Maryland Injury Lawyer Blog

Dr. Louis Halikman is orthopedic doctor that many insurance companies in Maryland - most notably State Farm - frequently use to defend car accident cases. "Frequently" is probably charitable; by his own admission he makes somewhere between $30,000 and $35,000 a month providing expert services for insurance companies.

Am I a big fan of Dr. Halikman? No. It is not that I don't think he is a good doctor. He's a smart man with good credentials, which is why insurance companies are lined up at his door. Moreover, being well paid by one side or the other does not necessarily mean the doctor is in bed with that party. But it is my opinion that he either has a philosophical anti-plaintiff animus or, more likely, his opinions are colored by the fact that insurance companies have paid for his services on the level they have for the last 25 years.

In my last trial with him, last summer, he pretty much claimed that our client was as injured as badly as she was because she was overweight, putting more force on her ankle when she fell. It was such a mean spirited and cheap shot. He also claimed she would have healed faster if she had gotten bariatric surgery to take off weigh. He didn't give much concern to the mortality risks of the procedure that he wanted to impose on our client. (The jury saw it for what it was and awarded over a half a million dollars.)

Continue reading "Dr. Louis Halikman and Mercy Hospital" »

We sent Progressive Insurance a demand letter in a case where the client had some pretty serious injuries, including 50 staples in her head to close a scalp laceration. Progressive faxed us a letter stating it cannot conclude its investigation until we obtain different bills from the medical providers that are on certain health claim forms, because Progressive wants the individual CPT codes for every visit. CPT codes are numbers assigned to every task or service a doctor may provide to a patient.

Are CPT codes necessary for Progressive Insurance to determine whether medical care rendered was fair, reasonable, necessary, and causally related to the car accident? I think the best way to frame the question is to ask whether a jury can render a verdict without CPT codes. The answer, of course, in that I have never in my life heard testimony that included CPT codes at trial.

Continue reading "Progressive Insurance = File Suit" »

The Governor signed yesterday a bill that allows auto insurance companies in cases where the at-fault driver has insufficient insurance coverage to consent to settlements against the at fault driver without (1) limiting their right to raise any issue relating to liability or damages in an action against the insurer; and (2) admitting as to any issue raised in an action against the insurer.

The Maryland General Assembly made history with the bill: nobody is mad. Insurance companies are ecstatic and trial lawyers are largely indifferent.

You can read about the genesis of this bill here.

State Farm recorded another win in a family use exclusion case this week in the Maryland Court of Special Appeals, in Stickley v. State Farm.

This is an awful case. Plaintiff was a passenger in a car accident in Montgomery County in which her husband was killed. Plaintiff suffered catastrophic injuries. Plaintiff and her husband had coverage with State Farm, which provided typical coverage for State Farm, at least in Maryland: $100,000 per person/$300,000 per accident. Plaintiff also had a $2,000,000 umbrella policy with State Farm. Plaintiff's lawyer obviously wanted to get to the umbrella.

Regrettably, the State Farm umbrella policy included an exclusion for personal injury claims that result from the negligence of another insured. Plaintiff's lawyer sought a declaratory judgment, claiming that her Umbrella Policy constituted "private passenger motor vehicle liability insurance," voiding the family use exclusion regardless of the unambiguous language of the policy.

The question, ultimately, is whether the personal liability umbrella policy is a policy of “private passenger motor vehicle liability insurance,” thereby requiring an insurer to offer coverage under the umbrella policy for a claim made by a family member in the same amount as the coverage made by a nonfamily member, pursuant to Ins. § 19-504.1.

Continue reading "State Farm Family Use Exclusion: A New CSA Opinion" »

A divided Maryland Court of Appeals has made new law today. In Tracey v. Solesky, the court ruled that in dog bite cases involving a pit bull or cross-bred pit bull mix, it is no longer necessary to prove that the dog in particular or pit bulls in general are dangerous. Is this a win for plaintiffs' lawyers? Is it an anti-dog opinion? Will it lead to changes in homeowners' policies throughout Maryland? With apologies to Steven L. Miles, let's talk about it.

This case involves a pit bull named Clifford who lived in East Towson, just two blocks from York Road and the Towson University campus. While a big fellow like Clifford the Big Dog, this Clifford was a bit more viperous. One day, Clifford attacked two boys on the same day in Towson, Maryland. The injuries to the second boy were serious: he needed five hours of surgery at Johns Hopkins Hospital to address his injuries, including surgery to repair his femoral artery. He spent seventeen days in the hospital, had additional surgeries, and spent a year in rehabilitation. I'm not sure how old the boy was but, either way, it's just an awful thing.

The boy and his parents brought suit against the owners of the pit bull that mauled him and the owners' landlords. The owners of the dog went into bankruptcy and received a discharge of their debt. The only defendant standing was the landlord (Although the Long & Foster lease executed allowed Clifford's owners to keep an "American Bulldog Terrier" on a property that did not have a fence.).

Continue reading "Strict Liability for Pit Bulls in Maryland" »

Last week, I wrote about a stunt that a defense lawyer pulled with a defense medical exam in a car accident case. This week's sneaky defense lawyer trick involves a creative effort to depose plaintiffs' medical expert twice in a wrongful death medical malpractice case.

Here's what happened. Shortly after our lawsuit was filed in Anne Arundel County, against Baltimore Washington Medical Center, the hospital's lawyer noted the deposition of plaintiffs' expert. We noted the deposition of a key fact witness before the plaintiffs' expert's deposition. The defense attorney claimed an apparently inalienable right to depose our expert before any fact witness, and then to get a second crack at the expert down the road, after he had the opportunity to review the fact witness' deposition. So defense counsel filed "Defendant's Motion to Compel the Deposition of Dr. [Expert's Name] and Request Protective Order for the Deposition of [Fact Witness Nurse] and Rule 2-432 Certificate." This motion should be denied on the goofy title alone.

The motion begins with the perfunctory arguing of the merits of the case and the requisite taking the facts out of context. What this has to do with the merits of the motion is anyone's guess. The motion then advances to the ridiculous argument that the defense lawyer can conduct discovery based on the Certificate of Merit. I give them credit for boldness: they come out and admit they want a second deposition of the expert if he intends to testify at trial.

Here comes the tricky part. To support their argument, defense counsel attached orders from Baltimore County Judge John F. Fader, and Prince George's County Judges Thomas Smith and Leo E. Green, that purportedly issue similar orders in other malpractice cases to the one that defendant seeks here. I say "purportedly" because who knows what the facts of those cases are? That is why precedent is not made from reading orders, but reading the entire opinion so we can understand why the court ruled as they did and what facts were germane to the ruling.

Continue reading "Sneaky Malpractice Defense Lawyer Tricks" »

U.S. District Court Judge James K. Bredar ruled this week that a legal malpractice insurer - our carrier Minnesota Lawyers Mutual, who I would recommend by the way - does not have to provide coverage for a legal malpractice claim because its insured attorneys did not provide adequate notice of a potential claim. As a result, they failed to meet a condition precedent for insurance coverage.

If you are a Maryland lawyer, you ought to read and understand this case. Alternatively, read this blog post. Or, just understand this: if you think there could be a legal malpractice claim against you, report it quickly. Do that and you will be okay. Otherwise, you are playing with fire.

The facts are convoluted in this commercial litigation case. Basically, D.C. lawyer is pro hac vice admitted into Maryland, but did not appear to really know what she was doing in handling the case, including failing to understand some pretty fundamental tenants in who to respond to a motion for summary judgment. Whether or not this was just negligence in the air or whether the mistakes actually caused harm to the client was less clear. Minnesota Mutual hung around and defended the legal malpractice claim for a bit, but then stepped out and denied coverage.

Continue reading "New Legal Malpractice Coverage Case" »

After agreeing to a defense medical exam, we received a letter from defense counsel with a draft agreed upon order to be filed with the court agreeing to the DME. Here is letter and the order. This is the first time I have seen a defense lawyer try to do this.

While it is all rather harmless in most cases, why in the world would a plaintiff's lawyer sign this? Without reference to any conditions, the client agrees to the exam without qualification for nothing in return? I wish I knew what percentage of plaintiffs' lawyers just sign this and send it back. It must work at least occasionally, or he wouldn't still be sending this out (unless he just wants a reason to put down .2 on his time sheet). I also think it is really annoying because you have to respond - you can't let a "the doctor is going to bill you $600 for a missed appointment" sit out there without a response. (Well, maybe you can but I think you have to respond to set the record straight.)

Continue reading "Defense Lawyers Looking for Every Advantage" »

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 a car accident lawyer, you want to get the jury mad at the defendant. Jurors give more money when they are mad. This is hard in car accident 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. Good car accident lawyers 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 good plaintiffs' lawyers 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 lawyer was doing everything he could to put his 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 "Defendant Was a Drunk Driver: Should That Be Admissible" »

Can We Streamline Jury Trials?

Forbes, via Overlawyered, has an interesting article on Houston lawyer, Steve Susman's efforts to covert lawyers on both sides of the aisle to try more jury trials... and make cases easier to try. How? Buy reaching stipulations on all of the dumb things lawyers argue about and seek to discovery before trial.

Great idea that will never work in vehicle accident or medical malpractice cases in Maryland. Why? Rule #1 of being an insurance defense lawyer for both in-house and outside counsel is don't screw up by doing something outside of the box. For example, one suggestion Susman makes is to agree in advance not to depose each other's experts. After a large verdict, every insurance company starts doing a CSI forensics witch-hunt. "You did not depose the plaintiffs' experts. Why? Did you get permission for Jonathan P. Paperpusher for that decision?" Insurance companies are not promoting (in-house lawyers for car insurance companies) or doling out work to lawyers (outside counsel) who take outside-the-box risks that could backfire. Insurance companies give out a lot of love to singles hitters, but far less to home run hitters who occasionally strike out.

Continue reading "How to Try More Cases" »

There is a bill pending in the Maryland Senate to overturn the Maryland Court of Appeals opinion in Maurer v. Pennsylvania National Mutual Casualty Insurance six years ago. This bill allows car insurance companies who have underinsured exposure, because the at fault driver has insufficient insurance coverage, to consent to settlements against the at fault driver without (1) limiting their right to raise any issue relating to liability or damages in an action against the insurer; and (2) admitting as to any issue raised in an action against the insurer.

Continue reading "Underinsured Motorist Coverage Maze: A New Bill to Clean Up (a Little)" »

U.S. District Court Judge Catherine C. Blake issued a fascinating opinion this week in Allstate v. Warns, denying a former Allstate adjuster's motion for summary judgment in a "we think you stole our documents and provided them to the plaintiffs' lawyer" case. The facts are juicy. It is more than worth the time to lay them out. Get some popcorn and head back over here.

Welcome back. Defendant was an Allstate claims adjuster for 33 years, handling only lead paint cases during the last 5 years of her Allstate tenure. Seemingly, the very definition of a company gal. I would think that if you stay at Allstate for 33 years, you would be ordering extra glasses of the Colossus Kool-Aid and all the other noxious potions they are concocting in the lunch room over there.

The first clue that this adjuster had fallen of the wagon is that she invited a number of plaintiffs' lawyers - including the plaintiffs' lawyer, that is going to hire her in a second, who she had ongoing lead paint cases with - to a party at her house. Allstate, probably monitoring the cameras it has installed at the homes of all its employees, found out and confronted the adjuster. Later, Allstate - alleges anyway - that this same plaintiffs' lawyer had sent her flowers, gifts, and cards while she was at Allstate. Allstate says the adjuster quit, claiming she was going through personal issues. The adjuster was next seen by Baltimore Housing Authority lawyers, no strangers to controversy themselves; passing what someone thought was a confidential Allstate instruction manual on lead paint cases at the trial table of the flower/card/gift sending plaintiffs' lawyer. (That might not be exactly how Allstate found out. Humor me. The story reads better that way.) So Allstate sued her.

Continue reading "Allstate v. Former Allstate Adjuster" »

The purpose of pre-verdict interest is to require a person who owes money to pay for the time value of money, which is the advantage received from the use of that money over a period of time. In contract dispute cases, Maryland provides for 6% prejudgment interest.

In personal injury cases, many of plaintiffs' damages also occur immediately. Just like contract cases, Maryland personal injury victims are deprived of the use of money to which they are entitled to receive the moment the injuries are incurred. Yet tort victims get no interest on money that accumulates.

Of course, insurance companies are premised on the idea of time value of money. Take premiums, invest the money, and - reluctantly - pay out claims later. While I think the idea that insurance companies stall to delay making payment is sometimes overblown (administrative considerations give insurance companies some incentive to move files forward), there is still no question that there is economic incentive to delay because the longer they hold the money, the more interest they will receive.

Continue reading "Pre-Verdict Interest" »

John Bratt writes on the Baltimore Injury Lawyer Blog how defense attorneys in car accident cases are using assignment and authorizations to cross examine plaintiffs' experts. "You have a vested interest in how this case turns out, don't you?" or "In a sense, you have a contingency fee agreement with this client, don't you, doctor?"

I don't think think the fact that the expert's office signed an A&A with the client should be admissible at trial. But not every judge is going to agree with me on that.

This is hysterical:

Hello Mr. Miller:

My name is Mary [deleted], and I'm working with Allstate Insurance to ensure they are being accurately and effectively represented online.

I was reading your article "I Support Allstate" at http://www.marylandinjurylawyerblog.com/2012/01/i_support_allstate_1.html and noticed that while you discuss Allstate (thank you for your interesting thoughts) there is no link to Allstate's website for your readers to click on.

I wanted to provide you with Allstate's site in the hopes that you would include a link within your piece. Allstate's website is located at http://www.allstate.com/. Please let me know if you require more information in order to make this edit possible.

Thanks so much for your consideration.

Mary
[Name Deleted]
Performics
On Behalf of Allstate Insurance
111 E. Wacker, Suite 1500
Chicago, Illinois 60601
e:[deleted]

We have our share of struggles with Allstate in car accident and other personal injury cases. Allstate can be a very difficult company to deal with when they are defending either first or third party injury claims. But Allstate just won a big fight - a critical fight for them - in front of the Maryland Court of Appeals. And I'm glad they won.

Allstate decided to stop writing home insurance policies in Southern Maryland, the Lower Eastern Shore, and some properties on or near the waterfront in Anne Arundel County. Why? Allstate thinks that the spate of of hurricanes that have pounded the eastern seaboard in recent years may not be anomalous but instead are the result of increases of tropical sea surface temperatures (or whatever else it might be). Allstate does not care why. What Allstate does know is that it no long wants to bear the risk of catastrophic financial losses if a hurricane hits these at risk areas.

The Court of Appeals agreed that Allstate had a reasonable basis. Judge Harrell, in his dissent, says that Allstate has decided not to write new homeowner’s insurance policies in these areas because of an unsubstantiated fear of a hypothetical force of nature, a Category 2 or greater hurricane making landfall in Maryland. I agree. But is he sure? Couldn't reasonable minds differ on this? Does anyone really have an handle on the degree that global warming is going to impact the future? I think the answer is that no one really has a clue and, accordingly, Allstate should be given the discretion to decide for itself. I also think the applicable laws - § 19-107 and § 27-501 of the Maryland Insurance Article - give them that ability.

Continue reading "I Support Allstate" »

When picking a jury, peremptory strikes are a big deal. There are almost invariably a few prospective jurors that are high up on the roll call that you just know are anti-plaintiff. I don't know how I actually know this - you get just a glimpse of Maryland jurors in voir dire - but I just do. They have this indescribable "I assume the plaintiff's case is garbage and I can't believe I'm here" look. Defense lawyers have a similar fear, of course, terrified of the "I can feel your pain to the point where I'm able to set aside logic and reason" look. Both of these jurors get rooted out by peremptory strikes. And the "look" is fair game as long as it is not based on race, religion, or gender. In Maryland, you get four peremptory challenges plus one peremptory challenge for each group of three or less alternate jurors to be impaneled. So, generally, you get 5 strikes.

Maryland car accident lawyers on both sides of the aisle now assume that Maryland law, after Maurer v. Penn National, is that if an uninsured motorist insurance company waives its subrogation interest in a case when the at fault driver offers her policy limits, that insurance company cannot contest liability at trial.

Plaintiffs' attorneys in Maryland disagree as to whether this is a good rule. Clearly, the problem with the rule for plaintiffs is that insurance companies are less likely to waive subrogation when the underlying insured offers policy limits. This means you have to deal with two sets of defense attorneys which means almost twice the hassle. Insurance companies are also doing side deals now, where the underinsured motorist carrier waivers subrogation on the DL (that's "down low" if you were not cool ten years ago), presumably with a pinky promise.

What does this have to do with jury strikes? Well, defense lawyers try to parlay this double lawyer albatross into double strikes. Can they do this? Maryland Rule 2-512 (h) says that multiple plaintiffs or defendants should be considered a single party unless the court finds that "adverse or hostile interests between plaintiffs or between defendants" justify separate challenges.

In uninsured and underinsured motorist cases, it is hard to claim that the interests of these parties are anything other than the same. But I got broadsided with this argument a few years ago during a trial in Baltimore County. It was a tough case anyway, I was in Baltimore County and, over strenuous objection, both the at-fault driver and the underinsured motorist carrier (MAIF and GEICO) were given strikes. I don't have to tell you how it turned out: awful. (Yet, still, it was more than the settlement offer which pretty much summarizes dealing with MAIF and GEICO).

Continue reading "Jury Strikes Matter" »

Dear USAA:

You have some of the best, most sophisticated adjusters of any car insurance company out there. Generally speaking, you make more reasonable settlement offers than the other companies with big car insurance market share in Maryland (better than GEICO, State Farm or Allstate). Sure, you force us to try some cases against you to pay our clients a fair settlement value. And, yes, you would probably shoot your own parents in the head to save a buck. But, really, in the insurance company world of relativity, you are not that bad.

Now that I have finished the flattery, could you do me one small favor? Teach your insurance adjusters in personal injury cases that there is something called the collateral source rule in Maryland. You simply cannot deny a lost wage claim because you "suspect the client was being paid anyway."

At first, I thought it was just one bodily injury adjuster at USAA who did not understand Maryland law. But I'm now convinced that less than half of USAA adjusters understand this rule.

Even more maddening, when the adjuster is called out on this obvious point of law that Maryland has had for - count them - 112 years, that the claimant is paid for time missed from work regardless of whether they used vacation time or their employer paid them out of the goodness of their heart, USAA adjusters simply refuse to admit or deny the existence of the collateral source rule.

Thank you in advance for your anticipated cooperation.

Sincerely,


Ron Miller

Continue reading "Dear USAA: An Open Letter" »

In State Farm v. Cavoto, a Pennsylvania appellate court decided a battle between two parties that are always at odds, State Farm and chiropractors. Usually, the skirmishes between these parties are fought by proxy but, in this case they faced off directly.

Essentially, State Farm got fed up with paying chiropractors who were billing for adjunctive procedures performed by support staff who were not licensed. Particularly, and arguably understandably, annoying to State Farm was unlicensed people applying hot and cold packs, turning on and off mechanical devices, using a traction machine and assisting in therapeutic exercises. I'm sure that most infuriating to State Farm is paying for someone without medical training to apply hot and cold packs. If you can't see why State Farm takes exception to that -regardless of how you view the merits of it - you may have had one drink too many from the plaintiffs' attorney Kool-Aid.

The appellate court didn't look at the case quite that way. Instead, the court applied the law that appears to allow unlicensed staff members to provide some treatment. The court reasoned that the real medical care was the decision to give the hot or cold packs and for how long, not who applied them. Similarly, the court reasoned, most elements of applying electrical muscle stimulation, ultrasound, and the like do not require specialized skills, as long as there is a chiropractor making the decisions about the details and how the therapy should be applied. Accordingly, the court remanded the case back to the trial court to "make more specialized findings and determine whether any of the procedures allegedly performed by unlicensed personnel required formal chiropractic education or training, including further inquiry by the court as to the scope of those procedures."

Continue reading "State Farm v. Chiropractors" »

I read four personal injury related appellate opinions that were published last week that I think are worth reading:

Thibodeaux v. Trahan: Like most personal injury lawyers, I have been hit with post-trial remitter motions from defense attorneys claiming that the jury’s verdict was unreasonably high. But no plaintiff’s lawyer is silly enough to file a post-trial motion for additur to raise the verdict because it is never going to work. I think federal law prohibits additur in federal court jury awards.
Someone forgot to tell the Plaintiff’s lawyer in this rear-end accident bus case in Louisiana who appealed the trial court’s failure to award future pain and suffering. The appellate court changed not only the comparative negligence allocation but increased the plaintiff’s damages, finding that the trial court failed to award enough damages.

Crazy, right? The facts were unique. This was a bench trial where the trial judge specifically found that the Plaintiff will need future surgery for her knee but did not award damages. Juries, I guess, get a pass on inconsistencies in their verdicts because it could be the result of compromise. But a trial judge deciding damages cannot form a compromise in her own mind and has to make an award consistent with the court’s findings. (Actually, I read this malpractice opinion that was decided last Thursday that makes a similar point.)

Louisiana law allows the appellate court to increase the award to the lowest amount reasonably within the trier of fact’s discretion. I don’t think Maryland law prohibits additur but there is no recorded case in Maryland where the trial court increased a damage award. I don’t know why, if we have remitter we should have additur under Goose v. Gander.

Osorio v. One World Technologies: The First Circuit affirmed a $ 1.5 million award in a product liability case in Massachusetts involving a defectively designed power saw that Plaintiff’s employer bought at Home Depot.

Plaintiff’s hand injury occurred on a construction site while operating a $179 Ryobi Model BTS15 benchtop table saw bought at Home Depot. While cutting a piece of wood, Plaintiff’s left hand slipped and went into the saw’s blade.

Plaintiff’s attorney put up a witness at trial who invented a device that allows a table saw to sense when the blade comes into contact with the user’s body and stops the blade from spinning. This is very cool, of course, but none of the major table saw manufacturers bought the invention.

Plaintiff’s theory as to why? Basically an Oliver Stoneian conspiracy theory that the manufacturers' failure to incorporate this invention is because of a collective understanding that if any of them adopts the technology, then the others will face heightened liability exposure for not following suit.

Honestly, I’m not sure that entirely even makes sense and I really doubt that is what happened. The messenger is a bit suspect, too: the guy who failed to sell table saw manufacturers on his technology.

Continue reading "Four Personal Injury Opinions From Last Week You Should Read" »