical expert keeping these records?) The way Baxter, Baker could really screw up would be in the cover-up which they wisely did not attempt.

Continue reading "Baltimore Law Firm Loses Medical Records" »

I read four personal injury related appellate opinions that were published last week that I think are worth reading:

Thibodeaux v. Trahan: Like most personal injury lawyers, I have been hit with post-trial remitter motions from defense attorneys claiming that the jury’s verdict was unreasonably high. But no plaintiff’s lawyer is silly enough to file a post-trial motion for additur to raise the verdict because it is never going to work. I think federal law prohibits additur in federal court jury awards.
Someone forgot to tell the Plaintiff’s lawyer in this rear-end accident bus case in Louisiana who appealed the trial court’s failure to award future pain and suffering. The appellate court changed not only the comparative negligence allocation but increased the plaintiff’s damages, finding that the trial court failed to award enough damages.

Crazy, right? The facts were unique. This was a bench trial where the trial judge specifically found that the Plaintiff will need future surgery for her knee but did not award damages. Juries, I guess, get a pass on inconsistencies in their verdicts because it could be the result of compromise. But a trial judge deciding damages cannot form a compromise in her own mind and has to make an award consistent with the court’s findings. (Actually, I read this malpractice opinion that was decided last Thursday that makes a similar point.)

Louisiana law allows the appellate court to increase the award to the lowest amount reasonably within the trier of fact’s discretion. I don’t think Maryland law prohibits additur but there is no recorded case in Maryland where the trial court increased a damage award. I don’t know why, if we have remitter we should have additur under Goose v. Gander.

Osorio v. One World Technologies: The First Circuit affirmed a $ 1.5 million award in a product liability case in Massachusetts involving a defectively designed power saw that Plaintiff’s employer bought at Home Depot.

Plaintiff’s hand injury occurred on a construction site while operating a $179 Ryobi Model BTS15 benchtop table saw bought at Home Depot. While cutting a piece of wood, Plaintiff’s left hand slipped and went into the saw’s blade.

Plaintiff’s attorney put up a witness at trial who invented a device that allows a table saw to sense when the blade comes into contact with the user’s body and stops the blade from spinning. This is very cool, of course, but none of the major table saw manufacturers bought the invention.

Plaintiff’s theory as to why? Basically an Oliver Stoneian conspiracy theory that the manufacturers' failure to incorporate this invention is because of a collective understanding that if any of them adopts the technology, then the others will face heightened liability exposure for not following suit.

Honestly, I’m not sure that entirely even makes sense and I really doubt that is what happened. The messenger is a bit suspect, too: the guy who failed to sell table saw manufacturers on his technology.

Continue reading "Four Personal Injury Opinions From Last Week You Should Read" »

• Cantaloupes are being recalled like crazy. Who would have thought?
• Scott Distasio talks about oversight of Florida nursing homes.
• These folks really want to reduce truck accidents. Or this is a shameless PR stunt. Either way, it is all good.
• List of things I should know but didn't know: Pennsylvania lawyers can't ask the jury for a specific amount of damages. Who knew? (Max Kennerly)
• The CDC says sports-related ER visits for children for brain injuries are way up. I think we are just becoming more aware.
• More on cross-examination of the usual IME suspects.
• More dram shop commentary after an awful case in Georgia.
• The Pop Tort has a reality check on medical malpractice claims and liability insurance rates.
• Remember when Crowell & Moring implied that Appalachia was rife with inbreeding? A law professor has filed an ethics complaint against the firm for writing that consanguinity, not the effects of mountaintop mining, could be causing birth defects in the region.
• Check out TortsProf's list of the top ten recent tort/product liability law review articles.

Strategies for Truck Accident Cases: Excessive or Improperly Distributed Cargo

A defense lawyer who regularly defends truck accident cases was telling me recently how many plaintiffs' lawyers rarely ask the questions that really scare him in deposition or in discovery. Car accident lawyers figure, "Hey, it is a truck accident. A truck accident is just a big car, right? It is really not. There are too many nuances to truck accident cases.

One typical miss: inquiry as to how much the truck weighed. Some estimate that 30 percent of tractor trailers and dump trucks are overweight. I'm guessing that is high. But truck accident cases disproportionately involve overweight trucks not only because heavy trucks cause more accidents because they are less safe, but also because truck drivers and companies that are willing to go overweight are similarly willing to take other chances with fatigued drivers and improperly maintained trucks.

Continue reading "Truck Accident Claim Tactics: How Much Does the Truck Weigh?" »