Articles Posted in Legal News

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UBThe U.S. News and World Report rankings came out today.   It was not a good day for the University of Baltimore School of Law: ranked #135 among U.S. law schools.

Of course, this post is going to assume that U.S. News & World Report is relevant to anything.   When was the last time you paid a moments attention to this magazine that did not involve looking a school rankings.  The answer is probably 10 years ago.  But, it certainly is because people care about it.  But whether it is a reflection of quality is anyone’s guess.

What Happened?

I don’t know.  You have to appreciate that the University of Baltimore School of Law has been on a crazy roll in recent years.   After falling and falling, its ranking with U.S News had been soaring higher each year.   But the real kicker is the new building they opened last year.  The old UB was a rat hole.  We can say that now. It really was.  The new building is just stunning.  It has anything you could ever want to teach or to receive an education in, and do it in style.  Even Above the Law, which has snarky commentary on the color of the sky, had good things to say about the design of the building.

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PitbullOne of the most highly commented blog posts I have had here was when the Maryland Court of Appeals decided Tracey v. Solesky, one of the rare appellate opinions that seemed to make everyone mad.  Tracy decided to carve out a pit bull exception and make pit bull owners pretty much strictly liable.

Everything in this case was goofy.  The court even came back with an amended opinion – how often does that happen? – to say that mixed breeds are not strictly liable which, theoretically, would make the key to the case the tracing of the dog’s blood lines.

Pit bull lovers and owners pretty much demanded that the Internet be shut down.   Their passion – and their statistics – actually forced me to do something that is rare on the Internet: change my opinion in midstream.  Whoever said screaming at someone on the Internet can’t change hearts and minds?

This passion pushed the Maryland Senate last week to unanimously pass a bill that eliminated breed distinctions.  Which, is bad news for victims of pit bull attacks (and, let’s face it, plaintiffs’ lawyers).  The Senate bill throws a bone — literally no pun originally intended until after I wrote it — to victims by creating strict liability for canines who attack while running at large.  But, let’s be honest, that is not the majority of pit bull attacks.  An estimated 70% of dog bites occur on the owner’s property.

The one thing that struck me about the anti- Tracey opinion zealots is that they did not generally oppose strict liability on dogs.  There seemed to be some receptivity to the idea that the problem in dog bite cases is not bad dogs but irresponsible dog owners.

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marijuana

Plaintiff should have used marijuana?

People get in car accidents and they get badly hurt.  So insurance defense lawyers end up making some crazy arguments.  But in  Glesby v. MacMillian, a Maryland car accident case, the defendant reached a new height of insanity: arguing that the plaintiff should have used marijuana to mitigate her damages.

(Okay, okay… this is not an actual Maryland case.  And, right, it is not even in the U.S.   It is Great Britain in British Columbia.  (That’s Canada? Oh.) Anyway, forgive me.  The story was just a lot more fun that way.  Sorry.)

How This “You Should Have Taken Marijuana” Argument Came to Be

Glesby involved a 28 year-0ld woman who got rear-ended.  Pretty common set of facts.  She racks up about $17,000 in bills.  (That’s Canadian money.  My sources tell me they are too proud to use our money so instead they using money with the Queen of England on it.  Perplexing.)

Okay, enough of the stand-up act which I’m not great at anyway.  The plaintiff files suit in the Supreme Court of British Columbia, which sounds fancy, but it is really just their trial court.  It is a bench trial.  Plaintiff claims continued discomfort in her neck, shoulder, and upper back after the crash.  The Defendant argues that the Plaintiff’s injuries would not have been as bad if she had taken medical marijuana.

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jurorsCan you strike a juror based on sexual preference?

This week, the 9th Circuit took this issue on.   SmithKline Beecham v. Abbott Laboratories is a case of two giant drug companies fighting each other over what I’m sure is already obscene profits involving the sale of an anti-HIV drug.  In the suit,  GlaxoSmithKline  accuses  Abbott Laboratories of antitrust, contract,  unfair trade practice (UTPA) claims, and instigating World War I by shooting the archduke.  The usual stuff.

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angryman1If you badmouth an out-of-state company on the Internet, are you subject to personal jurisdiction in the state where the company resides?

In Fertel v. Davidson, a federal court in Maryland was given this interesting question with an interesting set of facts.   A 52 year-old artist who was in a troubled marriage in California purchased a “Marriage Fitness Tele-Boot Camp” program for a Maryland company called MarriageMax.  The opinion suggests that this program costs $400.   It comes with a “if you are not satisfied for any reason, you can get your money back” type guarantee. Continue reading →

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malpractice law

Are they really going to settle these Subway foot long lawsuits?

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.).

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I read a few opinions last week that did not rise to to the level of a full post on this blog but are still worth noting:

  • Illinois State Bar Association Mutual Insurance Co. v. Greenfield(Illinois):: Lawyer screws up a will and does the right thing, writing a letter to the beneficiaries informing them of the mistake. Legal malpractice insurer says that by failing to inform it of the letter before sending it, Greenfield violated a condition of his malpractice policy and refused to provide him a defense to the legal malpractice claim that ensued. “What a jerk move,” an Illinois appeals court said, finding the malpractice carrier could not bail on their client. (Please note: I might be paraphrasing.) Anyway, if you have insurance through ISBAMI, keep in mind they will pull this kinda garbage on their clients who try to do the right thing.
  • Bougere v. Northrop Grumman (Louisiana): wrongful death claim’s statute of limitations begins to run not from asbestos exposure but from decedent’s death. Maryland would rule similarly.
  • New York v. Appellate Judges: I was amazed that New York voters dumped three appellate judges. In Maryland, we just rubber stamp these things.
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A Florida judge was disqualified from a wrongful death tobacco case after comparing the defendant’s former CEO to Nazi war criminal Josef Mengele.

No brainer decision? I’m not so sure. Here is what happened. During trial, a hearing was held outside of the presence of the jury on whether a 1971 – remember 1971 – videotape of Philip Morris’s CEO Joseph Cullman should be admissible at trial. In the video, the CEO says that lower birth weights caused by smoking may actually be better for women who “might prefer having smaller babies.”

All right, so exactly what is the appropriate response. “Gee, that remark is unfortunate,” probably does not quite cut it. So the judge took it a little further, comparing the remark to Dr. Josef Mengele who conducted some of the most evil experiments on humans in modern times at Auschwitz. Continue reading →

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In Bailey Lumber & Supply Company v. Robinson, the Mississippi Supreme Court reversed a $1 million award in a slip and fall case, finding that while plaintiff’s medical expert – an internal medicine doctor – could testify about the plaintiff’s hip problem, he did not have the expertise to offer the opinion that the slip and fall aggravated the man’s osteoarthritis, necessitating hip replacement surgery. This opinion is a good reminder for personal injury lawyers in Maryland that, when in doubt, make sure you have an expert that is qualified to give the opinions you need at trial.

This case is a pretty good slip and fall case on liability for the plaintiff. Defendant operated a building-and-lumber-supply retail store. Plaintiff needed paint. Defendant’s employee says, “Follow me back to a dark, creepy and dangerous room” (I may be paraphrasing) that was for employees only. The room was dimly lit and plaintiff tripped over a two-inch step in the threshold of the doorway between the two rooms. Plaintiff says defendant’s employee said we “should have fixed that floor a long time ago.” (To me, this sounds made up.) Plaintiff drove himself home.

I’m not feeling a million verdict at this point. Are you? Oh, yeah, and he has osteoarthritis, eventually necessitating hip surgery. Continue reading →

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As the Maryland appellate courts continue their summer of personal injury enuni, we turn our attention to a uninsured motorist case issued by the Supreme Court of Rhode Island, in New London County Mutual Insurance Company v. Karoline Fontaine. This opinion works through some issues about uninsured policy provisions, something we find ourselves doing quite frequently at Miller & Zois in our sometimes mad quest to find insurance coverage to get our clients compensated for their injuries.

The facts on this one are both simple and tragic. A husband and wife were on their motorcycle, and got into a collision. As is too often the case in motorcycle accidents, the husband was killed. The accident was not the couple’s fault, which is also often the case in fatal motorcycle accidents. But, of course, that is little consolation to the man’s family.

Neither the other vehicle nor its driver was insured. The motorcycle was insured by a policy with Foremost Insurance Company, and Foremost paid the full $100,000.00 under the uninsured motorist provision. Continue reading →