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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.

So what happened? Well one thing that happened is Dean Philip J. Closius left.  Why?  I never fully understood or bothered to get my mind around all of the details.  But I think I can distill it down: money and ego.   It seems that most everyone involved had way too much of the latter, including Deal Closius himself.  But I’ll tell you what the guy could do: raise money and push our rankings with U.S. News north.   Now, was our ranking all that high?  No.  But the key was we were moving in the right direction and people were getting excited.  We peaked at #113 two years ago which was after Closius left but probably reflecting his work.    Now we have back-to-back falls in the wrong direction: #134 last year and #135 this year.

I was depressed when he left, so much so that I offered to donate $10,000 to UB if they brought him back. But the bridge had been burned on both sides and that was that.

Now we have a new dean at U.B. Ronald Weich, a former Assistant Attorney General for Legislative Affairs at the Department of Justice.   While I’m hardly an inside player as someone on the adjunct facility who had never even met the new dean, I do talk to students and other professors.  By all accounts that I have heard, Dean Weich is up to the task.  He smart, he cares about what he is doing, and he is determined for the school to succeed.  He also wisely is playing to UB’s strength: teaching practical skills that get students ready for the bar exam and for the real world.

But I have to think that the transition alone – having to have an interim dean and getting the new guy up to speed – had a cost that we are paying for now.

Certainly, we can get back on the right path and we can use this building to market the school in a way that never could have been done before, that will bring in out-of-state students and just generally increase the quality of students coming into the school.  But we really have to hustle at this point and overcome this hit and get the momentum point back in our direction.

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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.

The Senate bill does not come close to making that leap.  The Senate bill is not a “one bite rule” but instead requires that a dog has shown a past propensity for violence, such as aggressive behavior.  What is aggressive behavior that stops short of a bite?  Ah, the proposed law would make judges and juries try to figure that one out.   But the good news is that this is nothing new.  This law just codifies what has always been the law.

In case anyone is wondering, I believe the bill will be prospective.  So, assuming this bill passes and it will, there will be a period of strict liability for pit bulls between the Tracey opinion and this new law.

Random Opinion I’ll Deny I Ever Had

Let me say something now that I believe that goes against my interests as a plaintiffs’ lawyer: I don’t see the wisdom in putting the landlords on the hook in the vast majority of these cases.  It has a chilling impact on dog ownership which means more dogs being murdered at the pound.  Moreover, they are rarely negligently responsible for the harm that occurs.  Hopefully, no one can read this with the line through it.

Winners in New Bill

  • People who decry breed discrimination against pit bulls because the law would eradicate the distinction.
  • Pit bulls. The end of legalized dog discrimination.  I have to think this will help their overall self-esteem.
  • People who are bit by dogs at large.  These are certainly the most innocent victims, at least in a sense.

Losers with New Bill

  • Victims of pit bull attacks.  Proving your case will get a lot harder.
  • Plaintiff’s lawyers.  Let’s admit open season on pit bulls with a strict liability rule had far greater upside than getting strict liability for dogs who are at large who bite.
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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.

Sadly, for the comedic value of it, this argument did not come out of thin air.  Not one, but two of her treating doctors suggested medical marijuana which can be legally grown in British Columbia (until April 1st as it turns out).  So the defense lawyers jumped on her failure to comply with her doctors recommendation of using medical marijuana.

Wisely, the judge refused to find that the plaintiff failed to mitigate her damages by using medical marijuana.  The judge pointed out the doctors’ advice came late in the game and that the Plaintiff, who had never used drugs, had a good faith reservation about the wisdom of acquiring and using the drug.

What You Should Take Out of This Case

I wrote this post because it is fun.   Silly defense lawyer argues Plaintiff should have used drugs after her accident although admittedly the argument is slightly more nuanced.  But the lesson I would take from this case is that defense lawyers will take insane positions in discovery.  They don’t care how ridiculous the angle is.  They just push forward with reckless abandon.

Why do they take the risk?  They figure they can walk it back in trial.  How many times have you gone to trial excepting the lunatic that showed up at the Plaintiff’s deposition only to meet Ms. Smooth Agreeable Reasonable at trial?

But how can you use the Ms. Stone Nuts Crazy Lady at trial?  Here’s what you do.   You file requests for admission getting them to admit the painfully obvious.  Plaintiff was hurt.  Maybe that the Defendant got hurt if he was also hospitalized.  Ask the defendant to admit the facts in the statement she gave police.  It does not matter. Defense counsel will almost invariably deny these in a Pavlovian way they could not stop if they tried.  At trial, you read those requests to the jury.  In closing, you tell them the problem.  The defense of this case is that the sky is green.  They will say anything and do anything to win and they don’t mind insulting your intelligence and trampling on this Plaintiff’s right to justice to win.   It shows the defense for what it really is.

 

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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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The Maryland Court of Appeals rendered an opinion in Ross v. Housing Authority of Baltimore City last Friday that is important not only to Maryland lawyers handling lead paint cases, but to any plaintiffs’ attorney who is putting up an expert at trial. That’s all of us. The plaintiff in this case alleged that she had sustained permanent brain damage from lead exposure at two homes in which she spent her childhood. She enlisted the help of an expert witness to establish that the defendant’s building was the source of her exposure and her elevated blood lead levels. After the circuit court granted the defendant’s motion to exclude the expert testimony, the plaintiff appealed.

The circuit court’s decision was based on Maryland Rule 5-702, which reads:

    Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

The circuit court concluded that the first and third prongs were not satisfied. More specifically, the circuit court found that the expert, who was a pediatrician, was qualified to testify as an expert on pediatrics and childhood lead-poisoning but did not have the credentials to interpret lead test reports and to answer questions and give opinions on the meaning and significance of those reports. In regard to the third prong, the only factual basis for the testimony was a single positive test reading from a window sill from the second home.

The Court of Appeals agreed with the circuit court. Although the expert was a qualified pediatrician, she was not an epidemiologist or a toxicologist, and she had no technical knowledge regarding lead testing. The expert was not trained to identify lead hazards, nor did she have experience identifying causality with respect to relative exposure from various sources. The expert gave a general statement of causality that lead from the two homes caused some part of the plaintiff’s elevated blood lead levels, but could not specify how much of that increase was attributed purely to lead from the defendant’s property as opposed to lead from other sources, such as the environment. In addition, the court also agreed that there was no factual support for the testimony.

Finally, the court determined that the testimony would not “assist the trier of fact to understand the evidence or to determine a fact in issue.” The expert not only failed to adequately explain why one of the homes was the source of the lead exposure, she also testified that she only identified the risks associated with exposure but relied on the Health Department to find the actual source. In addition, there was evidence indicating various other sources of lead exposure in the homes. Because the expert’s opinion ultimately appeared difficult to distinguish from a lay opinion, the court concluded that the testimony would likely confuse rather than assist the jury.

Next, the court examined whether summary judgment was appropriate. Because the expert testimony was excluded, the circuit court granted summary judgment to the defendant due to lack of evidence as to causation. To establish causation, the plaintiff must prove that the defendant’s negligence was a “substantial factor” in causing the plaintiff’s injury. In cases involving exposure to lead, the plaintiff must show a link between the defendant’s property and the lead exposure, a link between the exposure and elevated blood lead levels, and a link between the increased blood lead levels and the plaintiff’s injury. Here, the plaintiff had to establish that the home was a source of lead exposure, that the exposure contributed to her elevated blood lead levels, and that the increase was significant enough to contribute to her injuries. Expert testimony in this case was crucial to demonstrating the first link. In particular, the expert testified that the defendant’s property was the source of the plaintiff’s lead exposure.

However, the court stated that even if expert testimony was not available, causation could still be determined using circumstantial evidence. The plaintiff only needs to have evidence that “amounts to a reasonable likelihood or probability rather than a possibility.” Although the plaintiff could no longer use the expert testimony to establish the three links, she could still rely on circumstantial evidence such as the lead investigation reports and other discovery materials. As a result, the court concluded that summary judgment was not appropriate and remanded the case for further review.

You can read the full opinion here.

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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.

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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.

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