Maryland Injury Lawyer Blog

LawyersUSA has an article today on a frequent topic on this blog: "independent" medical exams. There are a number of quotes from me in this article.

The New York Times has a good article today on Independent Medical Examination doctors, including a doctor referred to by New York injury lawyers as "Doctor Says-No." We have a number of IME doctors in Maryland that must be related to him because they have the exact same last name.

The New York Times would not have written this story if it did not have examples of patients possessing the great weapon of the modern age: "I've got it on tape." The article has examples of doctors who told the patient one thing in the evaluation - which the patient's taped with their phones - and put the opposite conclusion in the report.

In Maryland, our lawyers are seeing a new wave of IME doctors replacing the old guard of discredited doctors that juries stopped believing long ago. Below are a few tools to fight for your clients to get fair defense medical exams.

My colleague John Bratt (author of the Baltimore Personal Injury Lawyer Blog) is in the middle of a battle in a Montgomery County case where the expert is refusing to meet the very same conditions imposed against this same expert by a judge in another case we had with him in Montgomery County. In another accident case my colleague Rod Gaston has with the same doctor, the doctor was ordered to produce his financial records. Bizarrely, the insurance company withdrew the doctor but he still filed an interlocutory appeal. I'm looking forward to finding out who has been paying his legal fees for all of this. My bet: the insurance company.

(Note: I have fixed the New York Times link, as requested. Thanks to all for bringing it to my attention.)

Continue reading "IME Doctors Caught on Tape" »

The Mass Torts Blog, another defense lawyer blog brought to you from our friends at Dechert, posts on Labor Day about medical screening in mass tort cases. The allegations are basically that plaintiffs' product liability lawyers are committing fraud when screening clients. Read the post for yourself and tell me that is not a fair summary of what the post alleges.

It would be nice to have a more moderated voice coming from Dechert, a fantastic international law firm, as opposed to the the defense lawyer version of Ann Coulter. But if what the Mass Tort Blog is saying is correct - that a large number of plaintiffs who accepted settlements in the asbestos, silica, fen-phen, silicone breast implant, and welding fume litigations were fradulent, manufactured claims - where were the defense lawyers to protect the defendants from this fraud?

Obviously, it was easy to make this determination, as Cardozo Law School Professor Lester Brickman had done in his study, which was relied upon in the Mass Torts Blog post. Were defense medical examinations a condition of settlement? Did they just blindly trust the plaintiffs' lawyers? If this really is the case, shouldn't we infer that all of the defense lawyers who defended these cases committed legal malpractice?

Before a posse of drug and medical device companies form to file a lawsuit against all of these defense lawyers for legal malpractice (including, ironically, Dechert) for failure to properly defend their clients, let me save them: this contention is nonsense. The reality is that the defense lawyers sized up these cases, reviewed medical records, and made the appropriate decisions as to who should be included or excluded. The notion - that defense lawyers allow systems to exist where they just have to trust, without safeguard, the plaintiffs' lawyers and the doctors they hire to evaluate cases - lacks any foundation, notwithstanding Professor Brickman's 177 page polemic.

By the way, I wonder what Professor Brinkman’s null hypothesis was coming into this article. Does his CV give it away at all? Jury consultant David Ball suggests not presenting a case with the language of an advocate in an opening statement until you have earned the confidence of jury. On page 14 of his 177 page paper, Professor Brinkman says, “Thus, screenings coined money as surely as if the lawyers had access to the government printing press.”

I don’t think Professor Brinkman has read David Ball.

Insurance Settlements, a two volume treatise for which I am the lead author, is now available from James Publishing. This treatise is for personal injury lawyers handling auto accident, truck accident, medical malpractice and product liability cases with a lens toward getting the best possible outcome at all stages of these cases (though trial). The better title for the book - with the benefit of hindsight - would have been "Maximizing the Value of Personal Injury Cases." Maybe I can convince James Publishing to change it down the road.

I’m excited about the book. If you are interested getting a copy, click on this James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Questions or Comments."

The National Law Journal has an article on the increasingly contentious battleground over the circumstances of “independent medical exams.” Personal injury lawyers in Maryland in car and truck accident cases are increasingly battling over the terms and conditions of the plaintiff’s medical exam, from who can attend the exam to more substantive concerns like the production of the IME doctors’ financial records. In the last 24 hours we have had two separate disputes with defense lawyers that we like and with whom we regularly cooperate. One involves the defendant’s lawyer wanting a doctor in Washington D.C. that just coincidentally is outside our subpoena power. Interestingly, the doctor lives in Maryland but has an amazing skill of evading service. (Does that show up on his C.V.?)

You can find the entire article here which includes a quote from me.

Related Posts:

Our Conditions for an Independent Medical Exam (IME)

Should Lawyers Videotape Independent Medical Exams?

How to Cross Examine IME Doctor

Response to Protective Order for IME Doctor Not to Produce Financial Records

Our lawyers have long believed that professional expert witnesses’ financial information, including their tax returns, may be discoverable and admissible for the purpose of showing potential bias. Yesterday, the Alaska Supreme Court joined the list of jurisdictions that agree with us.

Noffke v. Perez is a car accident case wherein a wife and husband were awarded $54,000 and $24,000, respectively, by an Anchorage, Alaska jury. On appeal to the Alaska Supreme Court, the defendant claimed that it was error for the trial judge to require her expert witness to produce income tax records. Reading between the lines, it seems that after a motion to compel the records was sought and granted, the defendant’s expert did what many hired medical experts do after an order to produce their records: they refuse to testify.

The Alaska Supreme Court found that there might be a “plausible argument that the witness generates such a significant portion of his or her income from a particular side or particularly attorney that the expert’s impartiality can reasonably be questioned” making this information discoverable and admissible (emphasis added with joy).

The problem I have is that there are a number of doctors who are “Med Mutual doctors” or “State Farm doctors,” the folks that these insurance companies turn to when they need a doctor who is willing to go out on a limb to take a tough position. I do not believe I am being a cynic. This is just reality. To be willing to take this quantum leap from objective doctor to advocate doctor, these experts usually want to be well compensated. To be fair, this happens to some plaintiffs’ experts too, but I think this happens to a lesser extent. If for no other reason than the insurance companies have more of a market share than individual plaintiffs’ lawyers, increasing their leverage over experts. Our law firm has never called an expert to testify at trial who was personally financially beholden to us – insurance companies do it all of the time. (If I'm wrong about this, defense lawyers should join hands with me on this issue.)

Accordingly, it is fair game to question how much money they have made from (1) legal related work generally, (2) from a specific lawyer, law firm or company, and (3) how much money the expert makes overall. Why does the expert’s total income matter? Because without that information, it is easy for an expert to claim that, while he might make $200,000 a year doing legal work, it is a small portion of his income. To put that in fair context, the jury should know just what that portion is.

Unfortunately for these plaintiffs and their personal injury lawyer, Alaska Association of Trial Lawyer President, Michaela Kelly Canterbury, this case was reversed, but on other grounds (excluding certain medical exhibits and failure to give a comparative negligence instruction).

You can find the Alaska Supreme Court decision here.

There is another good blog post from the Drug and Device Law Blog this time regarding electronic discovery with respect to on-line diaries and the social networking like Facebook and MySpace. I have not had this issue arise with one of our clients but it is only a matter of time. Anything on there inconsistent with plaintiff's complaints is going to be used against them (as it should in most cases).

Speaking of which, you can find my Facebook profile here and my Linkedin profile here. If you are on Facebook or Linkedin, add me to your list of friends.

Maryland has a new law that went into effect this month providing for a couple of additional hoops for car accident lawyers to jump through to get police reports in Maryland. The Maryland Transportation Article Section 20-110 sets forth new requirements in Maryland to get a police report within 60 days of the accident. The requesting party must provide (1) a valid driver's license, (2) proof of your legitimate reason to obtain the police report, and (3) a notarized certification that for 60 days after the accident or incident you will not use the police report for commercial solicitation.

Baltimore County has created a form to meet these new requirements although it does not appear to require a driver's license. You can get this form on the Maryland Personal Injury Help Center miscellaneous forms and letters page by clicking here. We will continue to add the forms additional counties provide to us as they become available.

One-hundred percent of our law firm’s practice is personal injury cases. We do not and will not take any defense cases even if we believe in the defendant’s case. Yet, last year I found myself on the other side of the coin as a defense expert. I served as a legal malpractice expert for a local defense firm on behalf of a plaintiffs’ personal injury lawyer in Towson. I believe this lawyer did not breach the standard of care according to his version of the facts (and, parenthetically, I believe the most logical version of the facts). Certainly, in this case, under the Plaintiff’s version of the case, the lawyer committed legal malpractice.

While I did not have the slightest trepidation about taking this case or the expert opinions I expressed, it was certainly an odd experience to be back on the defense side for the first time in over six years. Regrettably, from an experience standpoint, the case settled before I had the opportunity to be deposed. It would have been a particularly educational experience, because the legal malpractice lawyer who would have deposed me is a skilled and well prepared lawyer, who would have been effective in challenging my opinions. Taking a different role in a case certainly does change your perspective, and I think helps you think more creatively about your cases. (Similarly, I have been a law professor for over 10 years. It would be interesting to be a student again after all of the exams I have graded over the years. I think being a professor would make me a better student.)

Believe me, I am all in favor of plaintiffs’ personal injury lawyers suing other personal injury lawyers when one of us has breached the standard of care. The whole idea of lawyers "sticking together" is both absurd and wrong. Our lawyers handle legal malpractice cases where the underlying case is a catastrophic personal injury case. But I also think there is an obligation to be willing to come forward and testify on behalf of a fellow personal injury lawyer if you believe the lawyer has not breached the standard of care and committed legal malpractice.

In the spring of 2006, the Anne Arundel County Circuit Court bench adopted its current discovery DCM plan, seeking to make its handling of civil and family law discovery disputes more prompt, consistent and effective. To survey the effectiveness of the new rules, the Anne Arundel County Circuit Court bench has prepared a survey for Annapolis area attorneys to complete.

I think it is fantastic that the bench in Anne Arundel County cares enough to listen to what its "customers" - lawyers practicing law in Anne Arundel County - think about the court's discovery rules. I read a lot of blogs talking about how disconnected some courts are to the lawyers practicing in those courts. In the last year, Anne Arundel has added Courtcall and E-Filing, all efforts to make the system a better one. It is good to see another example of how Anne Arundel County is trying to put together the best system possible so that lawyers and their clients are able to get a fair and efficient day in court.

If you are an Anne Arundel County lawyer, take five minutes and fill out the survey. There is a link to the survey in the first paragraph of this blog post.

You can complete an online survey in 3 minutes or less to give your opinion. You may respond anonymously, if you desire to. Go to

The Circuit Court bench may make revisions to its DCM Discovery policy based on these survey results. Alternately, if the responses are minimal, the Court may decide that no changes are necessary.

The United States District Court for the District of Maryland has posted a Suggested Protocol for Discovery of Electronically Stored Information on its website.

The Maryland District Court's website notes that this protocol, developed by Judge Paul W. Grimm and others in light of recent amendments in the Federal Rules (click here for a good summary and analysis of the amendments), is a working model that has not yet been adopted by the court. Instead, the protocol is intended to serve as a tool to assist lawyers in resolving disputes in a new area of discovery. The protocol may serve as the framework for developing local rules in the future. The court has invited comments and suggestions from the Maryland bar to be sent to mdd_voyager@mdd.uscourts.gov.

This is an atypical issue for Maryland car and truck accident lawyers but electronic discovery can be an issue occasionally for medical malpractice lawyers looking to uncover a doctor's communications with others about the chosen procedure or treatment plan. This is a far greater issue for products liability lawyers in Maryland conducting discovery about a drug or product. For a lot of interesting information on electronic discovery, check out Evan Schaeffer's Illinois Trial Practice Weblog which provides a lot of tips and commentary on electronic discovery issues.

Last week, a well respected defense lawyer told one of our lawyers that they had obtained the Maryland Trial Lawyers Association's “Handbook," which spells out the terms for a defense requested medical examination. This "Handbook" has made its way into a Motion to Compel a Physical Examination, specifically including this "MTLA Handbook" as an exhibit to the motion. By way of this inclusion, I assume this is an authoritative source of legal guidance for the court on this discovery matter.

Now back to reality. Maryland Trial Lawyers Association does not have a "Handbook" on defense medical exams. Instead, it is just a copy from the Maryland Personal Injury Lawyer Help Center of the link from our website setting forth our suggested conditions for a defense medical exam. I think it is funny that this is being represented as some sort of guide to fighting medical exams. I am glad people are using the Maryland Personal Injury Lawyer Help Center. My partner told me last week that a defense lawyer she spoke to said they often get motions from other lawyers copying our sample motions. The lawyer said they call them "Miller & Zois" motions.

There is also a motion for sanctions for failure to appear for a scheduled medical exam. As I indicated earlier, my law firm likes and respects this lawyer and his firm, but this motion really annoys me. I could throw out 5 reasons why, but only one really matters.
In Maryland, and also under the Federal Rules of Procedure, a defense medical exam is not a matter of right and may be obtained only by an order from the court.

So let's get this straight: Defendant's lawyer sets a date for a DME, unilaterally by the way, just assuming the Plaintiff has no life and lots of time on her hands, for which the lawyer has not obtained a court order, and then files a motion to compel when she does not present for the medical examination. Huh? The motion also fails to mention that the discovery deadline - by which time all discovery disputes should be resolved - has long since passed.

Yesterday, I wrote a blog post for the Trial Lawyer Resource Center with thoughts on defending your client's deposition in personal injury cases. You can find it here.

We are handling a red light/green light auto accident case that occurred in Towson, Maryland a few years ago that resulted in substantial permanent injuries to our client. Trial is a few months away. The insurance company for the Defendant is the Maryland Automobile Insurance Fund (MAIF). Their attorneys recently filed a motion to bifurcate the trial into two separate trials for liability and damages.

The Defendant would not seem to benefit if the case is bifurcated. The concern raised by Defendants – the cost and effort of the liability case – is of no consequence to the insured Defendant. So, practically speaking, why was this motion filed?

If the case is bifurcated, the chance of a bad faith claim against MAIF evaporates; it would simply offer its $100,000 (an extremely large policy for MAIF, parenthetically) policy limit in the event Plaintiff prevailed on liability because, as Defendant’s motion tacitly concedes, this value of the case is in excess of MAIF’s coverage. Accordingly, while bifurcation would be a loss for Plaintiff, it would also be a loss for the insured Defendant who will lose any leverage that he has to encourage MAIF to settle this case or any claim he has against them for bad faith should they not make reasonable efforts to settle the claim. Should the case be bifurcated and Plaintiff prevails on liability, Plaintiff will proceed on with the damages trial that will likely result in an excess verdict. This would leave MAIF in fine shape, fully insulated from a bad faith claim and protected from allegations that it failed to properly defend its insured by, for example, having a defense medical examination performed on the Plaintiff. Defendant would be left holding the bag.

This takes us back to the flip title of this post: Who's your daddy? What are the chances the Defendant’s lawyer, who was hired and paid for by MAIF, advised his client of these personal risks to him when seeking bifurcation? When defense lawyers serve two masters, or sticking with the pop culture theme, two daddies, conflicts abound. Every defense lawyer in Maryland knows that these conflicts have to be resolved in favor of the client, not the insured.

Most insurance company lawyers our attorneys work with walk this delicate balance well. Obviously, I do not have all of the facts and, of course, there could be facts of which I may not be aware that would change the analysis, most notably the unlikely event that MAIF told the client or his attorney that it would cover any verdict in excess of the policy limits. But, somehow, I doubt it. There is no question that the tripartite relationship between the insured, insurance company and the insurance defense lawyer is complicated. But the insurance defense lawyer owes a paramount duty to his client even if the insurer hired him and pays his bill. While most insurance lawyers are mindful of this duty, it is still way too often forgotten.

Goal number one when your client is giving a deposition is to do no harm. The greatest harm your client can do in almost any personal injury case in his/her deposition is to get caught in a lie. Clients are most prone to "lie" about prior car accidents because they genuinely do not remember them. But a smart insurance company lawyer may turn an innocent failure to recall into a litmus test on the client's credibility. In the end, as much as we as personal injury lawyers like to make the cases about ourselves - particuarly when we get a great verdict, we all do it - the importance of our credibility/likability is a distant second to the importance to that of our client.

How can you solve the problem? Obviously, a good lawyer spends time before the deposition discussing the issue with the client, explaning in very direct terms that prior medical history or claims history will be uncovered by any competent defense attorney or adjuster with access to a computer and/or the medical records. But, again, in some circumstances, the client may not remember whether they were injured on the job or made a claim for a car accident in which they were involved.

The backup to your client's best recollection is to have your client fill out a claims index so you can have access to the exact same information as the insurance company. American Insurance Services Group (AISG) is the company our lawyers use but there are others that do the same thing for the same price. For twenty-five dollars, you can get a full claims history for your client, putting the personal injury lawyer on par with the insurance company in terms of information about prior accidents and claims.

It is also worthwhile for the lawyer to compare the information obtained from the client during the intake to his index form. If the client said this is his first accident and the claims report says he has had 5 previous car accidents where he has made claims, you know you have a problem.

My partner, Laura Zois, spoke today in New Orleans at the annual AAJ (formerly Amercian Trial Lawyers Association) Jazzfest seminar on auto torts. Many in the audience had questions after her presentation. She said that almost a third of these lawyers asked her for an AISG index form. I have attached a copy here if you would like a copy of the form.

The Baltimore Sun reports Friday that a man accused of driving drunk and killing a Marine and his date in a car accident on Thanksgiving in Columbia failed the written portion of his driver's license test twice in North Carolina before passing it on a third try. The Sun also implies that the drunk driver, an illegal immigrant, used a back door to get his driver's license.

My response to this: so what? I do not think this fatal car accident was caused by the man's inability to learn the rules of the road or to drive a car, nor was it the fact that he was an illegal immigrant; it was a blood alcohol content of .32. Many people reading this blog, including me, would probably die before getting to .32.

I do not fault the Baltimore Sun for reporting these details but I hope people understand why this tragedy in Columbia occurred: mixing cars and alcohol.

I added to our Personal Injury Lawyer Help Center's Trial Materials section a direct and cross examination for a trial I had in Prince George's County, Maryland two weeks ago. The cross underscores the difficulty defense lawyers have in cross examining treating doctors on bias. The message as always: use treating doctors in personal injury cases whenever possible.

This maxim is most difficult to apply but holds most true in medical malpractice cases. The difficulty, of course, is getting the subsequent treating doctor to offer medical malpractice opinions that he/she does not want to give for reasons that have nothing to do with the question of whether a medical mistake was made. Maryland has a small medical community and there is great reluctance for Maryland doctors to testify against each other.

I also added, by popular demand, another deposition of a defendant driver in a Maryland auto accident case, this one by attorney Laura G. Zois. I intend to add more of these things as the we continue to expand the Maryland Personal Injury Attorney Help Center. It is just very time consuming for us to redact all of the parties' identifying information, scan in the documents, and then put it up on the web site. Slowly but surely we will continue to build it up.

The Maryland Daily Record reported yesterday that U.S. District Judge Richard D. Bennett dismissed the complaint filed by prison inmate Byron Smoot against hip-hop mogul Russell Simmons, finding that Simmons and co-defendant Missouri based Kellwood Company lacked the requisite minimum contacts with Maryland that would make them amenable to jurisdiction in Maryland. The Court’s 14 page opinion can be found here.

As an interesting footnote to this case, in 1999 Smoot began a romantic relationship with the prison psychologist. Smoot and a convicted murderer escaped later that year by climbing over the prison’s fence. They ran into town and made a phone call to the prison psychologist. The men were caught two days later after a massive manhunt. The psychologist pled guilty to an accessory charge for housing the men and was sentenced to six months in prison. HBO had a series years ago called “Oz” where the prison doctor fell in love with one of the inmates. I remember thinking the plot seemed a bit outlandish. But this story sounds equally bizarre.

Coming back from this soap opera to Maryland law, Maryland’s long arm statute allows jurisdiction of defendants to the fullest extent possible under federal law under the due process clause. I am handling an accident where a Missouri truck driver is a defendant. We sought jurisdiction in Maryland based on Defendant’s affidavit that he had four or five truck deliveries a year in Maryland. In the alternative, we asked for permission for our attorneys to conduct discovery to fully understand Defendant’s general contacts with Maryland as opposed to relying simply on the affidavits. But the Baltimore City Circuit Court judge who heard the case denied both requests.

I am of the opinion that if a truck driver regularly drives through a jurisdiction, he is availing himself to that jurisdiction. I cannot see how it is a violation of due process to be amenable in a jurisdiction that you regularly frequent when there is jurisdiction if your are served with process the first time you happen to be in the jurisdiction. See Burnham v. Superior Court, 495 US 604 (1990). But 99% of the case law on this subject disagrees with me.

Yesterday I took the deposition of the Defendant truck driver in a tractor-trailer accident case that occurred on North Point Road near its intersection with Quail Avenue in Baltimore, Maryland. My client suffered permanent injuries to her left hand (she is left-hand dominant) in the accident. This is a classic right turn tractor-trailer truck accident case. In order to make a right turn in the tractor-trailer, it was necessary for the Defendant truck driver to use two lanes of traffic. I think it is also incumbent upon the Defendant to make sure no one is coming when he makes that right turn, although this requires waiting for a moment while checking his rear view mirrors. In this case, the truck driver made a quick right hand turn into my client, who was apparently in one of his blind spots.

Now, onto the subject of this blog. During his deposition, the truck driver told me that he keeps a log of the driving he does in his tractor trailer. Motor Carrier Safety Regulations regulate the permitted hours a truck driver can be on the road and require the truck driver to keep a log of his or her trips. Obviously, reviewing this log is helpful in establishing liability, primarily to determine whether the truck driver was in a hurry or the likelihood that fatigue was a factor in the truck accident. When I asked the question, his lawyer (who handles almost exclusively truck accident cases - nice guy and a good lawyer) spoke up and said that the log had been destroyed.

In this case, when the trucking company destroyed the log, they knew of the potential litigation. But they destroyed the log anyway. Why? Who knows? It could have been an innocent mistake, or they could have been hiding something. We will never know. What happens at trial in Maryland in this situation?

Naturally, as lawyers, we use a Latin expression to address this problem: omnia praesumuntur contra spoliatem, which means "all things are presumed against the spoliator." Maryland has adopted this maxim under the assumption that people do not destroy evidence that would be helpful to their case. Accordingly, under Maryland law, when evidence is destroyed by a party who knows, or should know, of the evidence's relevance to a potential lawsuit, the aggrieved party's attorney will ask the judge for a jury instruction that the destruction or alteration of evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator. See Anderson v. Litzenberg, 115 Md. App. 549, 561-562 (1997).

In such a serious case I do not think they will contest liability because they will lose credibility on their damages arguments if they do. But, if the truck driver's lawyer does not concede liability, I think their failure to keep this log will likely inflame the jury and lead to a higher damage award.

For more on spoliation in Maryland, click here.

One time consuming part of answering interrogatories is the actual typing input of the interrogatories. From a staffing standpoint, it is time consuming. Typically, our paralegals will scan the interrogatories as opposed to typing them from scratch. Most defense lawyers send out the same interrogatories in car accidents or truck accidents, and most lawyers we face we see regularly, so we simply pull up their old interrogatories and change the answers.

Today we received interrogatories in a truck accident case from a lawyer we have never had a case against in the past. One of our paralegals simply called the lawyer and asked if she would email the interrogatories, which she gladly did immediately.

From now on, we will give this a try when we face a new lawyer. Conversely, for all of you Maryland lawyers out there defending personal injury cases, if you ask us to email our discovery to you, we would be glad to do so.

For more information on drafting and answering interrogatories in Maryland, click here.

On Wednesday, June 21, 2006, at 4:45 p.m. in the Prince George's County Circuit Court Law Library, Judge Julia B. Weatherly and Judge Thomas P. Smith (an article on discovery written by Judge Smith was covered in an earlier blog post) will speak. The topic of the talk is discovery and continuance practices in Prince George's County.

One of the benefits for attorneys handling personal injury cases on behalf of injury victims is that plaintiffs' lawyers are far better able to dictate the pace of the litigation than defense attorneys. Some accident lawyers squander this opportunity by failing to fully load the gun before firing it. When our attorneys file a lawsuit, we serve the defendant with the Complaint, Requests for Admission, Interrogatories, and Request for Documents, and Expert Designations.

Our lawyers have always served a full course of discovery with our Complaint. What we have been doing in 2006 is filing our expert designations along with our Complaint. It is one more hoop a lawyer has to jump through when filing a Complaint but it takes away another deadline you will need to meet down the road. I just did a quick Lexis search typing in different searches to pull up missed expert deadline cases. In just a few minutes, I found hundreds of cases.

The only caveat to this is that you still need to put the expert deadline on your calendar and check off the list to make sure that you do not need additional experts for trial. Sometimes, you think you do not need an economist or a vocational rehabilitation expert when you file suit but you find out that you do over the course of the case. You may also find additional treating doctors over the course of the case if you client is still suffering from his or her injuries that you may want to add down the road.

Happy Mother's Day to all!

In Maryland, each party is allowed 30 interrogatories under Maryland Rule 421 without leave of the court. I was looking at a case today that was referred to us by a lawyer who had already filed suit in the case. Our lawyers are normally loathe to take a case that is already in litigation but the referring lawyer has referred a lot of work to us over the years so we agreed to step in and take over the case. It is a complex case involving serious injuries but the defendant's attorney has posed serious questions as to causation of the Plaintiff's injuries (previously non symptomatic patient with a herniated disk with an MRI that shows degeneration in the discs). I would love to ask additional interrogatories but the referring attorney, who is a great lawyer, filed 30 interrogatories with the Plaintiff's Complaint.

The lawyer was probably under the mistaken impression that you cannot file multiple sets of interrogatories. This was the rule until 1994, when Maryland Rule 2-421 was amended to allow parties to serve multiple sets of interrogatories. Of course, the total number of interrogatories still may not exceed thirty.

Given this rule, our attorneys typically serve a first set of initial interrogatories and file ''clean-up'' interrogatories after putting together the initial facts. When using multiple sets of interrogatories, another tactic our personal injury lawyers often use is alternative interrogatories, drafted in light of the defendant's attorneys answers to requests for admission. If the defendant's lawyer denies a request for admission that goes to a critical component of Plaintiff's personal injury case, a alternative interrogatory asks for all facts, witnesses and tangible evidence the defendant intends to rely upon at trial to support the defense lawyer's denial. This tactic is also explained by Even Schaeffer in his trial blog. For a sample of the use of multiple sets of interrogatories, click here.

Another thought for attorneys answering interrogatories in Maryland and in many other jurisdictions. Often, the scheduling order is unclear about whether the discovery deadline is the deadline to file interrogatories or to have "all discovery completed." If the answer the latter, your actual deadline to file discovery is 33 days (30 days plus three mailing days) before the discovery deadline. Accordingly, you calendar system should include a deadline to serve additional discovery (or to file a motion to compel) a least 33 days before the discovery deadline (or whatever amount of time your state's local rule calls for).

Related Posts:

Sample Interrogatories in Personal Injury Cases (same interrogatories in auto accident, truck accident, uninsured motorist, medical malpractice, slip and fall, products liability, legal malpractice and general negligence cases)

One of the most tedious chores accident attorneys in Maryland must perform is the collection of medical records in personal injury cases. How much can health care providers charge Maryland lawyers for copying the medical records? The short answer: a lot. The Maryland Health-General Annotated Code §4-304 sets for the maximum charges:

• $19.70 as a "preparation fee"
• $0.65 for each page
• The actual cost of the postage

The statute actually reads $15.00 as a preparation fee and $.50 a page but fees increase yearly with the consumer price index (thankfully not the cost of health care). Not surprisingly and I do not blame them, many providers will not release the medical records to an accident lawyer until the fee has been paid. But the health care provider cannot refuse to produce the medical records because of an outstanding bill for the care and treatment rendered.

Under Maryland Health-General Annotated Code §4-403, health care providers must maintain medical records for five years. Medical records for minors may not be destroyed until the patient reaches the age of majority plus three years or for five years after the record or report is made (whichever is later). Interestingly, on their web site, Medical Mutual, the leading medical malpractice insurance company in Maryland, suggest that doctors keep their medical records indefinitely. Many Maryland attorneys I have spoken to also maintain their legal files indefinitely.

A few days ago, I wrote about Prince George's County, Maryland Circuit Court Judge Thomas P. Smith's article entitled Alice in Discovery Land (A Practical Guide to Recurrent Discovery Problems) that appeared years ago in Maryland Litigator, quoting Judge Smith's comment about the oxymoronic phrase "Independent Medical Exam."

Personal injury lawyers in accident cases on both sides of the aisle have their own unique problems. One of the big problems the insurance company's accident lawyers have is obtaining credible medical experts to testify at trial. Attorneys are in a catch-22: they need doctors who regularly testify because of the volume of cases that they have but doctors who are willing to have spend much of their practice testifying for insurance companies have little credibility. As a result, most of their experts are deeply wedded to the insurance companies, a fact that is rarely lost on jurors.

When the defense lawyer's asks for an IME, we send out a list of conditions before agreeing to the exam. We also subpoena the doctor's records. In most cases, the doctor refused to respond to the subpoena because they do not want to reveal the extent to which they are wedding to litigation related work generally and, specifically, to the insurance companies. Consequently, the defendant's lawyer's is forced to withdraw the expert.

A few random thoughts about cross-examining the IME doctor:

• How much money do you make? Studies are showing that more and more, high priced hired gun experts (even as opposed to high priced treating doctors) are being increasingly discounted by juries.
  
• The IME doctor usually performs only a cursory evaluation of the injury victim. This should be contrasted to the numerous examinations and conversations with the injury victim by the treating doctors. Accident lawyers should give their clients forms to fill out immediately after the evaluation that asks for, among other things, how much time the doctor spent with the injury victim and what questions he asked. If the doctor did a quick review of the patient, the patient's personal injury attorney should bring this out the direct examination of the client.
  
• Do you agree that there can be honest differences of opinions among doctors? Medicine is not all black and white, right? When the IME doctor agrees -- as he/she must do -- it lends credence to the treating doctor's opinion.
  
• Parse the expert report. Invariably, to maintain some credibility, the IME doctor will throw you a bone or two. Cross the expert with it.
  
• If the treating doctor consulted other doctors in evaluating the patient, the plaintiff's accident lawyer should point out the IME doctor did not. This underscores the difference between an examination for medical purposed and an exam for an insurance company in a lawsuit.
  
• Often, defense experts are named before they evaluate the patient or even see a single medical record, largely because the insurance company's lawyers know they will see the case as they are paid to - the insurance company's way. The IME doctor loses a lot of credibility when the plaintiff's accident lawyer points this out to a jury.
  
• If the IME physician practices in the same community as the treating doctor, ask the IME doctor if he considers the treating doctor to be a well-respected physician in the community. There are no bad answers to this question.

For more ideas on cross examination of an IME doctor, select here for a sample cross-examination.

Continue reading "Independent Medical Exams: Personal Injury Attorney Cross Examination of Defendant's Medical Expert" »

I had the opportunity last night to read an article written by Prince George's County, Maryland Circuit Court Judge Thomas P. Smith entitled "Alice in Discovery Land (A Practical Guide to Recurrent Discovery Problems)" that appeared years ago in Maryland Litigator, a periodical which I believe no longer exists. There are a lot of interesting points to made by Judge Smith. Reading his article reminds me that an article like this allows a lawyer to be included in the thoughts of judge in the same way a focus group provides a lens for a personal injury lawyer to a potential jury. Both are engaged in thought processes that a lawyer thinks he or she can decipher, but it is often more difficult than they realize. Because a lawyer cannot hire a focus group of judges every time you file an important motion, they next best thing an attorney can do is read whatever you can find by practicing judges on discovery issues to get a better insight into their thinking.

I found of particular interest Judge Smith's thoughts on "Independent" Medical Exams ("IME"). "Of all the oxymorons in the world," Judge Smith writes, "an Independent Medical Examination occupies first place by thousands of leagues. These is nothing independent about the process; it is hardly undertaken for any medical purpose and all to often resembles an inquisition rather than an examination." This sounds obvious to the plaintiff's personal injury lawyer but it is good to here this sentiment from a well respected judge.

The article addresses a number of issues that we have debated with defense lawyers of late: location of the exam, the general conditions of the exam, including who can be present, whether the exam can be videotaped, and issues related to dealing with what we call "frequent flyer" defense experts.