Articles Posted in Truck Accidents

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depressed manIn Young v. Swiney, the U.S. District Court of Maryland was presented with an interesting, albeit depressing question: Can a suicide, two years after a truck crash, be causally related to the accident?

The Facts

There was no dispute as to liability.  The defendant trucking company sought summary judgment on plaintiffs’ wrongful death claim, alleging that there was no evidence that a reasonable jury could rely upon to establish this suicide, two years after the accident, could be causally related to the crash.   Defendant also sought summary judgment for economic losses after the suicide claiming that his death was, “a superseding and/or intervening cause” of his death that acts as a bar to future economic losses.   As creepy as that argument is, it does logically follow that that if the crash did not cause the suicide than the economic losses should, as a matter of law, be terminated as well.

Sometimes, the injuries from a motor vehicle collision can set a life that is on course, very much off course.  I’ve seen it happen too many times.  As plaintiffs’ lawyers, we often forget we are seeing people at possibly the worst moment of their lives.  The decedent’s life in this case fell right along this path.  His life got turned upside down when he was rear ended by defendant’s eighteen-wheel tractor trailer truck in Cecil County back in 2010.   Among his injuries, notably for what happened later, was a head injury.  He could not go back to work and got fired from his job because of the accident, because Maryland law inexplicably makes getting hurt in an accident a fireable offense.

He started seeing a psychologist after he lost his job.  He told his the psychologist that he was extremely depressed from the accident.  His temper flared easily, a common side effect of even a mild traumatic brain injury, to the point where his wife and two daughters had moved to Florida for a time to get out of his path.   Eventually, he killed himself.

Court’s Ruling

Clearly, courts are loathe to jump, wary of “such and such caused my suicide” cases.  The plaintiffs here would have close to zero chance of collecting a life insurance policy that claimed the accident was the true cause of the death.   There is a view, as the court pointed out, that suicide is a common law crime and bars any wrongful death claim.

Thankfully, Maryland law has not adopted this rule and utilizes the more flexible rule that it is a question of proximate cause given all of the facts and circumstances.   In this case, the plaintiffs’ are proffering a medical expert to opine that it is more likely than not that had this accident not occurred, this man would not have committed suicide.

My Take

Much earlier in my career, I was involved in the SSRI litigation involving claims that antidepressants were paradoxically causing some people to commit suicide.   The one thing I learned from meeting with some of the leading experts on antidepressants and suicide throughout the country is that suicide is a very complicated thing.   These are tough cases and plaintiffs here have not won — they just made it past summary judgment.  The trucking company is going to pick through this guy’s life and explain all of the other reasons why this accident was not the reason he committed suicide.

Still, in the final analysis, it boils down to this: would this man have committed suicide if this accident had not happened?  Granted, I know little about this case.  But you have to guess that with the man’s treating psychologist testifying that this is the driving cause, plaintiffs have more than just a puncher’s chance.

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On Monday, a man calls our office. He only has a few minutes to talk. He tells our intake specialist that his brother has been at Shock Trauma in Baltimore since the beginning of the month and that he was hit by a commercial vehicle. The man briefly describes his brother’s injuries as head, eye, shoulder, and ankle.

She didn’t get more details. But he has me, obviously, at “Almost a month and counting in Shock Trauma” and “commercial truck.” The majority of our large serious injury cases are truck accident cases. We set up a meeting with the brother for the next day in my office.

An hour before the meeting, the brother calls and says that the injury victim wants to be a part of the meeting, asking our intake specialist if we can move the meeting to the hospital.

I swallow hard. I’m simultaneously happy and miserable. Sure, I can now sign up the client directly. But I really hate hospital visits. Why? Because it makes me feel like an ambulance chaser, that’s why. Many people pride themselves on not caring what anyone else thinks. I don’t. I really do care – especially what health care providers think because I really have a lot of respect for them.

I’ve probably lost a lot of cases over the years eschewing hospital visits. But last month, our firm went on a weekend retreat to the Hyatt in Cambridge, Maryland. Great place. (Picture to the right of us after dinner.) The purpose of our meetings there was to become a better law firm. I’m convinced that we can never stop getting better. We are blessed to have a group of people who have been together for a long time. I think that experience individually and collectively gives us a chance to continue to improve. The focus of the meeting was what I call Kaiser Sose: doing the little things other people can’t or won’t do to (1) make our clients happy, and (2) increase the values of their cases. In the spirit of that meeting, which included the theme of EVERYONE having to be accountable, I have to start making hospital visits when current or potential clients ask me to come.

So I drive down to Baltimore to visit the hospital. I’m planning to meet the brother in the hospital lobby. This makes me feel better because it gives me some cover other than the guy who looks like a lawyer going up alone. While I’m fidgeting in the lobby, the brother calls the office and just asks, inexplicably, if I can just come up to the room.

Shoot. Now I’m really uncomfortable. But I sneak by the front desk without getting a visitor’s badge, effectively pulling off that “I am regular here, I know where I’m going” look, simultaneously feeling James Bond clever and a complete loser. Because I’m so clutch, I add a degree of difficulty by screwing up the “600-630 this way” arrow, having to suspiciously double back again. Thankfully, no one is paying attention because, you know, they are tending to very badly hurt people and I’m in Baltimore City and I’m clearly not carrying a weapon. Continue reading →

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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 plaintiffs’ counsel, you want to get the jury mad at the defendant. Jurors give more money when they are mad. This is hard in traffic collision 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.

Smart attorneys for plaintiff 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 smart ones 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 is doing everything you could do to put your 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 →

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I wrote last week about a bill pending in the Maryland House of Delegates that would authorize punitive damages against drunk drivers who caused “injury or wrongful death while operating a motor vehicle.” For whatever reason, the House of Delegates Judiciary Committee rejected the bill which means it is not happening in 2012.

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A defense lawyer who regularly defends truck accident cases was telling me recently how many plaintiffs’ lawyers rarely ask the questions that really scare him in deposition or in discovery. Car accident lawyers figure, “Hey, it is a truck accident. A truck accident is just a big car, right? It is really not. There are too many nuances to truck accident cases.

One typical miss: inquiry as to how much the truck weighed. Some estimate that 30 percent of tractor trailers and dump trucks are overweight. I’m guessing that is high. But truck accident cases disproportionately involve overweight trucks not only because heavy trucks cause more accidents because they are less safe, but also because truck drivers and companies that are willing to go overweight are similarly willing to take other chances with fatigued drivers and improperly maintained trucks.

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It is easier to file a lawsuit against a trucking company than a truck driver. This is true because human beings are likely to feel more comfortable placing blame on a big business than pinning it on one, possibility sympathetic, truck driver. We humans are folksy like that.

Moreover, juries are not told of the existence of insurance in traffic collision cases, leaving the juries wondering who is footing the bill. Most juries get it but they are not entirely sure because it seems so unbelievably odd that no one mentions insurance. The collateral source rule is not understood by the general public.

I had a trial once in a truck accident case where we actually did very clearly point to the commercial defendant. He was a great guy, we tried to leave him out of it as much as possible. But after the verdict one juror was extremely concerned that the defendant driver – who left an “I don’t have two nickels to rub together” impression – would have to pay out of his pocket after the verdict. “That nice Mr. So and So is not going to have to pay for this, is he?” The take home message for me: you have to make crystal clear the corporate entity is the one on the hook, not the likable driver.

Respondeat superior gets you there. But it does not necessarily get you to the company’s documents in discovery. They are key. Why? Well, at the risk of over generalizing, trucking companies are incompetently run. My apologies to every well run trucking company out there. But this is a low margin business. You make money by cutting corners. And it shows. So there is typically an obscene wealth of bad documents calling the names of plaintiffs’ truck accident lawyers if you are looking for them. This leads you to negligent hiring, supervision, and entrustment claims.

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Reams of studies on the relationship between driver fatigue and big rig truck accidents are just a Google click away. No one has seriously disputed this premise since federal regulators first limited commercial truck driver road time in 1940.

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Pat Malone writes a guest blog on Don Keenan’s Trial Blog arguing that confidential settlements undermine public safety and justice. 2013 Update: the link is now broken but this post is still really worth reading.

His point is that confidential settlements make it harder for future plaintiffs to get evidence and information they need to bring out all of the facts about the defendant’s conduct.

Specifically, Malone suggests:

    Here’s one tip for avoiding last-minute pressure from the defense to cave into a secrecy agreement: Be proactive. Tell the defense counsel at some appropriate point – such as with any settlement demand letter or in a pre-mediation communication – that you will not agree to secrecy because of the ethical issues. This can be one item on a list of settlement conditions.

Pat Malone is an extremely well respected lawyer who not only gets great results for his client, but also graciously spends a lot of time helping other personal injury lawyers. I also agree with his premise: there is doubt doubt that confidential settlements make it harder for the next plaintiff. This also make the company less accountable, too, in the big picture.

But here’s the problem: people who have been badly injured, even the best of people, have a hard time focusing on the global interests of plaintiffs everywhere when they are fighting and scrapping to be compensated for their injuries. And I have a hard time telling them that they should.

Let me give you a case in point. We recently settled a case with a Fortune 500 company. No discussion of confidentiality in the settlement discussions. You know what comes next. They send a release with a confidentiality clause. We balk. They say, “Okay, let’s try the case.”

Boy, I hate being bullied by big companies. I try hard not to take these things personally. But they were so arrogant in the way they delivered their ultimatum. They never would had the guts to play it through and I knew it. So we plotted a “file a motion to enforce the settlement and, in the off chance we lose, we try it” strategy. In angry detail. With our feathers up and blood boiling, we forgot, ah, that we have a client. So we call the client. She could not care less about confidentiality. She wants to execute the settlement and get her money.

So what do you do? I know what we did: we put our hurt pride on a shelf and sent the client the release. Continue reading →

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This post was supposed to be about Medicare set-asides but I started with such a long intro about the psychology of claims adjusters that I’ll just hit the Medicare issue in a later post. (Or I’ll completely forget about it.)

To understand claims adjusters, you have to get inside the labyrinth that is the claims adjuster’s mind. (Why labyrinth? I’m just trying to use mildly inflammatory language. I’ll stop.) Insurance claims adjusters are more Pete Rose than Barry Bonds: they get paid for singles, not home runs. The great things a claims adjuster does vanish into thin air; the mistakes live on. Ironically, plaintiffs’ lawyers operate in the exact opposite world: hit a few million dollar verdicts in a row and everyone forgets your losses. Reason #42,353 why plaintiffs’ attorneys and insurance adjusters are the Montagues and Capulets.

Accident lawyers have a misconception about this, thinking adjusters get hugs from the higher ups for ripping off a plaintiffs’ lawyer in a settlement negotiation. Actually, hugs is the wrong word – they do get hugs. But, mostly, that’s it. The way to make a name for yourself is not by screwing plaintiffs’ lawyers but by not screwing up yourself. Make sure everyone likes you and, more importantly, don’t make any mistakes. Overpaying on an accident case is not that big of a screw up: but failure to have a death certificate in the file before paying a wrongful death case? That is a federal crime in the insurance world. Under-reserving a case? That’s an aggravated felony.
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Almost two years ago now, Medicaid/Medicare liens became even more difficult to deal with as the law pushed to the lawyers and insurance companies the obligation of confirmation and resolution of Medicare/Medicaid liens. I’m sure betting an insurance company has yet to receive a fine for not verifying a lien before paying a personal injury settlement. But nobody wants to be the first.

Medicare, Medicaid and State Children’s Health Insurance Program Extension Act of 2007 created so many headaches people starting fighting back. In Haro v. Sebelius, an Arizona case in U.S. District Court, Medicare beneficiaries (and, interestingly, a personal injury lawyer in his own capacity) challenged – as a class – two things: (1) Can Medicare/Medicaid (hereinafter “Medicare because I’m sick of the slash) “require prepayment of a reimbursement claim before the correct amount is administratively determined where the beneficiary either appeals or seeks a waiver of the MSP reimbursement claim?, and (2) Are personal injury lawyers financially responsible for reimbursement if they do not hold or immediately turn over to Medicare their clients’ personal injury settlement awards.

Personal injury lawyers are completely in a pickle on these liens. Our clients want their money; we want to get them the money they are entitled to get. The question is whether personal injury attorneys are precluded from giving the clients their settlement money until after Medicare’s claim has been satisfied, and, let’s be honest, whether Medicare can recover the reimbursement claim directly from the attorney if the client fails to pay the reimbursement claim after the settlement money has been turned over to the client.

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