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insurancepolicyI have taught insurance law for the last 17 years at the University of Baltimore Law School.  I think it is important to explain both the hornbook majority view and Maryland law.  Typically, what I’m saying is that the majority view is this balanced reasonable law… and then there is Maryland law which seems to bend over backwards to favor insurance companies.

There is a political element to this.  Maryland insurance law is stunningly conservative.  Paul Ryan himself probably vigorously approves.  Yet Maryland is an extremely liberal state.  Sure, we went through that crazy college experimentation-like phase with Bob Ehrlich but we have consistently picked liberal governors and have consistently had a solid liberal majority in the Maryland General Assembly.  So why are we the Rush Limbaugh of insurance?

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emotionalOur clients in 2014 have incurred millions of dollars in medical bills.  But the real harm in personal injury cases is the physical and emotional pain and suffering that comes with the victims’ injuries. Today we are going to look at compensation for emotional injuries in accident and medical malpractice cases.

Let’s start out with some hard number on compensation for emotional injuries nationally, provided by Jury Verdict Research.  This category includes cases involving emotional distress or post-traumatic stress syndrome.

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I was looking today at some interesting statistics on the most frequent types of car and other motor vehicle accident injuries that go to trial.  It breaks down like this:statistics

  • Back strains: 33%
  • Disc injuries: 15%
  • Spinal nerve injuries: 10%
  • Head injuries: 10%
  • Shoulder injuries: 4%
  • Knee injuries: 3%
  • Brain damage: 3%
  • Vertebra injuries: 3%
  • Everything else (including wrongful death): 2%

At Miller & Zois, we do not have many back strain cases so that 33% probably gets knocked by at 5%.  A lot of our cases come from attorney referrals from other personal injury lawyers who are keeping these types of cases for themselves, as they well should.  Our website constantly underscores “serious injury only” which keeps away a lot of those smaller cases.  We do this because our business model which requires us to work up every case like it is our only case (self-serving, sure, but true) does not work well with smaller cases economically.

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truckaccidentA new appellate opinion offers some interesting insight into the parameters under which a plaintiff may inquire about a truck driver’s driving record and the extent to which plaintiffs’ truck accident attorneys can use cross examination fodder like the commercial driver license manual and other safety manuals.

Fact of the Case

Briefly, a man on a bicycle was killed when he was hit by a truck.  The bicyclist was making a right turn against a red light on a white pedestrian signal.  The truck hit him and he was dragged for several hundred feet.

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scheduleScheduling depositions in car accident lawsuits usually is not a complex thing. You call the other side, you agree on dates, and you have your depositions. The key is cooperation. Rather than unilaterally serving a deposition notice, you just call opposing counsel and agree to the place, date, and time. There are rarely issues.

For some reason, and I’m not entirely sure why, scheduling depositions in medical malpractice cases always seems to be an ordeal. Common courtesies that I’m sure many Maryland malpractice lawyers accord each other in the rest of our lives sometimes go out the window. Sometimes, it seems like otherwise ethical lawyers have no qualms about making up excuses for why they or the deponents cannot attend a deposition that are not based in fact. Often, you can figure this out when you depose the witness. Continue reading →

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skypeMaryland courtrooms are slow keeping up with the times.  This is not an altogether bad thing.  What happens in the courtroom matters and we should probably let society work out the kinks of technology and understand all of the potential unintended consequences before our judicial system leaps into the next big thing.

That said, geez.  It is 2014.  Can we get wi-fi in the courtrooms?  I can’t even get my phone on the Internet in some courthouses, like P.G. County Circuit Court  not to name any names.  We can e-file pleadings in federal court now and will be able to in state court at some point.  But we are about 15 years behind the curve.  Let’s not let the world get a full generation lead in technology over our courts.

One of the big issues that is increasingly getting attention is witnesses testifying at trial without actually showing up at trial.  Skype is the primary method that gets talked about, probably because its low cost makes it the most desirable.

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Tiger Woods "easy" back surgery hurts some tort victims

Tiger Woods “easy” back surgery hurts some tort victims

Tiger Woods announced today that he has undergone successful back surgery and expects to be back playing golf this summer.  Good for him. This is bad news for golf fans who passionately root for or against Tiger.  But it is also bad for personal injury victims who are bringing a back injury claim in front of a jury.  Why?  Because juries get constant evidence from athletes that back injuries and back surgery is not a big deal.  Some will equate Tiger Woods to 58 year-old Mary Smith when she has a discectomy and fusion for a herniated disc after a car accident.

Why Tiger’s Surgery and Expected Recovery Misleads Juries

There are a number of reasons why the comparison is unfair.  First, not all back injuries are created the same.  Tiger had a microdiscectomy for a pinched nerve.  That is light years from, say, a herniated disc suffered by great trauma.  But some jurors view back surgery as back surgery regardless of the severity of the injury. Second, Tiger is a professional athlete who dedicates his life to keeping his body in the best possible shape.  Tiger won’t even share his workout secrets.   He will also get stunning medical care.  The best doctors and ridiculous amounts of medical attention you and I would never see. Finally, Tiger’s getting surgery in the first place is probably something you and I never would have gotten in the first place.  Why?  First, we are not violently swinging a golf club at pretty much the speed of light.   So I can probably still workout and work around the same injury that Tiger needs to get taken care of so he can perform on a world class level. Continue reading →

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Maryland appellate opinionsMark Mixter and James Farmer are two Maryland tort lawyers that just don’t like each other.   There are lots of attorneys that don’t like each other.   Lawyers are probably more confrontational and competitive than your average bear.  If you doubt this premise, go watch a lawyers’ league softball game.   So add this natural tendency with the intensity of litigation and people are going to find reasons to get upset unless you are ultra thick skinned.  (One resolution of mine in 2014 is to develop some thicker skin all the way around.)

When these two lawyers fight, it goes deeper and litigation apparently follows.  The Maryland Court of Special Appeals recently  affirmed the dismissed defamation, libel, slander and intentional inflection of emotional distress claim that one had filed against the other.  You can find the opinion in Mixter v. Farmer here if you are interested.  Something about someone writing a letter to other lawyers saying disparaging things or something.   I started to read – mostly out of prurient interest – but I realized I must have something better to do.  (So I wrote this point instead?)

This is apparently the second case between these attorneys that has found its way to the Maryland Court of Special Appeals.   The last one involved a case that settled but one of lawyers became so mad that he sought and received a sanctions order against the other.   The appellate court reversed the order of sanctions.  So a whole lot of trees were burned and blood pressure was raised in a battle over a little more than $3,000.

I’m not real judgmental about this kind of stuff.   You rarely know what really happened in these battles and, typically, but not always, it takes two to tango.  The line between fighting for a principle and merely acting out of spite can sometimes be a fine and blurry line.  But it is such a waste of energy and resources for talented lawyers to spend their time sniping at each other, or worse, this.  Every time I want to start World War III over something that is ultimately stupid, I go home and kiss my wife and kids and get perspective on what really matters.

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There have been some interesting developments in the da Vinci Surgical Robot litigation.

da Vinci Class Action Lawsuit Update

We reported last year on the efforts of some plaintiffs’ lawyers to combine existing and future da Vinci lawsuits into a type of class action lawsuit known as an MDL. An MDL groups similar cases together in federal courts for convenience and efficiency. Those cases would be handled by one judge and would have consistent general discovery, but would then have individual trials unless there was some sort of global da Vinci settlement. Well, the petition for MDL-2381, In Re: Intuitive Surgical, Inc., Da Vinci Robotic Surgical System Products Liability Litigation was denied on August 3, 2012. The original petition included four cases spread out over four states. The JPML denied the petition we think correctly, noting that the cases were “straightforward personal injury or wrongful death actions.” Essentially, there were very few cases, and those cases would rely on largely unique and individual facts that were better suited to a standard and stand-alone lawsuit. The plaintiffs would have had a better chance (though not a great chance) if they had argued for consolidation of specific subsets of injuries—for example, hysterectomies. However, the reports thus far indicate that there are several different causes of injury, even for hysterectomy procedures. This was the right decision.

Victim Stories

NBC recently aired a report featuring the stories of many victims of the da Vinci. Click here for the eye-opening broadcast.

Intuitive Surgical Wins the First Trial

The maker of the da Vinci robot won the first reported trial. Filed in Washington state, the plaintiffs argued that Intuitive negligently trained a doctor who used the robot to perform a prostatectomy (removal of the prostate gland). The surgery caused kidney failure, brain damage, and eventual death. However, the device’s manufacturer was able to successfully argue at the five-week trial that the doctor was solely at fault. Though unsuccessful against the manufacturer, the case settled against the doctor before trial. Continue reading →