Maryland Injury Lawyer Blog

Frank Kratovil, a former congressman of Maryland's 1st District, was appointed by Governor O'Malley to the District Court for Queen Anne’s County. Kratovil, a University of Baltimore School of Law graduate, was elected to Congress in 2008 but was unfortunately swept up in the Republican tidal wave of 2010 and lost to Andy Harris. Kratovil will make a great judge. Queen Anne's County is lucky to have him.

In all of the hubbub about Robert McDonald's selection to the Maryland Court of Appeals, I neglected to mention the new Circuit Court judges:

• Baltimore County District Judge Nancy Purpura (Baltimore County)
• William Rogers Nicklas Jr., a personal injury lawyer (Frederick County)
• Harford County prosecutor Melba Elizabeth Bowen (Harford County)
• Howard County Court Master William Vincent Tucker (Howard County)
• David Wylie Densford, who I think is a criminal lawyer (St. Mary's County Circuit Court).
• Anne Korbel Albright, a criminal and family lawyer (Montgomery County)
• Gary E. Blair, former chief of criminal appeals in the state attorney general's office (Montgomery County)
• Justin James King, deputy chief of litigation in the Baltimore City (Baltimore County)

The Maryland Daily Record is reporting that Governor O’Malley today named Robert N. “Bob” McDonald to the Maryland Court of Appeals. Soon to be Judge McDonald is the chief counsel of the Opinions, Advice and Legislation Division in the Office of the Maryland Attorney General where he has been for 15 years.

McDonald writes or edits all formal opinions of the Attorney General’s Office. I don't have occasion to read many Attorney General opinions and, even if I did, I don't think it would be a great lens to predict how McDonald will vote. Ultimately, the AG is making the call on those opinions.

There are a lot of 4-3 decisions by the Court of Appeals. I have no idea how this will impact that court and I doubt many people do.

I had this all wrong. I thought for sure O'Malley would pick Judge Grimm. I even gave odds on it. If he did not pick Grimm, I thought he would pick someone very young. I don't know how old McDonald is, but he graduated law school (from Harvard) in 1977. I also would have bet money that the choice would be a judge. Three strikes. (The take home lesson: don't handicap when you have no idea what you are talking about.)

O’Malley also elevated Baltimore City Circuit Court Judge Stuart Ross Berger to the intermediate Court of Special Appeals, succeeding Ellen L. Hollander, who took a seat on the U.S. District Court in Baltimore. This selection is not a surprise.

This is a time of year for top 10 lists. So I have put together a list of the top 10 opinions of interest to personal injury lawyer from the Maryland Court of Appeals and the Maryland Court of Special Appeals and from the federal bench:

• Poole v. Coakley Williams Construction: the court softens its position on snow and ice slip and falls.
• Jackson v. Dackman Company: court strikes 1994 Reduction of Lead Paint in Housing Act provisions that limit recoveries to children who suffer brain damage from lead paint
• Wantz v. Afzal: court reverses trial court's ruling to strike all three of plaintiffs' experts in a medical malpractice case in Frederick County
• Griffin v. State: not a personal injury case but the court tackles - not for the last time - social media evidence at trial which is going to be a battlefield in personal injury cases
• Multi v. University of Maryland Medical Systems: dealing with the Serbian Bog of use plaintiff in a medical malpractice case in Baltimore City
• Robertson v. Luliano: removal before service in a medical malpractice case in Baltimore City
• Willever v. United States: Judge Roger W. Titus rules that Maryland health claims arbitration rules do not apply in Maryland medical malpractice cases in federal court
• Consolidated Waste v. Standard Equipment: a small, tiny step in the journey toward dram shop liability
• Fletcher v. Pizza Hut: 4th Circuit draws the line on superseding causes in a car accident case
• Janay v. Wilkowsky: Maryland high court reverses Court of Special Appeals in finding flawed jury instruction should give lead paint plaintiff a new trial.

If you think I have left out some important opinions, let me know.

• Are hybrid car drivers better off in case of accident?
• "Still need proof that the U.S. Supreme Court's decision is going to have far-reaching effects in the world of mass torts and consumer class actions?"
• If the same client retains you to sue over a car accident and, later, a plane accident, and you claim in the second suit that the client's injuries were caused solely by the plane accident, and your client testifies in deposition for the plane case that she had no contact with you beforehand, you could be in trouble.
• Liability caps strike again, this time in Pennsylvania. Fill in my usual angst-ridden commentary.
• Segway has been hit with a $10 million jury award in Connecticut after a 23-year-old man suffered brain damage from a fall from a Segway. The injury occurred during a Segway demonstration of its product, during which the man rode through an obstacle course blindfolded and without a helmet. These Segways are crazy cool and crazy unsafe.
• Grandma got run over by a reindeer. And then her estate sued.
• Max Kennerly write about anesthesia risks, which terrifies anyone who goes under.
• Will doing away with arbitration clauses in nursing home cases mean better care for our elderly in the future?
• Eric Turkewitz writes about why lawyers blog.

Speaking of blogging, with Christmas approaching this could be one of my last blog posts of 2011. Google Analytics tells me there are a decent number of people reading this blog on a regular basis. If you are one of those people, I appreciate your stopping by to hear what I have to say. Hopefully, it helped you in your practice or you found it interesting. I'm hoping to put out an even better blog for you in 2012.

The Defense Line - a publication of the Maryland Defense Institute - publishes a quarterly newsletter that includes a few "Hey, look, Ma, we got a defense verdict" pieces. Here is a sample:

Johnson, et al. v. Dr. Rosemarie Filart, M.D., et al. — Bonner Kiernan Obtains Defense Verdict in the Circuit Court for Baltimore City, Maryland — Alleged Medical Malpractice/Wrongful Death

A 53 year old man, [name deleted], developed deep vein thrombosis (DVT) after completing a course of anticoagulant therapy prescribed by Dr. Rosemarie Filart of Johns Hopkins. One of his primary care physicians, Dr. Mark Saba, subsequently placed the patient on a blood thinner to treat the DVT, but Mr. Johnson still went on to suffer from a pulmonary embolism (PE) and died. The decedent’s family (including a wife and two adult children) filed a lawsuit against Dr. Filart, Dr. Saba, and Dr. Saba’s partner, Dr. Lawrence Boas, alleging that Mr. Johnson’s pulmonary embolism was a result of the premature discontinuation of anticoagulant therapy (by Dr. Filart) and/or improper treatment of the DVT (by Saba and/or Boas). Drs. Boas and Saba, represented by E. Phillip Franke and Ace McBride of Baxter Baker Sidle Conn & Jones, were both voluntarily dismissed by the plaintiffs in the middle of the trial. Plaintiffs elected to continue their case against only Dr. Filart, represented by Carolyn Israel Stein and Jason Engel of Bonner Kiernan Trebach & Crociata. After a three week trial, the jury returned a defense verdict in favor of Dr. Filart after 45 minutes of deliberation. Plaintiffs had sought $1,200,000 in economic damages, plus noneconomic damages for the decedent’s alleged pain and suffering and the family member’s suffering due to the loss of their decedent.

Now, let's be honest. I have bragged on this blog about large verdicts and settlements (maybe some against the defense firms listed here although we leave that part out). Injured clients and insurance clients both want personal injury lawyers with a history of success. Am I trying to educate the public? Inform our fellow personal injury lawyers? Get serious. Nothing convinces clients and our referring lawyers that they have the best lawyer on their side than success anecdotes, as misleading as they can sometimes be. So we play along with varying degrees of subtlety. (Here are some testimonials and some media articles on our verdicts. See how shamelessly you can pretend there is a segue?)

Point is, I get the urge to self promote. I do question, however, the wisdom of naming your clients in an effort to prove you are a great lawyer. If you are trying a case - a malpractice case or any other - the defense lawyers would flip if you asked about prior lawsuits against the defendant, even a lawsuit that culminated in a defense verdict. Why? Because they know it leads to some of us to presume that if they got sued, they may have done something very wrong. This is unfair. But we all do it. So why throw it out in the public domain? Granted, the lawsuit is public record. But the only practical way of finding out these doctor have been sued is throwing their names around while bragging about your success.

Maryland courts turn back slip and fall victim

The Maryland Court of Special Appeals turned back another injured victim under the archaic "Really, do we still have that in 2011?" doctrine of sovereign immunity.

Plaintiff alleged she suffered an ankle injury when she slipped and fell on a wet platform after exiting a train at the Cheverly Metro station in Prince George County. The defendant, the beloved Washington Metropolitan Area Transit Authority, made all the usual - and appropriate defenses. You knew the platform was wet, didn't you? You even saw a yellow warning cone that the platform was wet, right? No one appeared to have mopped the floor to make it wet, did they?

Plaintiff's lawyers got creative and did some research. They found out that WMATA used a cleaning agent "Super Shine-All" to clean its train platforms. The coefficient of friction on the floor, plaintiff argued, was such that no one should have been surprised that the woman would fall. In a trial before Judge Maureen M. Lamasney, a Prince George's County jury agreed and awarded damages (I'm not sure how much).

Continue reading "Slip and Fall Verdict Reversed: Sovereign Immunity Strikes Again " »

I was always into statistics. When I was little, baseball statistics were the outlet. I was doing Moneyball when Billy Beane was still learning what a double steal is. (This is hyperbole for effect.)

Like a lot of us, I began to look at risk very differently when I became a parent. Now I'm more interested in what the authors of Freaknomics tell us about what matters when raising a child. (Here's the transcript of a podcast I recently listened to which I found more than a little depressing. Among other things, it really makes you question the efficacy of piano lessons.)

Freaknomics interests me because it uses statistics to assess risk that questions largely held assumptions. I try use statistics in parenting to make sure my kids are avoiding the risks that we can reasonable avoid. Clearly, car accidents are on a big blip on the radar screen. Car accidents are a major risk of serious injury and death for young children, a far greater risk that 95"% of the things that you worry about as a parent.

Drunk driving is a big risk factor for car accidents. It never occurred to me to look at where in Maryland drunk driving is the greatest. So I read with particular interest these statistics on the number of drunk driving cases in Maryland in 2010, sorted by county, as well as the number of DWI cases tried in court in 2010 and the resulting verdicts:

• Montgomery: 3,512 DWI cases filed. There were 5,324 cases tried in 2010 resulting in: 1,858 Guilty verdicts, 98 Not Guilty verdicts, 2,585 Probation Before Judgment [PBJ] verdicts, and 1,029 "other" verdicts (which include Dismissed Cases, Nolle Prosequi, Stet, Merged Cases, Jury Trial Prayers, and Miscellaneous Others)
• Prince George's: 2,733 DWI cases filed. There were 2,206 cases tried resulting in: 75 Guilty, 34 Not Guilty, 185 PBJ, and 1,912 other - 1,425 of which were closed as Nolle Prosequi.
• Baltimore County: 2,459 DWI cases filed. There were 2,563 cases tried resulting in: 715 Guilty, 86 Not Guilty, 1,312 PBJ, and 450 other.
• Anne Arundel: 2,009 DWI cases filed. There were 2,468 cases tried resulting in: 590 Guilty, 74 Not Guilty, 1,200 PBJ, and 604 other.
• Howard: 1,440 DWI cases filed. There were 1,694 cases tried resulting in: 337 Guilty, 41 Not Guilty, 943 PBJ, and 373 other.
• Baltimore City: 982 DWI cases filed. There were 969 cases tried resulting in: Guilty, Not Guilty, PBJ, and other.
• Carroll: 935 DWI cases filed. There were 816 cases tried resulting in: 156 Guilty, 36 Not Guilty, 424 PBJ, and 200 other.
• Harford: 909 DWI cases filed. There were 1,094 cases tried resulting in: 461 Guilty, 19 Not Guilty, 484 PBJ, and 130 other.
• Frederick: 900 DWI cases filed. There were 1,027 cases tried resulting in: 273 Guilty, 16 Not Guilty, 448 PBJ, and 290 other.
• Charles: 794 DWI cases filed. There were 1,135 cases tried resulting in: 376 Guilty, 13 Not Guilty, 513 PBJ, and 233 other.
• Worcester: 662 DWI cases filed. There were 1,053 cases tried resulting in: 439 Guilty, 36 Not Guilty, 482 PBJ, and 96 other.
• Washington: 642 DWI cases filed. There were 859 cases tried resulting in: 267 Guilty, 4 Not Guilty, 387 PBJ, and 201 other.
• Calvert: 626 DWI cases filed. There were 968 cases tried resulting in: 285 Guilty, 16 Not Guilty, 510 PBJ, and 157 other.
• Cecil: 585 DWI cases filed. There were 285 cases tried resulting in: 41 Guilty, 7 Not Guilty, 65 PBJ, and 172 other.
• St Mary's: 510 DWI cases filed. There were 736 cases tried resulting in: 376 Guilty, 13 Not Guilty, 307 PBJ, and 109 other.
• Wicomico: 489 DWI cases filed. There were 818 cases tried resulting in: 275 Guilty, 18 Not Guilty, 317 PBJ, and 208 other.
• Allegany: 341 DWI cases filed. There were 557 cases tried resulting in: 219 Guilty, 2 Not Guilty, 232 PBJ, and 206 other.
• Queen Anne's: 321 DWI cases filed. There were 583 cases tried resulting in: 227 Guilty, 8 Not Guilty, 222 PBJ, and 126 other.
• Talbot: 276 DWI cases filed. There were 372 cases tried resulting in: 99 Guilty, 56 Not Guilty, 155 PBJ, and 62 other.
• Caroline: 258 DWI cases filed. There were 308 cases tried resulting in: 125 Guilty, 10 Not Guilty, 74 PBJ, and 99 other.
• Dorchester: 182 DWI cases filed. There were 225 cases tried resulting in: 97 Guilty, 13 Not Guilty, 59 PBJ, and 56 other.
• Garrett: 181 DWI cases filed. There were 297 cases tried resulting in: 77 Guilty, 3 Not Guilty, 129 PBJ, and 88 other.
• Somerset: 167 DWI cases filed. There were 195 cases tried resulting in: 68 Guilty, 5 Not Guilty, 83 PBJ, and 39 other.
• Kent: 119 DWI cases filed. There were 179 cases tried resulting in: 60 Guilty, 6 Not Guilty, 72 PBJ, and 41 other.

Statistically, what jumps off the page is the number of not guilty verdict drunk driving cases in Ocean City. There are more not guilty verdicts in drunk driving cases in Ocean City than in Prince George's County. I'm assuming that it is because they have so many seasonal police officers it is tough to make cases stick. You have a 31% chance of getting a not guilty verdict in a drunk driving case in Ocean City and a 2% chance in neighboring Somerset County. That's crazy, right? (Why have we never read an investigative news piece about this?)

Of course, these are misleading statistics if you are trying to avoid drunk drivers in Maryland. This data shows not just drunk drivers but enforcement. Drunk drivers hit our roads somewhere between 88 to 500 times on average before getting in trouble, according to various experts and studies.

There is some good news here, too. Drunk driving charges are declining in Maryland. A total of 22,032 DWIs were filed in 2010, down from 23,904 in 2009, and 25,466 in 2008. Assuming that enforcement efforts have remained the same or increased, this is encouraging.

The Maryland Injury Lawyer Blog was named one of the Top 25 Tort Blogs by LexisNexis.

LexisNexis is now taking votes for the best tort blog. Normally, I would send you over there to vote for me but I think you have to register to vote and that might be a big much to ask. (If you insist, you can go here.)

I really do not know much about the process of selecting these blogs. There was some voting, although I'm not sure whether that was the only mechanism for selection on this list. Ultimately, I don't care. If someone wants to say something nice about my blog or the shirt I'm wearing, I'm happy and grateful. I'm not going to thin slice it. So thanks LexisNexis.

"Facebook helps you connect and share with the people in your life." But what if the people in your life want to use your Facebook posts against you in a civil lawsuit? Whether and to what extent online social networking information is discoverable in a civil case is the issue currently before the Court.

This is the first line in a Pennsylvania court's order on a Motion to Compel Facebook Login Information.

At the outset, it is important to point out that this is a pathetic excuse for a title of a motion. If I were a judge, I would deny the motion just based on this idiotic, although admittedly apt, title. (I'm kidding about this. I think.)

Defendant's lawyers - a huge law firm in Pennsylvania - looked at the plaintiff's Facebook account and found evidence that contradicted her claim of serious injury (often defined by defense lawyers as breathing without a look of agony).

Continue reading "New Facebook Opinion" »

The Washington Post reports that Montgomery County Judge Brian G. Kim resigned after reports of a road rage incident began to circulate.

Apparently, Judge Kim was accused of tailgating a woman - yes, it matters to me - because he was believing he’d been cut off. She reported to police that Judge Kim was “zooming up beside me, yelling through the windows and gesturing.” She also said that the Honda reached about 70 mph and zoomed over to her lane, causing her to slam on her brakes to avoid a wreck.

I don't know if it made a difference but judges that make a lot of enemies on the bench have a much harder time making it through a little scandal. Court Watch Montgomery was not real excited about Judge Kim after sitting in on six months of restraining-order hearings in Montgomery County.

Continue reading "Road Rage Judge Steps Down" »