Maryland Injury Lawyer Blog

The Maryland Court of Appeals issued an opinion Friday in Spangler v. McQuitty, ending this cerebral palsy medical malpractice case that began 17 years ago. I first wrote about this case two years ago when the Maryland Court of Appeals heard this tragic case involving a boy who was born with severe cerebral palsy. Plaintiffs' malpractice lawyers argued at trial (in Baltimore County) that the doctor breached the duty to obtain the mother's informed consent, when he failed to give her an informed choice of her options to either take the baby early or assume the risks that come with letting the delivery play out. A Sophia's choice. But it was the mother's choice. The jury - to the tune of $13 million - agreed, and found that that the risks and benefits of these options should have been communicated to the patient, but were not.

Continue reading "New Maryland Medical Malpractice CA Opinion" »

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" »

• A Mississippi judge has overturned a massive asbestos verdict, the largest ever for a single plaintiff (though as the Pop Tort points out--see below--Mississippi's damage caps kicked in). The judge who presided over the original case apparently failed to disclose that his parents were pursuing an asbestos claim against one of the defendants. There will be a retrial later this year


• Uh oh. Personal injury lawyers v. criminal defense lawyers?


• Yes, a woman hit and injured by the flying body of a man hit by a train while crossing the tracks can sue the deceased man's estate. This scenario ought to make it onto the bar exam. HT: Overlawyered.


• Those can-you-believe-how-easy-it-is-to-file-a-ridiculous-lawsuit cases you're always hearing about? Yeah, they're often either entirely made up or twisted beyond recognition.


• A New York man's family has been awarded $7.6 million in a wrongful death suit over a hospital's failure to take out the man's gallbladder promptly.


• The Pennsylvania Superior Court has held that Pfizer has to pay more than $45 million to two women who sued, claiming that the hormone replacement drug Prempro gave them cancer.

My partner, Laura Zois, was selected by SuperLawyers as one of their Top 50 women attorneys in Maryland for 2012.

It is a pretty unbelievable honor. There are thousands of female lawyers in Maryland lawyers. I only recognize one other female personal injury lawyer, the well respected Alison Kohler, on the list.

Congratulations Laura!

In all of the hubbub about Robert McDonald's selection to the Maryland Court of Appeals, I neglected to mention the new Circuit Court judges:

• Baltimore County District Judge Nancy Purpura (Baltimore County)
• William Rogers Nicklas Jr., a personal injury lawyer (Frederick County)
• Harford County prosecutor Melba Elizabeth Bowen (Harford County)
• Howard County Court Master William Vincent Tucker (Howard County)
• David Wylie Densford, who I think is a criminal lawyer (St. Mary's County Circuit Court).
• Anne Korbel Albright, a criminal and family lawyer (Montgomery County)
• Gary E. Blair, former chief of criminal appeals in the state attorney general's office (Montgomery County)
• Justin James King, deputy chief of litigation in the Baltimore City (Baltimore County)

This is a time of year for top 10 lists. So I have put together a list of the top 10 opinions of interest to personal injury lawyer from the Maryland Court of Appeals and the Maryland Court of Special Appeals and from the federal bench:

• Poole v. Coakley Williams Construction: the court softens its position on snow and ice slip and falls.
• Jackson v. Dackman Company: court strikes 1994 Reduction of Lead Paint in Housing Act provisions that limit recoveries to children who suffer brain damage from lead paint
• Wantz v. Afzal: court reverses trial court's ruling to strike all three of plaintiffs' experts in a medical malpractice case in Frederick County
• Griffin v. State: not a personal injury case but the court tackles - not for the last time - social media evidence at trial which is going to be a battlefield in personal injury cases
• Multi v. University of Maryland Medical Systems: dealing with the Serbian Bog of use plaintiff in a medical malpractice case in Baltimore City
• Robertson v. Luliano: removal before service in a medical malpractice case in Baltimore City
• Willever v. United States: Judge Roger W. Titus rules that Maryland health claims arbitration rules do not apply in Maryland medical malpractice cases in federal court
• Consolidated Waste v. Standard Equipment: a small, tiny step in the journey toward dram shop liability
• Fletcher v. Pizza Hut: 4th Circuit draws the line on superseding causes in a car accident case
• Janay v. Wilkowsky: Maryland high court reverses Court of Special Appeals in finding flawed jury instruction should give lead paint plaintiff a new trial.

If you think I have left out some important opinions, let me know.

• Are hybrid car drivers better off in case of accident?
• "Still need proof that the U.S. Supreme Court's decision is going to have far-reaching effects in the world of mass torts and consumer class actions?"
• If the same client retains you to sue over a car accident and, later, a plane accident, and you claim in the second suit that the client's injuries were caused solely by the plane accident, and your client testifies in deposition for the plane case that she had no contact with you beforehand, you could be in trouble.
• Liability caps strike again, this time in Pennsylvania. Fill in my usual angst-ridden commentary.
• Segway has been hit with a $10 million jury award in Connecticut after a 23-year-old man suffered brain damage from a fall from a Segway. The injury occurred during a Segway demonstration of its product, during which the man rode through an obstacle course blindfolded and without a helmet. These Segways are crazy cool and crazy unsafe.
• Grandma got run over by a reindeer. And then her estate sued.
• Max Kennerly write about anesthesia risks, which terrifies anyone who goes under.
• Will doing away with arbitration clauses in nursing home cases mean better care for our elderly in the future?
• Eric Turkewitz writes about why lawyers blog.

Speaking of blogging, with Christmas approaching this could be one of my last blog posts of 2011. Google Analytics tells me there are a decent number of people reading this blog on a regular basis. If you are one of those people, I appreciate your stopping by to hear what I have to say. Hopefully, it helped you in your practice or you found it interesting. I'm hoping to put out an even better blog for you in 2012.

Maryland courts turn back slip and fall victim

The Maryland Court of Special Appeals turned back another injured victim under the archaic "Really, do we still have that in 2011?" doctrine of sovereign immunity.

Plaintiff alleged she suffered an ankle injury when she slipped and fell on a wet platform after exiting a train at the Cheverly Metro station in Prince George County. The defendant, the beloved Washington Metropolitan Area Transit Authority, made all the usual - and appropriate defenses. You knew the platform was wet, didn't you? You even saw a yellow warning cone that the platform was wet, right? No one appeared to have mopped the floor to make it wet, did they?

Plaintiff's lawyers got creative and did some research. They found out that WMATA used a cleaning agent "Super Shine-All" to clean its train platforms. The coefficient of friction on the floor, plaintiff argued, was such that no one should have been surprised that the woman would fall. In a trial before Judge Maureen M. Lamasney, a Prince George's County jury agreed and awarded damages (I'm not sure how much).

Continue reading "Slip and Fall Verdict Reversed: Sovereign Immunity Strikes Again " »

The Washington Post reports that Montgomery County Judge Brian G. Kim resigned after reports of a road rage incident began to circulate.

Apparently, Judge Kim was accused of tailgating a woman - yes, it matters to me - because he was believing he’d been cut off. She reported to police that Judge Kim was “zooming up beside me, yelling through the windows and gesturing.” She also said that the Honda reached about 70 mph and zoomed over to her lane, causing her to slam on her brakes to avoid a wreck.

I don't know if it made a difference but judges that make a lot of enemies on the bench have a much harder time making it through a little scandal. Court Watch Montgomery was not real excited about Judge Kim after sitting in on six months of restraining-order hearings in Montgomery County.

Continue reading "Road Rage Judge Steps Down" »

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" »

Awful story. Young and handsome 17 year-old boy is killed in a car accident. Inexplicably, the city morgue decides to display the child's brain. Sure enough, the boy's classmates go on a field trip to the morgue and see the boy's brain floating in formaldehyde. How did they know it was his? The boy's name was on it. (The story actually gets even worse.)

Seriously? The story sounds made up, right down to the part about the kids going to a field trip to the morgue. But no one disputes the facts. Incredible. I usually try to avoid "what a bunch of morons" type rhetoric on this blog. I'll set that aside for this one. What a bunch of morons. They jury in this case agreed, awarding the family a million dollar verdict.

Everyone at that morgue should be fired. No doubt. Still, we have to value the loss not of the boy but of the morgue's negligence. Clearly, the real loss here is the boy's death in the car accident, not what happened to some part of his body after the accident. Plaintiffs' lawyer told the jury that the boy's sister dropped out of school at age 14 because of devastating survivor’s guilt and relentless teasing by other students. Beyond tragic. But this is not what was at issue in this trial.

If I were on the jury, I'm sure I would have cried a lot during that trial. I would have awarded $10 million - geez, at least - for the family against a defendant at fault for his death in the car accident. I also would have been contemptuous of the morgue's idiotic mistakes. But would I have awarded the family $1 million against the morgue? No.

News and thoughts from this week:

• Baltimore moves closer to settling a claim brought by a man who was injured while doing sanitation work as his court-mandated community service.
• The Maryland Daily Record has a big Monday law story on a woman was suing her medical malpractice lawyer. I can't speak to the merits of the case - who know if the allegations are true.=? The problem with these "someone filed a lawsuit against Joe Smith" stories is that everyone remembers the story of the lawsuit but no one will remember if he gets a defense verdict. I'm not saying these stories should run. But it is a little mini tragedy if the trial comes out very differently than the allegations alleged in the story.
• What can Rick Perry's "oops" teach trial lawyers?
• Federal regulators have ordered a Maryland-based trucking company to get off the road, owing to multiple safety violations.
• In other trucking news, a Pennsylvania federal jury ordered a trucking firm to pay $4 million to a man seriously injured when an overloaded tractor-trailer driven by a very small person with insufficient training barreled into the victim's truck.
• "A jury has awarded $2.35 million to the estate of a 56-year-old man who died after choking on a meatball at a Detroit-area nursing home."
• Everyone has an angle on this Joe Paterno/Penn State debacle. One of mine on this unbelievably depressing story: I just wonder if the perfunctory "Oh, these boys' lives are ruined" talk is reallly helping the victims. Hopefully for some of these men, while their lives were ruined for a time, they got over it - at least to a significant degree - and now live happy and productive lives. Inadvertently, I think we are telling the victims that well, of course, their lives are destroyed. Do we have to condemn them to a life of misery with our rethoric? When I watch the depressing commentary, I'm always looking at it throught the victims' eyes. If I was doing well, I'd be wondering if I should be doing well with everyone assuming I'm a destroyed basketcase.

Media coverage of injury cases and jurors

I love when someone does a study confirming one of my pet theories. My theory: juror skepticism towards plaintiffs is fueled by unwarranted perceptions in the media as to whether jurors are reaching fair verdicts.

The Center for Justice & Democracy has published a study showing that the media distorts the public's perception of how much juries award in personal injury and other civil cases. The study tracked the news over an 80-day period and found that jury verdicts reported on in the media are 192 times higher than the national average of damages awarded. Plaintiffs' verdicts reported by the media in the study had a median jury award was $4.6 million, instead of the real national median jury award of $24,000 awarded to victorious plaintiffs.

The problem is easy to see. The public sees that every celebrity death ends in a wrongful death lawsuit. Every silly celebrity and pseudo-celebrity dispute also ends up as a lawsuit. Look at this crazy battle published on Deadspin today, involving Erin Andrews. You can find one every single day if you look. So, the public weighs the merits of these lawsuits, finding that more often than not they are at best unsustainable and, at worst, ridiculous. The take home message? These suits are indicative of all lawsuits.

These same people then read, almost daily, media reports of some $25 million verdict here and some $50 million verdict there. These stories might mention in the last paragraph that there is a cap on noneconomic damages that cuts 90% of the award, or that the defendant did not even have a lawyer and their is no expectation the victim will every see a dime of the verdict. Putting these things together, should we really be surprised that jurors come in with the rebuttable presumption that our clients are just looking for money and not justice?

Continue reading "The Media and Personal Injury Verdicts" »

• Medical malpractice caps do not lower healthcare costs. No kidding? (Sarcasm.)
• How responsible should a property owner be for wild animals on the land?
• Will we start seeing more bedbug-based lawsuits in Baltimore? The problem is, of course, taking a case to a jury with experts and getting a $40,000 verdict is probably not getting enough juice for the squeeze for the plaintiffs' lawyers or the clients.
• Toys 'R Us has been slapped with a $20 million jury verdict in a case involving a woman killed when an inflatable pool slide partially collapsed. It's a pretty horrific story.
• The details just piled up to make this New Jersey auto accident case end in a pretty big verdict, $3 million: the victim was killed. By an off-duty state trooper. Whose blood-alcohol level was twice the legal limit. And who has already pleased guilty to drunken driving and vehicular homicide.
• Aggrieved because the movie you paid good, hard-earned money for was nothing like you thought it would be? Crazy, right? These lawsuits make the whole judical system seem broken. It's not. But these are the snapshots some people are getting.

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" »

• Cantaloupes are being recalled like crazy. Who would have thought?
• Scott Distasio talks about oversight of Florida nursing homes.
• These folks really want to reduce truck accidents. Or this is a shameless PR stunt. Either way, it is all good.
• List of things I should know but didn't know: Pennsylvania lawyers can't ask the jury for a specific amount of damages. Who knew? (Max Kennerly)
• The CDC says sports-related ER visits for children for brain injuries are way up. I think we are just becoming more aware.
• More on cross-examination of the usual IME suspects.
• More dram shop commentary after an awful case in Georgia.
• The Pop Tort has a reality check on medical malpractice claims and liability insurance rates.
• Remember when Crowell & Moring implied that Appalachia was rife with inbreeding? A law professor has filed an ethics complaint against the firm for writing that consanguinity, not the effects of mountaintop mining, could be causing birth defects in the region.
• Check out TortsProf's list of the top ten recent tort/product liability law review articles.

Does Maryland Need a Dram Shop Law?

(Note: In a crazy coincidence, I wrote this blog post just moments before the Maryland Court of Special Appeals decided Troxel v. Iguana Cantina, a dram shop/premises liability case which reverses a Baltimore County trial court's finding of summary judgment for the defendants essentially because Maryland has no dram shop law. The Court of Special appeals reversed, calling the case a premises liability case. The court lays out the the sometimes hazy line between premises liability and a dram shop claim. At least this is what I think the opinion does I just glanced at the case, amazed by the coincidence. But, boy, this case looks teed up for the Maryland Court of Appeals to impose dram shop liability if that is where the court wants to go.)

The aptly named "Club Blaze", a Georgia strip club, was hit with a $1.75 million verdict in a wrongful death car accident case in Georgia.

These facts read like a preposterous hypothetical concocted by someone intent to prove that every state needs a dram shop law. A man went to a strip bar and managed to drink himself to a .398. Five times the legal limit in Georgia (and Maryland). I bet I have ever been half that drunk in my entire life. I also bet you he had a tab for one at the strip club, making it painfully obvious how he was getting home. So he left the strip club and did what is exactly par for the course when your BAC is .398: he killed himself and two young women, one of which left behind two small kids.

“Fatima did not die in vain. This case will bring awareness about the long-term effects of a drunk driving. This has devastated our family,” Bird's mother, Lisa Mitchell, said in the news release. “Fatima was my daughter and my friend. We honor her by using this award to send her children to college so they can become the best that they can be.”

I'm impressed this woman's mother is able to take such a high road. I would like to think that I could take this approach if it happened to me. I really do. But I think I would just be sad, angry and bitter every single day until I died.

This lawsuit fails on its face in Maryland. We don't have dram shop laws. So you can serve someone alcohol to the point where he is five times over the legal limit creating a time bomb that not only may go off but is actually likely to go off, and there is no claim. That woman's kids - a four and five year-old - would have to fend for themselves for their college tuition if this tragedy had happened in Maryland.

Continue reading "Wrongful Death Verdict: Justice You Would Not Get in Maryland" »

Baltimore City's Lawyer Under Siege: Fairly?

• The Baltimore Sun yesterday did an article pretty much ripping apart the Housing Authority of Baltimore and one of its outside lawyers in Towson. Baltimore City's legal department looks inept and their defense lawyers appear corrupt. This is pretty much a win-win for everyone. But while this is certainly a good piece of investigative journalism (that we rarely see from the Baltimore Sun since its de facto death, announced during Season 4 of "The Wire"), the article creates a tangled web of corruption and incompetency when it really has only one juicy nugget. Clearly, Baltimore City's primary outside lead paint defense lawyer did something colossally stupid: he got hit with sanctions - a fine - by the court that was intended for him personally that he passed along to the City. Inexcusable. But the accused lawyer claims that he is the one who caught the mistake and amended the bill. If true, that would take a lot of sting out of the story. This claim - that the lawyer caught the mistake before anyone else - is never properly aired in the story; the reporter just cites the denial in the "I don't believe it but here is what they claim" kinda way without refuting the story. Then the story lobs more facts without context to make this lawyer and his law firm look awful: he charged 15 cents for photocopies (we don't charge our clients for this but it is a standard practice), he is billing $165 per hour for travel time (a low hourly rate and billing for travel is standard practice for defense lawyers), and the lawyers billed for showing up for a City Council hearing (they apparently actively participated). None of these things raise eyebrows in context. What bugs me most about the article is the notion that Baltimore City would be better served hiring in-house lawyers to defend lead paint cases. Certainly some types of claims - insurance companies successfully rely on in-house lawyers in most car accident cases - are well suited for the in-house model. Maybe Baltimore City's lead paint defense falls into this category, too. This is a complicated economic question. But this article provides no evidence to support this contention other than the mere fact that these lawyers are billing a rather low rate of $165 an hour. This is no evidence at all.
• A California couple is suing a county sheriff's office for $10 million, alleging that the sheriff advised them to check on a neighbor who made a 911 call. When the couple arrived at the scene of what turned out to be a double homicide, they were both stabbed.
• Chicago has banned the sale of crib bumper pads, which can cause suffocation.
• That student strip search case that went to the Supreme Court settled for $250,000.
• Kennerly writes about the Annie Le estate's wrongful death lawsuit against Yale University, which alleges that a climate of sexual harassment contributed to the graduate student's murder by a lab tech. The suit also alleges the university was negligent in hiring the tech, Raymond Clark III.
• I've seen clients injured by all manner of people, vehicles, and animals--but I've never filed suit for a client injured by an airborne turtle.
• A teenager in Massachusetts is threatening to sue over his teacher's Halloween prank last year, which involved walking into the classroom wearing a mask and holding what looked to be a chainsaw. The student says he was so scared that he ran, fell, and hurt his knee badly.
• Hypertechnicalities get in the way of efforts to try to limit the number of truck accident deaths in this country.

If you have the time, here are a few opinions of interest from the past few weeks for personal injury attorneys. If you don't have the time, I have tried to provide a quick summary of the relevant facts and law.

• Rosenfeld v. Oceania Cruises: This is the classic slip and fall case that, honestly, my firm never would have taken. Plaintiff slipped and fell on a wet ceramic surface while walking to the bathroom at the dinner buffet on an Oceania Cruises cruise ship. Worse still, the Plaintiff did not really remember at deposition what type of floor she was on when she fell. Plaintiff brought in an expert from Austria (seriously, Austria) who testified that the tile Plaintiff's lawyers claimed she slipped on had an inadequately low coefficient of friction. Really, just the worst imaginable case. Still, the 11th Circuit overturned the district court and found that this expert's opinion should survive a Daubert challenge. So this case goes to the jury in spite of its Swiss cheese holes.
• Fritch v. University of Toledo College of Medicine: This is a brachial plexus medical malpractice case. Plaintiff's expert testified that there were four possibilities as to what happened: (1) there was some traction on the nerves during surgery; (2) there was bleeding that no one saw (or couldn't see) and
  they pulled traction on the nerve; (3) they stretched the nerve by stretching the arm; and/or (4) a scalene block injection caused the brachial plexus. Plaintiff's doctor held up on direct examination, testifying that it was more likely than not that the injuries occurred because the surgeon negligently stretched the nerve in surgery from moving the arm or retracting on the retractor. The doctor's experts testified as to the other possibilities of the harm that were possible but did not say that any of those likely were the cause. Plaintiff appealed to the Ohio Supreme Court, arguing that the doctor's experts should not be able to testify about possible causes, only those that are more probable than not. The court rejected this claim. A Maryland appellate court would as well because there is no requirement that defendant's expert witness is required to state an alternative possible cause in terms of probability). Plaintiff also made a res ipsa claim which failed (although there are viable res ipsa malpractice claims in Maryland in very limited circumstances.)

Continue reading "Recent Personal Injury Opinions" »

• Do not let this happen to your client. Even better, try to spot these clients before you put the case into suit. In the four paragraph of this post, I write about how I thought this was about to happen to me in a mediation and it ended up just underscoring how honest my client was.
• A woman mauled by a dog has sued a 911 dispatcher and the town that employed him, alleging that the dispatcher canceled her ambulance when he realized it was his own dog that had attacked her.
• New York City has been smacked down for failure of discovery in injury suits it is defending.
• Kennerly senses trouble for the NFL players' brain damage suit.
• Consumers are suing Skechers for injuries allegedly sustained while wearing Shape-up sneakers--you know, the shoes that promise to tone your legs. HT: Overlawyered.
• A Virginia judge has almost halved the verdict handed to a man whose wife was killed by a concrete truck, calling the amount "grossly disproportionate." Side note: both the client and the lawyer will be sanctioned for withholding evidence--the information on the client's Facebook account.