Articles Posted in Litigation Strategies

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Comp and personal injury

Do you have both a comp claim and PI case?

Many of our personal injury clients bring both a regular civil claim and a workers’ compensation claim.  Yet we get calls every week from someone who has an otherwise valid tort claim that may not bring that claim because of the workers’ compensation law.

Obviously, two claims are better than one.  This post explains the types of cases in which you can bring both claims and those you cannot and why.  Continue reading →

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We have rejected a number of tort cases because Medical Assistance made payments for the victim’s outstanding bills. Why? Because the state simply refused to significantly reduce (or at all) its lien to account for attorneys’ fees. Sure, DHMH could reduce or waive their lien if it will cause “substantial hardship.” But “substantial hardship” was not defined and I think we had a very different definition than the subrogation folks at Medical Assistance.

It might sound a little heartless but it is the exact opposite. The Medical Assistance problem did not impact our attorneys’ fees but did have a real impact in how much money the client could recover in the case. If we don’t think we can make the client happy at the end of the case, we are not going to pursue the claim, regardless of how much money we think we can make on the case.

But things are now a lot better because of new rules that have adopted by the Department of Health and Mental Hygiene and codified as COMAR 10.09.83. Pursuant to these new regulations, the state will now allow for attorneys (I’m not sure about pro se plaintiffs, I need to read it again) to negotiate a reduction in the lien to account for the victims’ legal fees.

This new plan is not a straight reduction and it certaintly seems to provide greater relief in larger cases. The formula is a little bit complicated but one thing is clear: there will be reductions of Medical Assistance liens in almost every tort case. This will be good in almost all Medical Assistance cases… and will be great in some.

(I knew this rule was coming, but I’m embarrassed to say that this rule came out at the end of May and I’m just learning about it now. What? You didn’t know about it either? I feel better.)

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This is a pretty good blog post on storytelling, which is useful to any lawyer giving an opening statement.

Nothing earth shattering but good advice. The one thing I would add is what most lawyers don’t do: talk in the present tense. People just listen better when the speaker is not using past tense.

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Lawyers always argue over anything where there is not black and white set rules. (Actually, we argue when there are set rules, too.)

No one exactly knows the rules of the sequences of discovery because the rules are whatever the motions’ judge says there are. So lawyers take positions on these issues with varying degrees of reasonableness.

A new Wisconsin cases is illustrative of this issue. In Dauska v. Green Bay Packaging Inc., the defendant filed a motion for sanctions and to compel the deposition of the Plaintiff who refused to be deposed. Why? Plaintiff’s attorney refused to allow his client’s deposition until he received discovery responses from the Defendant. Plaintiff’s lawyer did not file a motion for a protective order but did make it clear his client would not appear for deposition.

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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:

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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 always 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.

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The issue of pre-impact fright is a big deal in wrongful death car accident cases in Maryland.

Why? Well, in non-malpractice cases we have a cap on wrongful death claims and a cap on survival actions. In Maryland – I know some states have it reversed – the survival action is the victim’s loss: his medical bills and pain and suffering damages. It is the only claim in the victim’s own right for the wrong done to them. Under this law, if you shoot a guy in the back of the head without him seeing you coming, there is no survival action. Like the cap itself, this is a dumb law. (Fill in here your own rant about how misguided the cap is. I’ve done it here many times before, but the subject is inexhaustible.)

This matters because juries are not stupid. They want to compensate the victim in their own right and, accordingly, tend to inflate the value of pre-fright impact to make up for the fact that the law foolishly ignores the victim. My partner tried a case once where the jury awarded $3 million for pre-impact fright when the victim uttered an expletive before he died (the driver lived and testified at trial).

Anyway, trying to blunt some of the stupidity of this law, the Maryland Court of Appeals in Benyon v. Montgomery Cablevision in 1998 told us that you can recover in a survival action for mental anguish when you see what turns out to be your death coming. The court found that in survival actions where a decedent has “great fear and apprehension of imminent death before the fatal physical impact, the decedent’s estate may recover for such emotional distress and mental anguish as are capable of objective determination.”

Of course, the problem with pre-impact fright is it is wrought with evidentiary challenges. What did the dead guy think before he died? But the Maryland courts have shown some flexibility on this, in this case and, more recently, in concluding that a boy who drowned suffered in spite of the fact that there was no evidence of this other than the correct application of common sense.

Regrettably, South Carolina went in another direction last week, ruling that there was no evidence to support a conscious pain and suffering claim in a fatal automobile accident case.

There are two issues that the parties addressed in their briefs. First, how much proof do you need to show to prove conscious pain and suffering (which Maryland addressed in the drowning case I just mentioned) and this question of pre-impact fright. The court largely dodges the issue because this case was not well plead – the plaintiff’s lawyer did not even bring a survival action although – adding to the complexity – they settled with other defendants on a survival action that was never pled). Instead, the court refuses to get down in the weeds of the facts of this case and punts on what South Carolina should do in the future.

How boring for us. So let’s look at the defendant’s argument in the case.

    In South Carolina, the cause of action for physical injury survives, even if the injured person does not, and the established law of South Carolina recognizes pain and suffering as damages in such a survival action, but the law requires that it be proven and that it be consciously suffered. Camp v. Petroleum Carrier Corp., 204 S.C. 133, 28 S.E.2d 683 (1944). Speculation is not allowed. In Camp, the evidence considered by the Supreme Court was that a man was heard groaning from within a car before he died of injuries sustained in the wreck. There was no evidence, however, that he was “conscious of pain and suffering.”

What? You had a guy who gets in an accident. Before he dies, he is groaning. Now which is the more likely scenario: he was suffering or he was not suffering? Let’s get Nate Silver or someone to poll people about which one is more likely. I bet 90% say it is more likely that he suffered before he died. Underscoring its credibility, the defendant also signs off on- get this – the idea that evidence that a shooting victim crawled away leaving eight foot trail of blood and clutched leaves and pine needles to his chest wound does not rise to proof of conscious pain and suffering. I kid you not.

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U.S. District Court Judge William M. Nickerson remanded an asbestos case back to Baltimore City Circuit Court, rejecting defendant’s efforts to remove the case to federal court because the defendant had joined non-diverse defendants.

The case is one of many asbestos cases on the docket in Baltimore City. Plaintiff alleges her mesothelioma was caused by exposure to asbestos from Colgate’s talcum powder. In answers to interrogatories, plaintiff identified Colgate’s Cashmere Bouquet talcum powder as the sole source of her asbestos exposure. In her June 2012 deposition, Barlow testified that she did not believe she suffered any other exposures.

There is a one-year limit on removal unless the court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” Colgate tried to push the “unless” part of that rule, claiming the joinder was fraudulent.

The judge chided Colgate’s lawyers, saying he really was not sure what their argument was, but eventually assumed that Colgate was claiming that plaintiff had no intention of pursuing her claims against the Maryland defendants. But showing that a plaintiff did not intend to pursue a joint judgment is insufficient. Instead, Colgate had to show show that plaintiff has no intention of pursuing her claims and that no colorable ground for claiming such an intention existed. Because Colgate’s attorneys did not even really make an effort to do this, Judge Nickerson easily remanded the case back to Baltimore City. Which, is exactly where the plaintiffs want to be.

I’m pretty good at tracking Maryland state appellate opinions. I need to do a better job of keeping an eye on these new federal court opinions.

You can find the court’s opinion in Barlow v. John Crane here.

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Serious personal injury cases, where pain and suffering damages are high but less than the cap on non-economic damages, are the hardest claims to value and the hardest cases to settle without filing a lawsuit. Almost invariably in these cases, I’m telling my clients that the value of the case is likely to be higher after filing suit than the insurance company’s best pre-suit offer. The facts bear this out. I would estimate that our clients do better filing suit in 98% of the cases we file.

Why is that? On one level, there is a greater ability to generate comparables – “comps” to use the lingo” – in personal injury cases than there is in accessing, say, the value of real estate, where you have few comps because you are limited by tight geographical locations. I mean there have been about five zillion herniated disc cases with a laminectomy and fusion at C4-C5 where the client had not prior injury or degeneration. Why isn’t there just a well established value for that?

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I rarely write about criminal cases because I find criminal cases uniquely depressing and because they rarely relate to what we, as personal injury lawyers, are doing. Venus and Mars. I have no idea how to handle a criminal law case and criminal lawyers have no idea how to handle a personal injury case. Yet, annoyingly, criminal lawyers think they do, which is why I’m constantly getting calls from potential clients complaining that a mostly criminal lawyer is screwing up their accident claim. (Did I just say that in my out loud voice? Sorry.)

But this Maryland Court of Appeals case decided last week – Maryland v. Thomas – addresses two issues that are of interest to all trial lawyers: (1) what to do with jurors who – for good reasons and bad don’t want to be on the jury, and (2) under what conditions do appellate issues arise from juror communications to third parties – notably, in this case, with the court.

The defendant in this case was convicted of second degree depraved heart murder after a stabbing outside of a Baltimore County night club. I forget exactly what “depraved heart” means, but it does not sound good. The Court of Special Appeals reversed defendant’s conviction, finding that while the evidence was sufficient for the jury to convict, the trial court committed prejudicial error when it failed to promptly notify the attorneys of a communication between the trial judge’s secretary and one of the jurors. Apparently, the juror called the secretary and he wanted to get the prosecutor’s home number to ask her out. The judge thought this was no big deal.

Okay, I’m making that up. That would be over-the-top. This problem was far more nuanced. After the juror at issue was chosen, the juror told the judge and the lawyers that his grandmother is 89 years old and is expected to die any minute. The juror also made clear that he just had to be at the funeral if there was one and otherwise fully intended to serve.

The juror’s grandmother dies. Baltimore County Circuit Court Judge Michael Finifter reveals a note from the juror requesting off the jury to assist in preparing for his grandmother’s funeral. The judge also advises counsel that the judge’s secretary had been contacted by a member of the juror’s family to tell him about the death of his grandmother. The juror apparently said, without the lawyers present or notified of the issue, that he would be able to continue. These conversations took place before the alternates were discharged. Subsequent to this, the juror changed his mind, and once again requested to be excused.

Now the court is in a box and the defense attorney is mad that he was not made aware of the discussions with the juror. The judge refused the juror’s request to be excused. The defense lawyer – who probably saw the conviction coming – sought a mistrial which the judge denied.

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