This month I am astounded by the difference between Virginia, Washington, D.C. and Maryland in median nursing home liability verdicts and settlements since 1987. The median recoveries in Maryland and Virginia are $125,000 and $175,000, respectively. This means that the median settlement and verdict in Virginia is 40% higher than Maryland. Virginia juries are generally more conservative than Maryland so this result is somewhat surprising. But here is what I find surprising: the average nursing home case settlement or verdict in Washington, D.C. is $700,000.

I have not done any sort of sophisticated jurisdictional analysis but I believe there is a general correlation between the size of nursing home verdicts and the size of medical malpractice verdicts. Yet these figures do not appear to support this conclusion. Metro Verdicts Monthly reports that the median settlement and verdict in Washington, D.C. for wrongful death medical malpractice cases over the last 20 years is $665,700. This is much less than Maryland’s median recovery of $900,000 or Virginia’s median recovery of $750,000.

These statistics would surprise me less if the study used average instead of median because the average can be influenced by extremely high verdicts or settlements that can create a misleading picture. But the median settlement or verdict number means that the study divided the jury verdicts and settlements into two equal groups, half having settlements or verdicts above the median and half having settlements or verdicts below the median.

After the verdict, Defendant’s medical malpractice lawyer gave this quote to the Maryland Daily Record: “This reaffirms my long held view that it is extremely difficult for a physician to get a fair trial in Baltimore City, particularly where there is a bad outcome and a sympathetic Plaintiff.”

If I were the reporter, I would have asked a few follow-up questions. Do you think that the people of Baltimore are not as smart and more prone to emotion then, let’s say, a Baltimore County jury? Why do you think this is? Is it just medical malpractice cases we cannot trust them with or all cases? What should we do about this problem with Baltimore City jurors? Should we replace Baltimore City jurors with the right kind of people, like the good folks in, let’s say, Potomac. If Baltimore City jurors can’t be fair on juries, should we continue to trust them to vote?

Congratulations to the malpractice victim and her lawyers Charles J. Piven of Brower Piven in Baltimore and Barry J. Diamond.

The Times also reported that a GAO report found that the FDA will need an additional $56 million next year to conduct inspections of foreign manufacturing facilities of pharmaceutical drugs. This is incredibly convenient for the FDA because it creates the appearance that the problem was they did not have enough money to inspect the plants. But the failure to inspect the Chinese plant stemmed from the fact that they confused the names of the plants and thought that plant had already been inspected, not a lack of resources to inspect the plant in the first place. Classic pass the buck.

The FDA is also suggesting that had they inspected the plant they still would not have uncovered the contaminant. Maybe that is so, I really don’t know, but don’t you think that had the FDA rolled in, someone in that Chinese heparin manufacturing plant might have said, “Gee, maybe we should take the oversulfated chondroitin sulfate out of the heparin.”

In the end, however, Baxter is the one responsible for a safe heparin product. What was Baxter doing to test heparin to verify its safety? As I have written time and time again, there is nothing inherently wrong with making our pharmaceutical drugs and medical devices in China because it does lead to lower prices at home. But, be it China or Kathmandu, if you are going to go further away from your product you have to put systems in place to make sure the product is being safely manufactured, particularly if it is a life saving product for vulnerable patients, like heparin.

In other news, the Maryland Daily Record reports today that American Capital Strategies Ltd., which has as a 90% interest in one of the companies involved in the chain of distribution, is a Maryland-based company. This is interesting, but I don’t think their ownership interest will pierce the corporate veil and Baxter is the deep pocket with ultimate responsibility for the safety of their heparin product. I am quoted a few times in the article about the heparin class action litigation. (I would provide the link to the article but the Daily Record takes down the article after a day or so. But, if you go to the Maryland Daily Record website today, you will be able to find it.)

As I have said before, while these lawsuits have nothing to do with personal injury cases, they have a meaningful impact of the perceptions jurors have of personal injury lawyers and their clients. The message is clear: no one was really hurt and everyone is just trying to make a buck.

But even more incredible than the case settling was the fact that the driver defendant came flew up from his home in Atlanta, Georgia for the mediation. Obviously, he was not required or expected to be there. After the mediation was over, he gave an incredibly articulate two minute speech apologizing to the plaintiff and his wife for the accident. This guy really put himself out in a way that provided him no benefit but he came because he thought it was the right thing to do and he wanted to accept responsiblity. It was one of those things that really gives you a warm, fuzzy feeling about our fellow man.

One more feel good story… I got back to my office this morning and a client who case is pending in Baltimore County Circuit Court sent to our lawyers and staff thanking us for our continued hard work. She included with her note what is essentially a $100 tip! Of course, we will send the check back to her but it definitely boosted my spirits when I got here this morning.

I have no idea of what my opinion is on these personal injury loans. It seems like the interest rate and the fees these companies charge is beyond ridiculous. But I'm sure these are risky loans from people who cannot otherwise obtain a conventional loan or even a credit card. As a personal injury lawyer, the loans are difficult because they make resolving the case and getting the client a good outcome all the more difficult. I had a case this year where the client took out a $23,000 loan that morphed into a $75,000 loan in three years. What ended up being a great settlement offer we received in mediation did not look nearly as good to the client who owed $150,000 in medical bills, legal fees, and the repayment of that loan. In this case, we did call the finance company which agreed to substantially reduce their loan from a preposterous return on investment to a mere obscene return on investment. The guy who I spoke to was a lawyer who owned the company and he was pretty reasonable. In the course of my negotiating the lien, I obviously contended that I thought the interest and fees were simply unconscionable. His response was that you cannot possibly know how many of these loans go bad.

Between unconscionable and reasonable, the answer probably lies somewhere in the middle. But obviously, in our free market economy, if there was that much money to be made making these loans, more companies would have entered the market, which would have decreased the overall cost of the loans. This reminds me of personal injury lawyers who complain about the obscene profits insurance companies make. If this were really true, wouldn't we all buy a ton of Allstate stock today? But take a look at their stock over the last three years.

It is worth mentioning that most of these personal injury loan companies have some clause in the agreement with the client that their personal injury lawyer cannot attempt to negotiate the loan. (I hope I am not giving an idea to the companies that don't have that clause.) We take the position that this agreement does not bind us from negotiating the lien and no one has ever suggested that our lawyers are obligated to honor that clause.

In defending some of the documents, a company spokesperson said that many lawyers misinterpreted the documents that refer to how Allstate deals with claims from other parties, not from policyholders. The Allstate spokesperson said many of the documents, which had been picked apart by plaintiff’s personal injury lawyers, refer to claims-handling practices for car accident claims that have been incorrectly assumed to be applied to homeowners’ policies as well.

If this is true, I see Allstate’s point. Accident lawyers whine about Allstate’s bad offers in third party cases. In car accident cases in Maryland, I don’t think GEICO, Progressive, Nationwide, MAIF, or State Farm are making offers that are any different than Allstate’s. But that is not my point. The insurance companies have no obligation in third party cases to make fair offers. Insurance companies can do whatever they want. This is why we have lawsuits.

Moreover, the reason why insurance companies will not pay fair value on my accident claims is because two things have to happen before a bad offer turns into a lawsuit: (1) the accident lawyer has to be willing to file the claim, and (2) the plaintiff has to be willing to file a lawsuit and wait for their recovery. With respect to the former point, accident lawyers who fear filing suit rarely tell their clients they will not file suit. Instead, the lawyer tells the client that it is a great offer and they should accept it. The main reason insurance companies make bad offers is because lawyers let them. The idea that insurance companies – again in third party case – have an obligation to be fair is as absurd as the notion that personal injury lawyers should have the goal of being fair. In the adversary system, if your goal is to be fair, you are doing your client a disservice. This is not to say that you should not recommend fair settlements, but it certainly should not be a plaintiffs’ lawyer’s goal.

First party insurance cases where the insurer has a duty to their insureds to fairly provide compensation for their injuries or losses are a different matter altogether. In these cases, I think there is ample evidence that Allstate has failed to meet their obligations and I would not be surprised if these documents intentionally blur the lines between smart strategies in third party cases where the insurance company has a legitimate objective to pay less than fair value on claims and first party cases where the insurance company has a legal and ethical obligation to pay their insureds fair value for their claims.

Regrettably, this number is going to continue to rise well past 62 fatalities. Our law office alone has received calls in scores of heparin related death cases. Because people taking heparin often have quite complicated health problems, not all of these deaths will be the result of the use of heparin. But a substantial percentage of these deaths are the result of the contaminated heparin Baxter received from China.

Our Baxter heparin recall lawyers are accepting both individual and class action defective heparin recall cases throughout the country. If you want to discuss your heparin case with one of our Baxter heparin recall lawyers, call us for a free consultation at 800-553-8082 or click here for a free Internet consultation.

Okay, the FDA is unable to inspect Chinese factories leading to the deaths of scores of people in the Baxter heparin recall debacle because it is under funded and stretched too thin. So our Supreme Court responds by making them the ultimate gatekeeper and the "great decider" as to whether drug companies are negligent (as opposed to the cute, yet silly, citizens of our country), and Congress responds by giving them even more work – regulating the behemoth this is big tobacco.

Now, incredibly, to complete the governmental insanity trifecta, we need President Bush to join in the fun. Who knew he would be the holdout? My guess is that he will find a way to oblige. He’s good like that. Maybe next week he will declare his plan that if the FDA approves a doctor – a one page Internet application by the doctor should do it - then no medical malpractice action can be brought against the doctor.

The median for foot injuries generally makes sense to me. I’m stunned that the average verdict for an amputated toe is as low as it is. You have to remember that unless this is a lawnmower case, it is likely that the plaintiff suffered other injuries as well. In any event, I certainly think I value my 10 toes more than American juries.

For information the value of foot injury fracture cases, click here.

To call Singulair a popular drug is an understatement. Singulair is Merck's biggest selling drug and one of the world's top selling medicines with $4.3 billion in sales. Singulair is also a leukotriene receptor antagonist. These types of drugs have previously been linked to suicidal ideation and suicide. Two similar drugs, AstraZeneca's Accolate and Critical Therapeutics's Zyflo, will also be reviewed by the FDA. Neither of these drugs have suicide warnings.

Singulair/suicide litigation just might be the next big mass tort. But I doubt it. Unfortunately, 40,000 people a year commit suicide and when you have a drug like Singulair that is used by millions, some of those people are going to take Singulair and commit suicide. Some will even take Singulair and commit suicide in close temporal relationship with the initiation of the drug which really leads people to assume that it must be the drug. But it does not automatically follow that Singulair causes suicide. That remains to be seen and my guess is that Singulair does not cause suicidal behavior. Either way, it is nice to see the FDA is trying to get out in front a potential risk (for once).

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.