Maryland Injury Lawyer Blog

I was expecting and got a call Monday night. Laura Zois and John Bratt were in trial in Frederick County in a rear end car accident case. I got word of the verdict: $291,000 and some change. A verdict in excess of the at fault driver's State Farm policy of $100,000 and the uninsured motorist policy of $250,000.

The case was disputed on liability so my first reaction was one of joy: glad we didn't lose. But I knew the case and I really thought the jury could have awarded a lot more. Frederick County is a pretty conservative jurisdiction. We also lost a ton of motions that I think we should have won on some critical issues that I think might have made a difference.

The point, besides I guess bragging a little big about the verdict, is that even though the settlement offer was $8,200, I felt like we should have gotten more and I was a little disappointed we did not. This speaks volumes of where were are, at least in Maryland, with State Farm. We can get a verdict 35 times the settlement offer and still not view it as an epic victory. Because State Farm's offer was not even remotely in the range of reasonable.

If you leaf through jury verdicts which I do on a monthly basis, it is amazing how many car accident cases that go to trial in Maryland are defended by State Farm.

I want to trot out the trite "Boy, State Farm is dumb" narrative. In this case, I can make the argument that they should be able to size up a case and plaintiffs' counsel a little bit and tailor their arguments more closely. But I really think State Farm has a business model that it sticks to diligently: if you want our money you better come and get it. As much as personal injury lawyers and victims might wish it to be so, State Farm is no dummy. I bet they are using this boxing gloves approach because they have decided that it is the best way to maximize profits because too many plaintiffs' lawyers - who are really settlement lawyers - are going to tolerate it. I can't hate them for that.

• State Farm's Issue Preclusion Argument Wins and Loses on Appeal
• Is Calling Someone a State Farm Claims Adjuster an Insult?
• Sane State Farm Adjuster
• State Farm's Blog
• Advice on Negotiating Car Accident Claims with Each Insurance Company
• Interesting Plaintiff's Lawyer Tactics in State Farm Bad Faith Claim

Insurance companies are sometimes arrogant about [fill in the blank]. One phrase that fits neatly into that blank is "pretrial obligations." The insurance company is not a party to the case and it feels at least a little outside the reach of a judge's fist.

Judges used to the fear of that fist can get pretty angry when their orders are brushed aside as the insurance company found out in Station Maintenance v. Two Farms, decided on Thursday by the Maryland the Court of Special Appeals.

Plaintiffs in this case filed suit in Baltimore Court alleging that approximately 5,400 gallons of gasoline that had leaked out of defendant's underground storage tanks at its facility on Pulaski Highway, in Baltimore, Maryland, contaminated their property. Plaintiff settled the case for $2.7 million and assigned their claims against another defendant to the settling defendant. The case proceeded along. The court ordered the parties to appear at a settlement conference and for the insurance companies to send a senior officer or employee of both insurance companies to come with settlement authority up to the full limits of its policy.

You can guess what happened next. The insurance company for one of the parties - Mid-Continent -didn't post for one of the parties. Originally, the other defendant (now the plaintiff, really) sought attorneys' fees and costs but quickly realized he was not reaching far enough, and asked for a default judgment in the amount of one million dollars. Judge granted the motion. The question was: can the settlement judge do that?

Continue reading "New Sanctions Opinion" »

Subway just got hit with a lawsuit alleging that its foot long subs are not actually a foot long. Plaintiffs who ate what is probably an 11 inch sub, are seeking money damages for their injuries. The case was filed in New Jersey.

I stick pretty close to personal injury related issues here. So why am I writing about a frivolous lawsuit claiming that a foot long sub is not a foot long? Because I think it is related. Lawsuits like this - and celebrities that sue for every possible slight - really sends a message to people, who later become jurors, that the judicial system is not often a place for serious justice. So when an injured plaintiff begins a trial, she does not begin on the 50 yard line. She starts deep in her own territory. That's not an impossible mission for a worthy plaintiff by any stretch - people flip quickly when they learn facts. But it makes the hill a tougher climb and it can change the way they value personal injury cases.

Subway says the word "footlong" should not be taken literally, as it is a trademark and "not intended to be a measurement of length." But they are misleading people. They misled me. I thought it was a foot long till I read this story. But consumers who think like me have two reasonable choices: (1) decide not to buy the Subway subs because they are mad at the false advertising, or (2) remain annoyed but say, "Hey, Subway is not perfect, I don't think many big companies are, but I think make a good sandwich and I'm going to eat it." (I pick the latter. Subway makes a good low fat sandwich, albeit with a ridiculous amount of sodium.).

Continue reading "Subway Footlong Lawsuit" »

I'm fortunate in that I don't get many headaches, a blessing I attribute to good hydration and genetic good fortune. On the rare occasion that I do get them, they are debilitating. It is really hard to enjoy much of anything in life with anything north of a mild headache.

Juries struggle in figuring out how to value personal injury cases when the primary injury is a head injury that caused, and may be continuing to cause, headaches.

Why? Because headaches are largely subjective. So the credibility of the plaintiff - which is usually 90% of the game at trial - becomes the entire game because you can't know the pain level inside someone's head. Instead, you have to decide if you believe that their report of pain is what they say it is.

According to Jury Verdict Research, the average verdict for headache injuries is $33,423. The median verdict is $11,092. Putting this in context, the average award in a personal injury case nationally is approximately $791,756. So verdicts in headache cases are 5% of the national average? Wow.

Juries are more inclined to believe older people... or they think young people should just deal with it. The median award for those under 18 was a $7,463. For plaintiffs between 19 and 39, the median award was $8,858. Once you get over 60, the awards rise to $13,454.

Continue reading "Settlement Value of Headaches in Personal Injury Cases" »

We should probably have a subsection for cross-examination materials in our Litigation Strategies category. But we have a lot of materials both on the web site and on the blog that I think are of interest if you are preparing a cross:

• Lots of sample cross (and direct) examinations
• David Ball on Damages: Cross-Examination of Experts (the "one" thing that - and this is a bold statement - always works when crossing a defense expert)

• Cross Examination of Truck Driver (we got $1 million verdict in the case based largely on this cross)
• Cross Examining Insurance Company's Medical Expert (fighting the fight on financial bias)
• Cross Examining IME Doctor on Bias (yes, we beat the financial bias drum hard)
• Cross Examination Thoughts from John Bratt (more on, ah, bias discovery for cross)
• Preparing Witnesses for Cross
• Great story of a recovery when you can't touch the witness on cross

• Cross Examining Experts (thoughts from Dorothy Clay Sims who pretty much makes a living running around and crossing experts)

One of my 2013 resolutions is to stay on top of - and hopefully write a post on - every single new personal injury related opinion written by our state appellate courts this year.

I have stuck to this resolution although, arguably, I have been aided by the fact that there have been no new Maryland personal injury appellate opinions yet this year. But stay tuned.

I'm a big fan of science. I would think there would be one best way to approach a personal injury case. But I'm always amazed at how trial lawyers with such unbelievably different approaches and different styles can be successful. But it is not just trial lawyers. If you look at the best of the best among politicians, musicians, actors, athletes, mathematicians, you name it, they are all different and approach their craft very differently, albeit with some common treads.

The same is true with insurance companies. I think, for example, State Farm and GEICO have unbelievably different business models when it comes to running their business... including their approach to handling personal injury car accident claims.

One of my jobs here is to discuss strategy with our lawyers with respect to the cases they are handling in litigation. It is one of my favorite parts of the job: I'm providing strategy and tactical advice without having to do the heavy lifting. Whether it is an accident or a medical malpractice case, one of my first questions is, "Who is the insurance company?" (and "What are the policy limits?). Because you have to have some idea of who you are dealing with in trying to settle the claim or even when you know you are going to try the case.

State Farm and Nationwide, for example, could have have different approaches to personal injury cases. At Nationwide, a verdict that exceeds the policy limits by a $1 is a federal case. Alarms go off, file audits are conducted, and the world gets turned upside down. At State Farm, they call a day like this Tuesday.

Below, I have analyzed the insurance companies/adjusting companies we deal with in 97% of the motor vehicle accident cases we handle:

• Allstate
• Ameriprise
• Chubb Insurance
• Cincinnati Insurance
• CNA
• Encompass
• Erie
• Farmers Insurance
• Gallagher Bassett
• GEICO
• Liberty Mutual
• MAIF
• Nationwide
• Paramount
• Progressive
• Safeco
• Sedgwick
• Selective Insurance
• State Farm
• The Hartford
• Travelers

Continue reading "Advice on Negotiating Car Accident Claims with Each Insurance Company" »

An opinion in the U.S. District Court of Maryland last week began like this:

This case is rooted in a hunting trip in South Africa, during which Dennis Danner, Alexander Danner, and Michael Coletta, plaintiffs, each killed a “trophy quality” male lion. The lion skins and skulls (the “Lion Trophy” or “Lion Trophies,” or “Cargo”) were shipped to the United States for tanning and taxidermy, but at some point were lost in transit. The Cargo was found several months later at a warehouse in Vancouver, Canada. By that time, two of the Lion Trophies had suffered irreparable damage, allegedly due to exposure to moisture and bacteria.

Oh, my. Plaintiff's hunting trip with his son cost $250,000. He sued the freight companies for nearly $100,000 because not bringing home these dead lions just ruined all of the fun.

Judge Ellen Lipton Hollander knocked the claim back to a whopping $3,302.91, finding that the Montreal Convention imposing strict liability for damage to or loss of cargo applied to the case. (No, I don't know anything about the Montreal Convention either.)

The court was also presented with an interesting legal issue as to whether the federal common law collateral source rule applied when there is not tort liability. Defendants argued that since Plaintiff was compensated for his loss to the tune of $47,000 in insurance proceeds, he should not be permitted to recover anything. Judge Hollander disagreed and found that the collateral source rule does apply, finding that the logic of rule still applies and the defendants should not be the "gratuitous beneficiaries" of an insurance benefit that Plaintiff purchased.

My sources tell me that the defense lawyers failed to make the more obvious argument: anyone who would blow $250,000 to go shoot, kill, and stuff Mufasa and Simba don't deserve access to an equitable doctrine like the collateral source rule.

You can find the court's opinion in Danner v. International Freight here.

Trying to successfully resolve clients' medical liens has to be one of the most difficult challenges facing personal injury lawyers in large cases. I have had many cases where the hardest part of the case was not getting the settlement or verdict' but getting the medical liens resolved. It also can be most frustrating because while defense lawyers take a lot of crazy positions in our cases, the threat of an eventual trial usually allows logic and reason to surface. In dealing with medical lien holders, logic and reason and even their own economic interest are rarely prominent players in the mix.

Most of these frustrations are shared only among plaintiffs' lawyers and their clients while the rest of the world worries about their own problems. Which is why I have enjoyed watching the U.S. Supreme Court wrestle with these issues in Delia v. E.M.A.

At the center of this tragedy sits an oblivious twelve year old girl who lives - peacefully, I pray - in Taylorsville, North Carolina. As a result of medical malpractice during delivery by a doctor who had a history of drug abuse, and surrendered his North Carolina medical license, she has severe mental retardation and suffers from a seizure disorder. She is deaf, blind, unable to sit, walk, crawl or talk.

[Brief intermission: You know, I'm writing about this case because these lien issues impact a lot of people. This matters to people who are really suffering and really deserve justice which is money damages in our judicial system. And I can't tell you how often I drive by the most horrific facts in a case, digging for some teachable point on the collateral source rule, without giving it much thought. I like myself 15% less than I otherwise would because of this, but what choice do we have? Become immersed in every case that we read and put ourselves in the shoes of everyone suffering? But, this one today just gets me and I'm finding myself imagining being in the shoes of every single person in this tragedy.]

The case settled for $2.8 million. Of course, the settlement agreement did not - because it really can't - allocate separate amounts for past medical expenses and pain and suffering and other damages. North Carolina's Medicaid claimed its one-third lien. The law allows the state to take the lesser of either the total amount of the lien or one-third of the court-ordered malpractice payment.

The one-third rule has a real upside: it is easy. Bright line rules are always that way. But as the Supreme Court told us in Arkansas Dep't of Health & Human Serus. v. Ahlborn, pure bright line justice is not acceptable and the sum allocable to medical expenses must be determined by some sort of reasonable process before the state can recover on its claim. The 4th Circuit agreed, overturning the North Carolina law because North Carolina statute’s one-third cap on the state’s recovery against a Medicaid recipient’s settlement proceeds did not satisfy Ahlborn because there was no showing that the settlement proceeds were intended to compensate the plaintiff for that amount of the medical claims. Accordingly, the case was remanded to the trial court for an "evidentiary hearing" at which the district court would figure out how much DHHS should get.

Continue reading "Supreme Court Looks at Medicaid Liens" »

Every now and again I read a publication called "Physician Risk Management." Billed as a publication to help doctors minimize liability and protect them from lawsuits, it is a well written publication written by people who actually do seem to know what they are talking about.

Here is why I don't like it. It is just not self-conscious enough about its own motives. An example comes from this month's article "Defend non-compliance with guidelines in chart." The article begins by repeating the title. The next sentence is, "The plaintiff’s attorney will use it against you."

This is all fine and good. Doctors sometimes should deviate from clinical guidelines and they should explain why they did not conform to them. And, yes, plaintiffs' medical malpractice attorneys are going to shove it down their throat if they do not document their deviation and the basis for it.

Fair enough. But could they at least mention in a footnote that what they are aking the doctor to do is also 100% consistent with what you are supposed to do to, you know, properly care for a patient? Isn't one of the key purposes of medical records in the first place to determine upon the appropriate course of care and provide rationale for that care to both document the treatment and explain the care to future doctors treating the patient?

The article quotes a neonatologist, Dr. Jonathan M. Fanaroff, who is both a doctor and a lawyer, to make the point. “It is important to show both your clinical reasoning and also that there was an adequate reason to deviate from the guideline." (Note to my four children: if you can get a gig as a neonatologist, don't dampen my joy by becoming a lawyer, too. Please.)

No kidding, really. In fact, as I started reading the article, I thought maybe the doctor was being quoted out of context talking about good patient care. But then the doctor goes on to describe a Mississippi case from 2006, Vede v. Delta Regional Medical Center 933 So.2d 310 (Miss. Ct. App. 2006), that ostensibly proves this point.

This was a case where the plaintiff developed a decubitus ulcer - a bed sore - allegedly as the result of hospital's negligent failure to turn the plaintiff at regular intervals, which the standard of care requires to prevent a bed sore. But the doctors at the hospital had a good reason for failing to turn the patient: they found that he was struggling with airway clearance and were afraid of a fluid volume deficit and an infection from the turning based on the patient's specific case.

This is such a straw man. We all agree these could all be good reasons in a specific case to turn the patient less frequently (although, geez, I wonder about informed consent on a call like that). We can all also agree that writing it down makes it seem less like you are making excuses in hindsight for negligent care if you spell out what you are doing in the first place. But couldn't the article - albeit short - point out that this weapon to fight off medical malpractice lawsuits is not the endgame, but just a happy byproduct of properly caring for and treating patients.

Continue reading "Physician Risk Management: Is a Doctor's Purpose Just to Avoid Malpractice Lawsuits?" »

The 4th U.S. Circuit Court of Appeals on Thursday affirmed a summary judgment ruling dismissing a trucking dispatching system manufacturer from a personal injury accident lawsuit. The court ruled that the company could not be responsible for a crash allegedly caused by a texting driver.

Really interesting facts are presented in this case. Plaintiffs' lawsuit arose from a truck crash on Route 40 in North Carolina. The defendant driver in his loaded tractor-trailer rear-ended a number of cars in front of him. Rear end truck accidents are probably the least likely to cause a death. Tragically, this was a relatively rare exception. One of the plaintiffs' infant children was killed.

Plaintiffs sued the usual suspects in a truck accident case but also sued a company that made a texting system located in truck. Plaintiff valiantly made two arguments: (1) the texting system required the truck driver to take his eyes off the road to view an incoming text from the dispatcher, and (2) permitted the receipt of texts while the vehicle was moving.

The logic is pretty simple. I can't use the GPS in my car when the car is moving. But, ultimately, the trial court found that the only legal proximate cause was the driver's inattention to the road, not the texting device itself.

Ultimately, it is hard to argue with the court's logic. The world is rich with potential distractions. It is the driver's responsibility to avoid those distractions.

You can find the court's opinion in Durkee v. Geologic Solutions Inc. here.

• Maryland Law on Texting and How Accident Lawyers Approach Cases Where the Defendant Was Texting
• Overstating the Texting While Driving Case
• Cell Phone Related Accident Statistics in 2009
• Stopping Texting and Handheld Phone While Driving
• Text Messaging While Driving

These were the five most popular posts on the Maryland Injury Lawyer Blog in 2012:

• Strict Liability for Pit Bulls in Maryland: this had an astounding 168 Facebook likes and just a ton of comments.
• The Internet Hates Progressive Insurance.. But Should It?: lots of visitors here from a Washington Times link.
• Insurance Claims Adjusters Say the Silliest Things: this got a lot of interest because, well you know, insurance adjusters do say the silliest things.
• Progressive Insurance = Just File Suit: my argument that it is largely a wasted effort trying to settle with Progressive Insurance until suit is filed.
• Sneaky Medical Malpractice Defense Lawyer Tricks: I think this resonated with many plaintiffs' lawyers because the games played in malpractice cases are so over-the-top. Lots of really good lawyers handle malpractice cases at some pretty low hourly rates. Arguably, some of them make up some of the difference by working the file 8,543 ways to Sunday to churn the file.

Continue reading "Maryland Injury Lawyer Blog's 2012 Best" »

Jury Verdict Research has some interesting data on which injures comprised the largest proportion of cases in which the victim was awarded over $1 million. Here is the category followed by its relative percentage of million dollar verdicts:

• Death - 28%
• Brain Damage - 14%
• Leg Injuries - 6%
• Spinal Nerve Injuries - 6%
• Disc Damage - 5%
• Emotional Distress - 5%
• Paralysis - 4%
• Arm Injuries - 2%
• Cancer - 2%
• Foot Injuries - 2%
• Sexual Assault - 2%
• Vertebra Injuries - 2%
• Other Injuries - 22%

Did you see any major surprises here? I didn't except for seeing leg injuries with 50% more million dollar verdicts than paralysis injuries. Thankfully, I think this might be most attributable to the fact that paralysis is, relatively speaking, a rare injury in a car accident.

Where are the million dollar verdicts geographically? The Southwest - comprised of Arizona, California (which I suspect did a lot of the heavy lifting to push these numbers), Colorado, Hawaii, New Mexico, Nevada, and Utah - has the highest percentage of million dollar verdicts with 19%. The Northwest - with Alaska (which generally has high awards actually), Idaho, Montana, Oregon, Washington, and Wyoming has the lowest percentage of million dollar verdicts at 7%.

Continue reading "Where the Million Dollar Verdicts Are" »