Articles Posted in Wrongful Death Claims

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I’m quoted a bit talking about some of the details of the Michael Jackson wrongful death trial.

I realize I have been blogging a bit less of late. I’m about to pick it back up. I just do not blog as much in May and June. I do much of my blogging at night and it is just harder to get my kids to bed at a reasonable hour with the weather so nice. Making matters worse, there has also been a lack of personal injury related opinions of interest coming out of our appellate courts.

I’ll be back to full speed, I promise.

P.S. – While I have your attention, did you see the editorial in the Baltimore Sun yesterday? Tons of love should go to James B. Astrachan, George W. Liebmann, and Henry R. Lord who are unabashedly critical of our high court. Usually it is hard to find anyone to be so openly critical of any judges. I’m even a little scared to do it, particularly when the dispute is not over a legal issue.

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    The first thing they do in a communist Nazi country is destroy the jury system. Why do they want to destroy the jury system? Because you represent the line between tyranny and democracy, right and wrong. You have the power. . . You have more power today than the President of the United States. . . . But the question is, will you have courage today? Do you have the God given courage. . . .

This is a line from a closing statement in a wrongful death medical malpractice case in Mississippi. Setting aside that the Nazis were not communist but bitter enemies of the communism, this is just unbelievably over-the-top, right? This line, Plaintiff’s closing statement, a jury instruction stating that an element of the wrongful death claim was the “loss of the value of life,” led a The Mississippi Supreme Court to revers a 1 million jury verdict in a wrongful death case.

This case is a classic “you could have saved her if you had taken the case more seriously in the ER” case. It happens every day in this country. In this case, the woman presented at the emergency room with a lot of problems: confusion, decreased appetite, tremors, renal disease, respiratory failure, and pneumonia. They did not take her to intensive care but gave her antibiotics, and the woman went into cardiopulmonary arrest. The opinion does not go into the merits of the case but you can be sure the doctor’s attorney contested both negligence and causation.

A jury found the doctor negligent and awarded $1 million. The doctor appealed, arguing that the plaintiff’s malpractice attorney made improper comments to the jury, including that the damages should include, “the value of a human life.” Plaintiff’s counsel was echoing the jury instruction that the jury may consider the “value of life” of the deceased when awarding damages.

The whole thing was a mess. It was not a great instruction and maybe a little misleading. Defense counsel also did not properly object to the instruction which would have given the court a chance to cure the problem or allow the plaintiff’s lawyer to withdraw the request.

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When I read a newspaper article, I assume it is true. Why I do this defies logic and reason.

A little paper near my home with a limited budget wrote an article on a pedestrian accident wrongful death case in Prince George’s County. You probably never heard of the paper. It is called the Washington Post.

The Post writes an article on a $90 million verdict in this case. You should read the comments – you have to read the comments – about the case. People are outraged!

The article left out one important details that could have nipped this conversation in the bud: there is a $100,000 cap on the claim. If there was not, there would have been a $680,000 cap.

It is crazy that the Washington Post can’t even reference the possibility the County will not be forking over the full $90 million.

Are they lacking this level of accuracy when it comes to, say, North Korea. “Tensions are increasing as North Korea aims new mid-range missiles at Seoul.” Do you think they leave out supporting facts like, “The missiles are armed with water.”

Get the Baltimore Sun, the Washington Post, the Wall Street Journal and probably 10 different news magazines. Everything except for the Post rarely gets more than a passing glance. So it is particularly scary that my go-to source is putting out an article like this that is so unbelievably out of extent as to make the entire article more uninformative than informative for readers. If you are a layperson trying to understand our civil justice system in Maryland or even what will actually happen in this case, you would be better off not reading this article. That is a sad commentary.

I realize newspapers need to sell papers. So I tolerate it when they bury the lead and put it at the bottom of an article like this “This case is capped at $100,000 so after attorneys’ fee, this poor family will get less than $60,000 for the loss of their dead daughter.” But we don’t even get that here.

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I’vewritten a good bit about use plaintiffs’ in Maryland wrongful death cases and the hornets’ nest that lawyers can find themselves in when they do not have all of the potential wrongful death beneficiaries reading off the same sheet of music before filing suit.

The Maryland Court of Appeals has decided to rewrite the rules when filing wrongful death claims involving notice to use plaintiffs that gives attorneys a more clear path. It also addresses the issue of adult children’s claims for solatium damages.

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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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The Pennsylvania Supreme Court stuck down a $5 million verdict in an Ethicon endocutter design defect case last week, finding that the trial court was not restricted to considering only one use of the device, and that it properly applied a risk-utility analysis. The case talks about product liability risk-utility analysis in the Restatement (Third) of Torts. You can read the court’s opinion here.

Plaintiff, a 40 year old mother, underwent gastric bypass surgery (Technically, she is the plaintiff’s decedent. I use “plaintiff” because my refusal to use plaintiff’s names on this blog, a stance that sometimes makes recitation of the facts awkward in wrongful death cases.). To cut and resection plaintiff’s stomach, her doctors utilized an ETS-Flex45 Articulating Endoscopic Linear Cutter – called an an “endocutter” – made by Johnson & Johnson, subsidiary Ethicon Endo-Surgery (Let’s say charitably that both of these companies are frequent flyer product liability defendants.). The device was designed for use in less-invasive endoscopic surgery, but also was marketed for use in traditional “open” surgery in which a large incision is used to view internal organs.

After complications, Plaintiff’s doctors conducted a second surgery and discovered that staples were absent in two small sections and attributed the problem to “mechanical staple failure.” Sadly, Plaintiff’s stomach contents had leaked into her abdominal cavity, causing sepsis, and her eventual death.

Plaintiff’s Estate filed a wrongful death suit contending that the endocutter was unreasonably dangerous because it was not equipped with a means to either measure the thickness of the tissue being stapled or lock the device if the tissue thickness was incorrect. Plaintiff’s Estate contended that had the endocutter been designed with with this capability, it would have prevented the staple line failure that caused Plaintiff’s death.

An Allegheny County, Pennsylvania jury agreed, finding the endocutter’s defective design caused the woman’s wrongful death and awarded $ 5 million, finding that the endocutter was defectively designed.

The big issue in the case was the application of the risk/utility analysis required in a products liability action to determine whether a product is unreasonably dangerous. In this case, the endocutter at issue was marketed for multiple recognized uses, but the injury to the plaintiff was caused by only one of those uses. So the question is whether the trial court’s risk-utility analysis should be limited to the use that caused the plaintiff injury or should it consider all of the uses of the product.

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There is a bill in the Maryland General Assembly that would authorize punitive damages against drunk drivers who caused “injury or wrongful death while operating a motor vehicle.” Punitive damages would be available against drunk drivers: (1) With a blood alcohol concentration of over .15; or (2) With a blood alcohol concentration of over .08, and was driving on a suspended or revoked license or had entered a plea of nolo contendere or received probation before judgment within the last 5 years.

The Maryland Chamber of Commerce opposes this bill. Why? I really think it is because the Maryland Chamber is run by the true believers who care about some issue far more strongly than furthering the interests of Maryland businesses. That mission includes a strong opposition to anything their gut tells them that Maryland personal injury lawyers might support. Seriously. If Maryland Association for Justice put out a statement that Jeremy Lin should be the focal point of the Knicks’ office even when Carmelo Anthony returns, the Maryland Chamber of Commerce would immediately put out a statement renouncing Lin (citing the fact that Carmelo is from Baltimore or something). It is just silly.

(Minority Report: their opposition makes perfect sense. They are worried about the slippery slope of punitive damages affecting Maryland businesses and they are two steps ahead in the chess match. Personally, I don’t give them that much credit.)

So let me set the Chamber’s mind at ease. Economically, plaintiffs’ attorneys would get no real benefit from punitive damages in drunk driving injury and death cases. Why? Because punitive damages are not covered by insurance. Which means the drunks have to come up with the cash themselves. My firm has collected $0.00 from people individually over the last ten years. Collecting money from people individually is just very difficult. In almost every case, the juice is not worth the squeeze unless the defendant goes by the name John Rockefeller. Lawyers handling traffic collision cases will not see their revenues rise a half of a percent by getting drunks to pony up punitive damages.

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Caps on non-economic damages make it impossible to receive true fair value in death claims in Maryland (and in most states). Accordingly, personal injury lawyers need to turn over every possible stone to maximize the economic damages in wrongful death cases. Often overlooked, even by the best wrongful death lawyers – at least until they get the case to an economist – is the decedent’s employer funded benefits.

The problem is, in many fatal cases an economist is not used either because the plaintiffs’ lawyer thinks he does not need one, or because the case reaches a settlement long before an economist is engaged. As a result, employee funded benefits are not always included in the calculus.

Fifteen years ago, if you left out these benefits, the overall value of your case suffered a little. In 2012, with health insurance and other employee benefits skyrocketing, if you don’t include these in your damages in a wrongful death case, you are leaving as much as 25% of the value of the claim on the table.

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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.

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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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