Maryland Injury Lawyer Blog

Lawyers do not have a natural affinity for checklists. Lawyers have egos that compare with any profession and checklists are a reminder of your mind's limitations. "I'm not making mistakes in working up cases so why would I need a checklist?" But, sometimes, a new wave of studies are showing, you do not know that you are omitting important things that you have to do to work up an accident case unless you are reminded to do them by a checklist. When do lawyers figure this out? Trial. Most accident cases are settled before trial. So you don't even have the constant reminders of your errors from not having a checklist.

Continue reading "Car and Truck Accident Case Checklist" »

The purpose of pre-verdict interest is to require a person who owes money to pay for the time value of money, which is the advantage received from the use of that money over a period of time. In contract dispute cases, Maryland provides for 6% prejudgment interest.

In personal injury cases, many of plaintiffs' damages also occur immediately. Just like contract cases, Maryland personal injury victims are deprived of the use of money to which they are entitled to receive the moment the injuries are incurred. Yet tort victims get no interest on money that accumulates.

Of course, insurance companies are premised on the idea of time value of money. Take premiums, invest the money, and - reluctantly - pay out claims later. While I think the idea that insurance companies stall to delay making payment is sometimes overblown (administrative considerations give insurance companies some incentive to move files forward), there is still no question that there is economic incentive to delay because the longer they hold the money, the more interest they will receive.

Continue reading "Pre-Verdict Interest" »

John Bratt writes on the Baltimore Injury Lawyer Blog how defense attorneys in car accident cases are using assignment and authorizations to cross examine plaintiffs' experts. "You have a vested interest in how this case turns out, don't you?" or "In a sense, you have a contingency fee agreement with this client, don't you, doctor?"

I don't think think the fact that the expert's office signed an A&A with the client should be admissible at trial. But not every judge is going to agree with me on that.

This week, in University of Maryland v. Multi, Medical Systems, the Maryland Court of Appeals reversed the Court of Special Appeals on a topic that has gone relatively untouched until recently: "use plaintiffs" in wrongful death cases.

This appeal involved a medical malpractice wrongful death and survival action claim brought by two men who alleged that University of Maryland Medical Systems ("UMMS") doctors negligently tore their father's trachea during an intubation procedure after he had an acute myocardial infarction. Plaintiffs' malpractice attorneys' alleged the doctors failed to timely treat the torn trachea which led to complications that caused their father's death.

Baltimore City Circuit Court Judge Evelyn Cannon dismissed this plaintiffs' wrongful death claim with prejudice after the hospital filed a motion seeking dismissal because a long lost adopted son of the decedent was not named as a use plaintiff on the Complaint. When I wrote about the Maryland Court of Special Appeals opinion last year, I was under the impression that the plaintiffs' lawyers learned of the adopted son in deposition. But this was flushed out in oral arguments. Plaintiffs' malpractice lawyers told the court that counsel knew of the adopted son but could not find him (or even knew if he was alive). The Maryland Court of Special Appeals reversed the trial court, finding an abuse of discretion in now allowing the plaintiffs leave to amend the complaint to add the use plaintiff.

Continue reading "New Maryland Wrongful Death Use Plaintiff Opinion" »

The Maryland Court of Special Appeals affirmed this week a $4.1 million verdict (reduced to $3.6 million by the cap) in a medical malpractice, birth injury case against the University of Maryland Hospital in Baltimore City.

No one would disagree that the facts of the case are tragic. The plaintiff, now a second grader, was born at 26 weeks of pregnancy. While the child has made unbelievable strides in recent years - and will continue to with God's Grace - he still cannot run. His IQ is currently in the 80s. Doctors at the trial testified that he will more likely than not be be a "disabled worker" when he reaches 18, making his job prospects poor. It is an awful thing. Hopefully, his recovery continues to push him forward and he proves these predictions wrong (I realize I said this already).

Continue reading "Baltimore City Birth Injury Verdict Affirmed" »

Our Rod Gaston is giving a lecture on Advanced Uninsured/Underinsured Motorist Law at the Treemont Grand Hotel in Baltimore on Friday, March 9, 2012. You can get information here.

Rod is going to provide information both on Maryland uninsured motorist law and how to use that law to maximize the value of serious car accident claims in Maryland. If you can't make it, you can also order the audio CD and course materials.

I'll take "Gimmick Blog Post Titles That Will Defy the Odds and Be Worth Reading, I'm Serious, Just Give Me a Chance" for $400 please, Alex.

Tied for first at the top of Knick players who have had 20 points and 7 assists with 6 consecutive games is Jeremy Lin. As little as three weeks ago, if you were taking odds, you would have bet the Knicks would cut him so that they did not have to guarantee his salary for the season. The odds of going from there to this are roughly the same as Barack Obama calling you today and telling you he is dropping Eric Holder and he desperately needs you to be the U.S. Attorney General. Seriously, the last time I enjoyed a sports story this much was when Mark "The Bird" Fidrych burst onto the scene in 1976. And that was only because I was 7 years-old. Jeremy Lin is actually a better story.

There are a lot of Jeremy Lins out there in our business - great personal injury lawyers that are obscure and handling Yorkshire Terrier dog bite cases. Their first problem is the lack of opportunity. Trial lawyers can only do so much with the facts that they have. If you don't have good cases, you are going to struggle to get consistently great verdicts even if are channeling your inner Gerry Spence.

(The same is true for defense lawyers. I've tried cases against lawyers considered to the best in Maryland that I thought they were either awful or I caught them on a bad day. I've also tried cases against lawyers I thought were brilliant that I know have a very hard time chasing down $120 an hour auto tort insurance clients. It is even harder for defense lawyers in some ways because they don't get paid and recognized for good results like personal injury lawyers do... unless they really know how to spin their successes.)

They key when you are in this spot is to Jeremy Lin it. (Yes, I'm using his name as a verb, too.) You have to do the best you can with what you have. Shortly after we started our practice, we tried a case in Baltimore County where a woman was in line at the drive-thru at the bank and got in a rear end accident. The uncontested testimony was that the at-fault driver was going one mile an hour. Laura and I tried the case together. We threw everything and the kitchen sink at it and we got a $125,000 verdict. We had had better verdicts but this was our signature verdict at the time. LawyersWeeklyUSA did a cover story on it. We got some attention, more lawyers started referring us cases, in we built from there.

(Looking back, almost 10 year later, I look at all differently. Man, I wish I could not see so many shades of gray. First, I'm a little embarrassed we even took the case. How pathetic is it, on some level, to take 1 mph bumper tap case, anyway? And we are really bragging about getting $125,000? My law firm would never take that case in 2012. Yes, I believed the plaintiff was hurt from the car accident and still do. It was one of those rare, fluke things that happen. Still, we turn down cases all the time where I think the person may have gotten badly hurt from the accident but we don't think we can prove it. Also, the unspoken implication was that we were such great lawyers we could turn a garbage car accident or other personal injury case into a case just because we were the attorneys. It is a false premise although a lot of lawyers who are full of themselves would swear otherwise.)

Continue reading "Personal Injury Attorneys and Jeremy Lin" »

This blog is directed primarily to other personal injury lawyers around the country. I try not to focus too much on issues that are specific to Maryland because there is not enough lawyers in Maryland to maintain a readership. Even when I'm analyzing Maryland personal injury cases, I try to make the information of use to lawyers everywhere. But my post last week on Clark Ahlers on bid to oust the sitting judges in Howard County has generated a lot of traffic, emails and some interesting comments.

Continue reading "Howard County Race for Judge and Random Howard County Musings" »

Punitive Damages Against Drunk Drivers Who Cause Car Accidents in Maryland?

There is a bill in the Maryland General Assembly that would authorize punitive damages against drunk drivers who caused "injury or wrongful death while operating a motor vehicle." Punitive damages would be available against drunk drivers: (1) With a blood alcohol concentration of over .15; or (2) With a blood alcohol concentration of over .08, and was driving on a suspended or revoked license or had entered a plea of nolo contendere or received probation before judgment within the last 5 years.

The Maryland Chamber of Commerce opposes this bill. Why? I really think it is because the Maryland Chamber is run by the true believers who care about some issue far more strongly than furthering the interests of Maryland businesses. That mission includes a strong opposition to anything their gut tells them that Maryland personal injury lawyers might support. Seriously. If Maryland trial lawyers put out a statement that Jeremy Lin should be the focal point of the Knicks' office even when Carmelo Anthony returns, the Maryland Chamber of Commerce would immediately put out a statement renouncing Lin (citing the fact that Carmelo is from Baltimore or something). It is just silly. (Minority Report: their opposition makes perfect sense. They are worried about the slippery slope of punitive damages affecting Maryland businesses and they are two steps ahead in the chess match. Personally, I don't give them that much credit.)

So let me set the Chamber's mind at ease. Economically, Maryland car accident attorneys would get no real benefit from punitive damages in drunk driving injury and death cases. Why? Because punitive damages are not covered by insurance. Which means the drunks have to come up with the cash themselves. My firm has collected $0.00 from people individually over the last ten years. Collecting money from people individually is just very difficult. In almost every case, the juice is not worth the squeeze unless the defendant goes by the name John Rockefeller. Lawyers handling car accident cases will not see their revenues rise a half of a percent by getting drunks to pony up punitive damages.

Continue reading "Punitive Damages for Drunk Drivers in Maryland " »

The Maryland Court of Special Appeals has overturned much of the $150 million dollar verdict that was awarded to Baltimore County residents whose properties were contaminated by a massive gasoline leak - 700 gallons of gasoline per day for 37 days - at an Exxon station. This verdict does not impact the second Exxon trial that was tried last year and lead to a $1.5 billion verdict (although if I were those plaintiffs, I would not start spending that money quite yet).

This is a 322 page opinion that contains tons of law: medical monitoring, Frye-Reed and other evidentiary issues, diminutive value, damage evaluations, emotional distress... and on and on. At some point I will might read this whole thing and try to break it down on this blog. But I can't pretend I did this last night so to get more, you need to read the opinion (I'm not sure this Baltimore Sun article will get you very far but it does give a good flavor of the dispute).

I'm assuming this case is heading to the Court of Appeals.

There is a big new Maryland Court of Special Appeals' opinion. The Exxon case? Oh yeah. But that is 322 pages. I have not read it yet. I'll throw up something briefly on this case later. In the meantime, let's talk about the Maryland Court of Special Appeals' opinion in Garrity v. Injured Workers' Insurance Fund, an opinion issued this week that every Maryland car accident lawyer should read, particularly those like me who don't handle workers' comp cases.

If you are a plaintiff's accident lawyer, you need to be able to spot the issues with workers' comp claims. If you can't, you may be leaving your client's risk-free money on the table without ever knowing that your client had another source of compensation. While comp claims are a huge hassle for lawyers handling car accident claims, because dealing with the comp lien can be a nightmare, you have to know whether your client might have a claim. One big step forward towards understanding what you need to know is an appreciation for the "comings and goings" rule and its exceptions. This opinion, written by Judge Michele D. Hotten, should help get you there. (I'm not sure how serious the accident, was but the good news is that plaintiffs' attorney's brief to the court indicates that he is now back to work at the courthouse.)

The plaintiff in Garrity, a part time bailiff at the District Court for Baltimore City, was involved in serious car accident as he was driving back to the courthouse during the workday. The case starts off comically enough, the plaintiff wore a Christmas tie to work in the spring and had to go home to change his tie. He also spills something on the tie; it comes off like a classic episode of Three's Company. But the good humor ends when the plaintiff gets into a head-on car accident - an accident caused by the other driver - and ends up on shock trauma.

Plaintiff's lawyer made three arguments in an effort to get this car accident covered by workers' compensation. All three would fail. But it is worth taking a look at the arguments.

The first argument was that while injuries incurred while going to or coming from the place of employment are not generally not compensable, Plaintiff was on a "special mission" exception to this rule. Under this rule, if the employer requires a worker to undertake a special journey for the benefit of the employer, injuries which occur en route are compensable even if the trip may be only to or from the employee's usual place of business. This argument failed because the bailiff did not have express or implied authority to leave the courthouse.

Continue reading "Baltimore Car Accident: New CSA Opinion" »

The Baltimore Sun has an article this week about Columbia criminal attorney Clarke F. Ahlers attempt to unseat Judge Lenore R. Gelfman and Judge William V. Tucker on the Howard County bench in November.

I don't know Ahlers. I know he was a former Howard County police officer who taught at the University of Baltimore School of Law for a time. I'm not floating around in Maryland criminal law circles but the impression I have is that he is well liked and well respected. So Ahlers is right, he probably would make a good judge. That is not a canned, obligatory throw away line: I really think he would be a good judge.

But what exactly are the issues in the campaign? Well, I went to Ahlers' website. He has a category devoted to the issues. Oh good, I thought, let's see what they are.

There are no issues. There is a lot of talk about the Constitution but, really, are there judges out there running on an anti-Constitution platform? He also wants and new courthouse, and he was in private practice. Most of the page is devoted to the serious criminal/police cases he has handled. A great resume but not exactly an explanation of the issues.

There is, however, a quote from Thomas Jefferson about blessing of judicial elections and a bit of a lecture for those of us who oppose judicial elections in Maryland:

Those who favor a purely appointed system of judges believe citizens are too dull to manage their own lives without government’s direction, and are unqualified to select those who would sit in judgement of them.

I think this populist argument is the best arrow in the quiver of judicial elections. But it is weak. I certainly don't think opposing local judicial elections is a sign off on the idea that citizens are too dull to manage their own lives with government direction. In fact, the connection of the two is - respectfully (hey, particularly respectfully if Ahlers wins!) - intellectually lazy. I can favor having police officers without being in favor of a Gestapo. I can favor taxes without being in favor of socialism. I can favor Joe Flacco without calling him a top ten NFL quarterback.

Clearly no one agrees that we should select every governmental position? Should we vote on who should be the Howard County Chief of Police? How about the Superintendent of Schools? Are we so lazy that we don't care who can arrest us and who teaches our children?

Continue reading "Clark Ahlers: Howard Court Judge Election Battle" »

LawyersUSA has an article out today on the struggles that personal injury attorneys have had in getting fair compensation for their clients in accident and malpractice cases. The article contains a few quotes from me.

There are a couple of leitmotifs lawyers deal with when representing injured people who are either illegal immigrants or appear to be. First, if they are legally here in this country, you have to get that out on direct. There are some jurors who - let's face it - are going to view anyone with an accent as an illegal immigrant. In the real world, there is a prejudice against illegal immigrants. If you can kill that perception, do it.

Conversely, you need to move in limine to bar any evidence, suggestion, or argument regarding the immigration status of plaintiff (or any witness, for that matter) simplly because it is prejudicial. Put in front of a jury that the plaintiff is legally working in this country, yet suppress any mention of immigration status if the plaintiff is undocumented? Is firing off these two seemly contradictory statements in the span of seconds lawyer double talk or even duplicitous. Actually, it is not. Juries don't say "Gee, we have a documented immigrant, let's open up the checkbook" but they might discriminate against a plaintiff because they don't think he/she belongs in this country. Doors don't always swing both ways.

Continue reading "Illegal Immigrants in Personal Injury Cases" »

Caps on non-economic damages make it impossible to receive true fair value in wrongful death claims in Maryland (and in most states). Accordingly, personal injury lawyers need to turn over every possible stone to maximize the economic damages in wrongful death cases. Often overlooked, even by the best wrongful death lawyers - at least until they get the case to an economist - is the decedent's employer funded benefits. The problem is, in many wrongful death cases an economist is not used either because the plaintiffs' lawyer thinks he does not need one, or because the case reaches a settlement long before an economist is engaged. As a result, employee funded benefits are not always included in the calculus. Fifteen years ago, if you left out these benefits, the overall value of your case suffered a little. In 2012, with health insurance and other employee benefits skyrocketing, if you don't include these in your damages in a wrongful death case, you are leaving as much as 25% of the value of the claim on the table.

Continue reading "Increasing the Value of Wrongful Death Cases" »