Maryland Injury Lawyer Blog

My Revised Opinion on Pit Bulls

Friday, I wrote a blog post about the Maryland Court of Appeals opinion in Tracey v. Solesky that imposes strict liability for pit bull owners and, seemingly, landlords, in dog bite cases. I've offered an opinion generally supportive of the court's ruling and argued that the court should go a step further and hold all dog owners accountable when their dog bites another person (or animal for that matter).

I think I'm right on the latter point. If your dog bites someone and causes serious injury, I think you should be liable for the harm that was caused. But I got a lot of comments and emails from people who strongly disagreed with some of the loose facts that I threw out. While some of these comments were just crazy aunts and uncles peeking out of their attics and basements, others provided real insight about these dogs that demonstrated a far greater appreciation of facts and studies about pit bulls than I have.

Continue reading "Maryland Pit Bull Law: A New Opinion" »

The Maryland Court of Special Appeals issued its opinion on Friday in WMATA v. Williams, a workers' compensation claim that addresses how far the chain for causation can go before the court decides that a later "related" injury is just too attenuated. Although I do not handle workers compensation cases, I think the legal issues here are interesting and have broader implications beyond workers' compensation cases.

The plaintiff (I know, you call them claimants in comp; it just sounds weird to me) hurt his knee on the job. While attending "work hardening" therapy, the driver of a car in the parking lot put her car in reverse, backed into the plaintiff, resulting in an injury to his other knee for which he also sought workers' compensation benefits.

I can see this from both sides. At first glance, I think it seems pretty attenuated to argue a causal relationship just because you coincidentally got injured going to lunch from therapy. There has to be some difference between causation in fact and proximate causation. This would seem to jive with the Maryland high court's holding in Mackin v. Harris. In that case, the court explained that for every injury, there are innumerable acts whose absence would have prevented the harm. It is the butterfly effect. Going back to Palsgraf, that is not and cannot be how proximate cause is defined. I'm a plaintiffs' lawyer and even I get this.

Continue reading "New Workers' Compensation/Forseeability Opinion" »

A divided Maryland Court of Appeals has made new law today. In Tracey v. Solesky, the court ruled that in dog bite cases involving a pit bull or cross-bred pit bull mix, it is no longer necessary to prove that the dog in particular or pit bulls in general are dangerous. Is this a win for plaintiffs' lawyers? Is it an anti-dog opinion? Will it lead to changes in homeowners' policies throughout Maryland? With apologies to Steven L. Miles, let's talk about it. (August 21, 2012 Update: Incredibly, the court has reversed itself on a key portion of this opinion.)

This case involves a pit bull named Clifford who lived in East Towson, just two blocks from York Road and the Towson University campus. While a big fellow like Clifford the Big Dog, this Clifford was a bit more viperous. One day, Clifford attacked two boys on the same day in Towson, Maryland. The injuries to the second boy were serious: he needed five hours of surgery at Johns Hopkins Hospital to address his injuries, including surgery to repair his femoral artery. He spent seventeen days in the hospital, had additional surgeries, and spent a year in rehabilitation. I'm not sure how old the boy was but, either way, it's just an awful thing.

The boy and his parents brought suit against the owners of the pit bull that mauled him and the owners' landlords. The owners of the dog went into bankruptcy and received a discharge of their debt. The only defendant standing was the landlord (Although the Long & Foster lease executed allowed Clifford's owners to keep an "American Bulldog Terrier" on a property that did not have a fence.).

Continue reading "Strict Liability for Pit Bulls in Maryland" »

Ask the average person or even the average lawyer what they think of forum shopping. Generally, it is viewed as a crime against the people. So let's talk about "forum selection" instead.

Forum selection is clearly important, demonstrated by the frequency with which parties contractually provide for and battle over venue. There are a host of reasons why forum matters so much. There are choice of law, capacity to sue, statute of limitations, caps on damages, and a host of other potential considerations. But for personal injury lawyers, we are forum shopping for one purpose: trying to find a jury panel that would be most receptive to our client's claim.

It spite of all of the hand-wringing about the crime against the people for plaintiffs' lawyers to have - gasp! - options as to where to file a lawsuit, Maryland law defers in some measure to plaintiff's selection as the choice of venue if venue is proper in the forum the plaintiff selects. The Maryland Court of Appeals has repeatedly held that it is "the moving party who has the burden of proving that the interests of justice would be best served by transferring the action…and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party.” But, let's face it, the trial court has a lot of discretion on venue. A trial judge can pretty much ignore this rule with impunity and balance the interests as the judge sees fit. We joke that the "weighs strongly" rule is only the law if the motions judge agrees it should be the law. (This was never fully explained to me in law school, let me tell ya.)

If you are a plaintiffs' lawyer, you are practicing two types of forum shopping selection: vertical and horizontal. Vertical forum shopping is moving a case to or from federal court. This is rarely an option in car accident and malpractice cases, but is a common question in product liability cases. The one thing that lawyers just don't seem to understand is the nuances of the diversity of citizenship rule for filing in federal court. Many lawyers wrongfully believe there is diversity jurisdiction if you are suing an out-of-state defendant, even if you are a resident of that state. In other words, if you have a client who is domiciled in Maryland, and file against an out-of-state defendant in federal court, that defendant can get the case transferred to the Maryland county with appropriate venue. It is amazing to me how many lawyers don't understand this.

Continue reading "Maryland's Best and Worst Places to File a Personal Injury Lawsuit" »

There were no personal injury related appellate opinions this week in state or federal court in Maryland this week but there are a few cases elsewhere worth a read:

• In Morse v. Davis, the Indiana Court of Appeals affirmed a $1.25 million verdict (actually $2.5 million reduced by the cap) in a colon cancer misdiagnosis case. Defendant made two arguments we see in various permutations in our practice. The first is the whole idea of whether an expert can speak directly or indirectly to the ultimate issue of fact for the jury. The second is the extent to which an expert can make credibility determinations about another witness. I think this is often an issue not worth fighting for plaintiffs' lawyers when the defense is calling a plaintiff a liar. Rich Friedman's book Polarizing the Case is an illuminating read on whether it is a good thing to make the trial about whether your client is a liar.
• In Horak v. Building Services Industrial Sales Company, the Court of Appeals of Wisconsin found that invoices produced by the company's lawyer, that documented the sale of products that contained asbestos, are admissible even without an authenticating witness under the ancient-documents exception to the hearsay rule. Given the value of asbestos cases, that is a pretty valuable invoice to find.
• In Saeco Electric & Utility, Ltd.v. Gonzales, a Texas appellate court reversed a $5 million verdict, finding that the case should have been submitted to the jury as a premises defect action, as opposed to straight negligence. The dissenting opinion found that because the utility was not in control of the premises at the time of plaintiff's injury, but was responsible for creating the dangerous condition that caused injury, this is not just a premises liability case. I think it is odd that in some states the dissenting opinion is filed in a separate opinion. You can find more details on the jury's verdict and the plaintiff's awful injury here.
• Riegel v. Medtronic claims another victim, this time a man alleging that a Medtronic drug pump and spine catheter caused him to become a paraplegic. Sadly, no one is talking about the Medical Device Safety Act to remedy this injustice anymore.

You can find the four appellate opinions you should read from last week here.

John Bratt follows up on my defense lawyer tricks posts (here and here) with a post on an interesting tactic involving medical authorizations.

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A few weeks ago, I was pushing Nicholas Allard as my choice for the new dean at the University of Baltimore Law School.

Well, he got hired. But not by us. At this time, I would like to withdraw my endorsement.

In the spirit of sour grapes, I want to say that I did not want this guy anyway. Seriously. After I wrote that blog post, I Googled him and found that he has basically been applying to be the new dean at every law school from here to Timbuktu. I thought he saw a unique opportunity in Baltimore. Instead, he was just a guy who wanted to be a law school dean somewhere. Not that there is anything wrong with that. But, the girl at the bar who really wants to go home with anyone is not quite as appealing as the one who sees something special in you.

I learned about this from a comment to my original post.

• In Doali-Miller v. SuperValu, U.S. District Court Magistrate Paul W. Grimm considers defendant's motion in limine regarding medical records and bills in a personal injury case. The plaintiff's lawyer did not bother writing a response, so Judge Grimm pretty much does that himself. Since Judge Grimm is the most qualified lawyer in Maryland to make these arguments, plaintiff still gets a fair shake and the motion is denied in part and granted in part. If Judge Grimm is writing about evidence in a personal injury case, I know I need to be reading that opinion.
• In Jones v. John Crane, District Court Judge Catherine C. Blake writes about federal jurisdiction in an asbestos products' liability case where the exposure allegedly occurred on the Aberdeen Proving Ground. Usual story, defendants want to be in federal court; plaintiffs want to be in Baltimore City. The case remains in federal court for now, pending further discovery.
• In Buss v. Nilar U, the Plaintiff sought summary judgment on a mediation error lawsuit filed in Carroll County, Maryland against a Wal-Mart and a primary care doctor. Plaintiff's attorney's argument was that because the doctor did not deny breaching the standard of care, plaintiff was entitled to summary judgment on the malpractice claim against the doctor. District Court Judge James K. Bredar found that while the standard of care may have been breached, there was a dispute of material fact as to causation, which is an element of plaintiff's burden of proof.
• Let's take one outside of Maryland. In Martin v. St. Dominic's Hospital, a divided Mississippi Supreme Court dealt with the difficult issue of determining what medical experts need to say when thin slicing new and pre-existing injuries.

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Last week, I wrote about a stunt that a defense lawyer pulled with a defense medical exam in a car accident case. This week's sneaky defense lawyer trick involves a creative effort to depose plaintiffs' medical expert twice in a wrongful death medical malpractice case.

Here's what happened. Shortly after our lawsuit was filed in Anne Arundel County, against Baltimore Washington Medical Center, the hospital's lawyer noted the deposition of plaintiffs' expert. We noted the deposition of a key fact witness before the plaintiffs' expert's deposition. The defense attorney claimed an apparently inalienable right to depose our expert before any fact witness, and then to get a second crack at the expert down the road, after he had the opportunity to review the fact witness' deposition. So defense counsel filed "Defendant's Motion to Compel the Deposition of Dr. [Expert's Name] and Request Protective Order for the Deposition of [Fact Witness Nurse] and Rule 2-432 Certificate." This motion should be denied on the goofy title alone.

The motion begins with the perfunctory arguing of the merits of the case and the requisite taking the facts out of context. What this has to do with the merits of the motion is anyone's guess. The motion then advances to the ridiculous argument that the defense lawyer can conduct discovery based on the Certificate of Merit. I give them credit for boldness: they come out and admit they want a second deposition of the expert if he intends to testify at trial.

Here comes the tricky part. To support their argument, defense counsel attached orders from Baltimore County Judge John F. Fader, and Prince George's County Judges Thomas Smith and Leo E. Green, that purportedly issue similar orders in other malpractice cases to the one that defendant seeks here. I say "purportedly" because who knows what the facts of those cases are? That is why precedent is not made from reading orders, but reading the entire opinion so we can understand why the court ruled as they did and what facts were germane to the ruling.

Continue reading "Sneaky Malpractice Defense Lawyer Tricks" »

I hope you had a good Easter. Here are some personal injury stories/blog posts that I found of interest over the last week.

• Bob Kraft discusses the continued effort to introduce some sanity in the byzantine labyrinth personal injury lawyers face when trying to deal with Medicare liens. He summarizes the wisdom in passing a new law that simplifies the process: "[W]hen the Chamber of Commerce and the trial lawyers associations both agree on a proposed law it’s hard to think of an excuse not to pass it."
• Walter Olson reports on Overlawyered about the dismissal of a lawsuit that sought to declare an unlawful McDonald’s practice of including a toy in its Happy Meals. I don't know if it is a good idea to put toys in Happy Meals. I know my kids like getting them, but maybe it is a bad idea to connect bad food and toys. But, not every bad idea should result in a lawsuit, right?
• Max Kennerly writes about defense medicine and what may be a new trend of doctors not blaming plaintiffs' medical malpractice lawyers for all that ails the health system. I have written about this a zillion times (here, here, here, here, and here, just to name a few).
• How to structure an appellate brief.
• GlaxoSmithKline is trying to pretend that it should be a citizen of Delaware. We all get it, Glaxo does not want to answer in its home jurisdiction and wants to pretend it is a citizen of Delaware because Delaware - all 500 square feet of it - would shoot its own citizens in the head to protect a corporation. Because corporations are people too, you know. I'm fine with their legal strategy although, really, they should be telling as few people about it as possible.

U.S. District Court Judge James K. Bredar ruled this week that a legal malpractice insurer - our carrier Minnesota Lawyers Mutual, who I would recommend by the way - does not have to provide coverage for a legal malpractice claim because its insured attorneys did not provide adequate notice of a potential claim. As a result, they failed to meet a condition precedent for insurance coverage.

If you are a Maryland lawyer, you ought to read and understand this case. Alternatively, read this blog post. Or, just understand this: if you think there could be a legal malpractice claim against you, report it quickly. Do that and you will be okay. Otherwise, you are playing with fire.

The facts are convoluted in this commercial litigation case. Basically, D.C. lawyer is pro hac vice admitted into Maryland, but did not appear to really know what she was doing in handling the case, including failing to understand some pretty fundamental tenants in who to respond to a motion for summary judgment. Whether or not this was just negligence in the air or whether the mistakes actually caused harm to the client was less clear. Minnesota Mutual hung around and defended the legal malpractice claim for a bit, but then stepped out and denied coverage.

Continue reading "New Legal Malpractice Coverage Case" »

Judges Lenore R. Gelfman and William V. Tucker won both the Democratic and Republican voting Tuesday. Challenger Clarke F. Ahlers finished third on both ballots. Judges appear on both parties' ballots in the primary (which is item #535 of goofy things about judicial elections in Maryland).

As I wrote here, I supported the sitting judges because I dislike the whole idea of electing judges in Maryland. Who knows, maybe Ahlers avails himself to the judicial nominating process and replaces Judge Gelman when she retires. Crazier things have happened.

After agreeing to a defense medical exam, we received a letter from defense counsel with a draft agreed upon order to be filed with the court agreeing to the DME. Here is letter and the order. This is the first time I have seen a defense lawyer try to do this.

While it is all rather harmless in most cases, why in the world would a plaintiff's lawyer sign this? Without reference to any conditions, the client agrees to the exam without qualification for nothing in return? I wish I knew what percentage of plaintiffs' lawyers just sign this and send it back. It must work at least occasionally, or he wouldn't still be sending this out (unless he just wants a reason to put down .2 on his time sheet). I also think it is really annoying because you have to respond - you can't let a "the doctor is going to bill you $600 for a missed appointment" sit out there without a response. (Well, maybe you can but I think you have to respond to set the record straight.)

Continue reading "Defense Lawyers Looking for Every Advantage" »

Local Government Tort Claims and the Maryland Tort Claims Act

Our law firm does not handle police brutality cases. We have some experience handling the claims - not me but other lawyers here - and the injuries can be horrific. But, the criminally insane Maryland Local Government Tort Claims Act destroys the value of these cases. I offer as exhibit #549 the Maryland Court of Special Appeals opinion in Leake v. Johnson.

Just tailor made awful facts. Police arrested a man for public urination. A crime, I guess, but should you really be arrested for it? Well, this guy was, and he was handcuffed and put in a police van. The police did not put a seat belt on him and then gave him a wild ride in the paddy wagon. When they realized they had nearly killed the guy, they drove him to the hospital and still didn't fasten the guy in place. The man's spine became dislocated and fractured, causing him to become a quadriplegic. The paralysis occurred, according to plaintiffs' expert, as a result of pulling him out of the van after his initial injuries. He eventually died. Can you imagine? Public urination? I Googled around a little, looking for some back story. What really happened? What happened to the police officers? I can't find a single piece of good information. Crazy. A zillion people are protesting Trayvon Martin. Couldn't we borrow just a few of those people to look at the injustice that occurred here?

Continue reading "Maryland Local Governement Tort Claims Act: Another Injustice Passes Without Notice" »

Last week, in Hendrix v. Burns, the Maryland Court of Special Appeals dealt with the question of what plaintiffs' lawyers can admit into evidence in a car accident case when the defendant stipulates to liability.

In car accident cases, many defense lawyers loathe to admit responsibility. There is always a chance that the jury will hate the plaintiff and accept some insane version of how an accident happened. But, the best thing that can happen for the plaintiff is for the defense lawyer to deny responsibility in a case, because it diminishes the defense lawyer's credibility on the scope of the plaintiff's injuries. If you are a car accident lawyer, you want to get the jury mad at the defendant. Jurors give more money when they are mad. This is hard in car accident cases because it is hard for jurors to get mad at a negligent driver who makes what they can perceive to be an accident that they could easily make themselves. Good car accident lawyers frame the case not as an accident, but a choice the defendant made. "The defendant in this case chose not to pay attention." But, still, we all know that we have failed to pay attention while driving and it could have, under the wrong circumstances, lead to a car accident.

In Hendrix, the call to stipulate to liability was a no brainer for State Farm who defended the case. The defendant was drunk. He tried to flee the scene of the accident, but his damaged car wouldn't let him. He was in the middle of some sort of road rage dispute. A picture perfect bad guy defendant for the jury to hate.

State Farm did what they should do, file a motion in limine to exclude the introduction of evidence that the defendant was drunk, that he had been involved in a “road rage” incident with another driver and was crazily chasing that driver when he ran the red light, that defendant attempted to flee after the accident, and also that his criminal record included DUI convictions.

Plaintiff's lawyer did what good plaintiffs' lawyers do in a case like this. He brought a battery case for the road rage, arguing that has been put to bed since law school doctrines like transferred intent. He brought a negligent entrustment count. He also smartly argued that a part of Plaintiff's pain and suffering was seeing the defendant drunk and trying to flee the scene of the accident. This lawyer was doing everything he could to put his client in a position to maximize her damages.

Does this have anything to do with the appropriate level of damages in a personal injury case? It depends on your world view. If you think damages should be calculated in a hermetically sealed box, it shouldn't be admissible. From this perspective, it shouldn't matter whether the defendant was a crackhead on his 6th DWI or a nun with a 40 years history impeccable driving.

Yet, somehow, the fact that she was a nun would come out on direct. Why? Because the insurance defense lawyer is trying to minimize damages by suggesting that this nun is a sweetie and she is going to have to pay this verdict out of her pocket.

Why do we let the nun say she is a nun? Context matters. But once you agree that the fact that she is a nun should be admitted, doesn't the dam break open when the defendant is drunk. Isn't that context - like the nun - that the jury should consider?

Continue reading "Defendant Was a Drunk Driver: Should That Be Admissible" »