Maryland Injury Lawyer Blog

In the final debate, Senator Barack Obama was asked to name a situation where he stood up to leaders of his own party. The answer Senator Obama most forcefully pointed to was his vote in 2005 for the Class Action Fairness Act (CAFA) which he described as standing up to trial lawyers. The CAFA essentially shut down state courts as a venue to hear many class action lawsuits, which has had a great deal of impact on some types of class actions.

Senator Obama is correct that this was the path less traveled by other progressive candidates. Hillary Clinton and Joe Biden both voted against the Class Action Fairness Act as did other notable Democrats such as Dick Durbin, Ted Kennedy, Pat Leahy, Barbara Boxer, and Maryland’s Attorney General at the time, Joe Curran.

Does this mean Senator Obama is in favor of tort reform? I really do not think so. He has consistently been against any kind of tort reform for medical malpractice damage caps in the Illinois legislature and in the U.S. Senate.

Moreover, it is an open question as to whether the CAFA is a bad law for lawyers who did not drink the “anything that limits plaintiffs’ rights in any way is a bad thing” Kool-Aid. Lawyers typically take a knee jerk reaction by opposing any changes in the system. (I'm probably guilty of this.) But I know that I take exception to some of these consumer lawsuits where the lawyers make a fortune and the plaintiffs only receive a free oil change and 10% off their next purchase of the Defendant’s product. While I appreciate the important deterrence effect that trial lawyers can have on bad corporate conduct, I think there is a problem when the actual victims do not get any meaningful compensation. I’m not proposing a better solution; I just have some concerns about those types of cases which I think are the kind most impacted by the CAFA.

I also disagree with the notion many have offered against the CAFA that state judges, as opposed to federal judges, are better equipped to handle consumer protection laws because they sometimes involve state, rather than federal law. First, I don’t think that there are enough consumer law cases such that state court judges would be extremely familiar with them. Moreover, I’ve spent enough time in front of federal court judges to be pretty confident that these are largely extremely smart people who can figure these kinds of things out.

Ironically, Republicans, the party of states’ rights, voted for the bill en mass. I think there are about 11 people in the country who really care less about the balance between the states and the federal government. It is a hard thing to get passionate about in 2008. A person who sings the States’ rights mantra (or federalism for that matter) quickly abandons the song when it conflicts with an issue that really matters to them.

Going back to the topic at hand, I do not blame him for taking a shot at trial lawyers: we are easy targets and most trial lawyers are going to vote for Senator Obama anyway on a host of other issues that have nothing to do with tort reform. But I think Senator Obama is going to help decrease the number of medical malpractice lawsuits the way it should be done: by fighting for changes that will decrease the number of people who are seriously injured or die each year as a result of medical malpractice - almost 100,000 malpractice related deaths a year in the country, according to the government. I also think Senator Obama will support legislation that will overturn the dreadful decision the Supreme Court made in Medtronic v. Riegel and the dreadful decision they may well make in Wyeth v. Levine.

• Clinton and Obama on Tort Reform
• Malpractice Tort Reform

The Los Angeles Times reports that dog and cat food companies will pay $32 million to settle lawsuits filed by pet owners whose dogs and cats died last year after eating contaminated pet food.

You would be hard pressed to find someone who loves animals more than I do. Very hard pressed. My views on this stuff are outside of mainstream opinions on the subject. So I am thrilled these pet food companies are being held accountable. Still, does anyone other than me think that the only winners in this lawsuit are the plaintiffs' lawyers who filed these lawsuits and the defense lawyers who billed the file?

I do not necessarily think anything is wrong with this. I'm just like a poet pointing this out, using a blog instead of iambic pentameter. (No? Not even close. Okay.)

Judge Edward A. DeWaters Jr. died on Saturday of pancreatic cancer yesterday. Judge DeWaters was appointed in 1972 and retired in 2001. Judge DeWaters was at one time the chief judge for both Baltimore County and Harford County.

I never had a case before Judge DeWaters. My Dad, who grew up in Bel Air near Judge DeWaters, attended a high school reunion on Saturday in Bel Air where the dominant topic was obviously Judge DeWaters' death. He appears to have been well liked respected not only during his 29 years as a judge but throughout his entire life. My Dad, who was one year older than Judge DeWaters, commented that of anyone he knew growing up, Judge DeWaters was the person he would have be the least surprised to become a judge.

A Mass of Christian burial will be offered at 10 a.m. Thursday at St. Stephen Roman Catholic Church, 8030 Bradshaw Road, where he was a member.

These are some personal injury related links from around the country this week:

The Burlington Times News has an article about North Carolina’s decision to require North Carolina doctors to report all medical malpractice payments greater than $25,000.00. These results will be released to the public. The article notes that only 4% of the doctors in North Carolina in the last seven years have made malpractice payments.

Legal Newsline.com has an article on how medical malpractice damage caps in Texas have decreased malpractice premiums. As I have written before, in spite of what a lot of medical malpractice lawyers have argued, this cause-and-effect relationship is textbook economics. I think it is also true that the quality of patient care in Texas is falling dramatically because there are no repercussions when a doctor seriously harms a patient.

The Baltimore Injury Lawyer Blog has a post on John Bratt’s recent auto accident trial in Montgomery County.

Pharalot reports that the FDA will now be compile quarterly a list of drugs that have been identified as having potential safety concerns. Can anyone argue this is a bad idea?

The new Maryland Accident Lawyer Blog has a post on the Maryland Court of Special Appeals’ recent ruling in a wrongful death car accident case that took the lives of a man and his three children.

The Illinois Trial Practice Weblog has a post about the top 10 rules of evidence every lawyer must know. (Top 10 lists are irresistible.) The same blog also has a good post on videotaping your opponent’s deposition.

Does Sarah Palin support the idea of jury nullification?

The Baltimore Sun reports that the FDA may not be properly screening drugs for the potentiality of the medications inducing suicide. Plaintiffs’ product liability lawyers who have been looking at these issues for the last 20 years are Captain Renault-like stunned to learn that the FDA (and the drug companies) has not properly focused on the risk of drugs – particularly antidepressants – and suicidal thoughts and ideations.

Finally, the Torts Prof Blog continues to put together a comprehensive list of personal injury links from around the country.

The Baltimore Sun reports that car insurance companies in Maryland are resisting the Maryland Automobile Insurance Fund's (MAIF’s) car insurance rate-lowering proposal because MAIF’s plan to lower rates puts the private sector at risk. After a hearing in Baltimore, Maryland Insurance Commissioner Ralph S. Tyler delayed ruling on some insurance companies’ objections to MAIF lowering their rates.

Let me get this straight. Car insurance companies cannot compete with a non-subsidized state run agency. Was Marx on to something? No, we all saw the Beijing Olympics; capitalism seems to be working just fine.

Is this really where we are? Private car insurance companies need protection from competition by MAIF? I’m not sure what the private insurance companies’ arguments are on this issue. The only argument offered by the Baltimore Sun was provided by Hal S. Katz, president of Baltimore-based Interstate Auto Insurance (IAICO). Also specializing in writing Maryland car insurance polices for drivers that have a history of trouble, IAICO complained that MAIF does not enforce its requirement that it provide car insurance only to drivers who have been rejected by two private companies.

My response to IAICO is, so what? Why can’t IAICO compete with MAIF on a level playing field without having to run to Ralph Tyler to complain that MAIF’s prices are too low? The average MAIF policy now costs $2,400. It is not like they are giving car insurance away. Either IAICO is not running their business very well, or - and this is the more likely explanation - it does not want any competition to interfere with its gouging of Maryland drivers with shady driving records or credit scores, often the people that most need the lower rates that come with competition.

Also, if MAIF has a $170 million surplus, as the Baltimore Sun reports, would it be a bad idea for MAIF to stop writing 99% of its policies at 20/40/15? If MAIF is a quasi state owned company (MAIF is not even an insurance company as defined by Maryland law), couldn’t it be in the best interest of MAIF policy holders and Maryland accident victims for MAIF to raise its policy limits to 30/60/15, at least protect its policyholders from district court (non jury trials) where the jurisdictional maximum is now $30,000?

While I’m spending MAIF’s $170 million surplus, here’s a quick plug for the enemy - the accident lawyers MAIF hires to defend its car accident cases. One of the big problems we have with MAIF, as John Bratt points out in the Baltimore Injury Lawyer Blog, is that they offer their small insurance policies too late in many cases to protect their insureds under Maryland's pay-to-play statute. Maybe if these lawyers – many of whom are fine personal injury lawyers – were paid a little more, they might have the time to figure out from the beginning whether it is an excess case where the policy should be tendered. It couldn't hurt. Even more importantly, MAIF could spend the resources to figure out which auto and truck accident cases are policy cases from the beginning. This is an investment that would actually save MAIF a ton in lawyers’ fees.

The Baltimore Sun reports today that a federal jury California awarded Mattel a $100 million verdict in their copyright infringement lawsuit against Bratz-maker MGA Entertainment Inc.over the rights to the popular Bratz doll franchise.

"Mattel has pursued this case first and foremost as a matter of principle," Mattel CEO Robert A. Eckert said in a statement.

Really? Yet they asked for jury for punitive damages and $1.8 million dollars. I find it amazing how these companies decry punitive damages and “shoot for the moon” plaintiffs’ lawyers until they got their shot on the left side of the v.

By the way, as a shareholder of Mattel, I don’t want them pursuing copyright claims out of principle. We are not talking about human rights here, we are talking about rights to a bunch of dolls. Just try to honestly and ethically maximize profits for me, okay? (All right, I’m not really a shareholder of Mattel. But you get the point.)

The Wall Street Journal published an article today on law schools gaming the system to improve their U.S. News and World Report rankings. It focuses in part on the rise of the University of Baltimore School of Law, which has risen dramatically in many ways under new dean Phillip Closius, including the U.S. News and World Report rankings.

I think everyone has been "gaming the system" to some degree except for the University of Baltimore Law School and a few other schools. Now, UB is playing along just like everyone else. As Dean Closius points out, some of the things that the U.S. News and World Report seeks - like tracking employment better after graduation - help the students and alumni.

The University of Baltimore Law School has been spinning its wheels for years watching other law schools pass it on the food chain. Now Dean Closius steps in and not only talks about change, but is actually making quality changes people can see. (Boy, I hope to be thinking the same thing about President Obama in a few years.) He is intent on seeing the University of Baltimore become a real power, not just in Baltimore, but regionally and nationally. The more amazing thing is that people associated with the law school now believe things are possible that they would not have imagined even three years ago.

The Wall Street Journal interviewed me for this story. I had originally thought the angle of the story was going to be the rise of the University of Baltimore Law School. Obviously, that would have been the perfect spin for the school. But in spite of the angle of the article - gaming the rankings - I think the article came out well for the University of Baltimore.

Walter Olsen at Overlawyered comments on the selection of Delaware senator Joseph Biden's by Senator Obama as the Democratic vice-presidential nominee and his support of injury victims in tort reform and other matters. (Here and here.) Olsen calls injury victims "trial lawyers" which underscores how conservatives have done a much better job at framing political issues on their terms. No one wants to support trial lawyers. Injured victims engender a great deal more sympathy. I've been reading George Lakoff's great book on this concept, which he calls framing. The book offers political tactical ideas that are also useful to trial lawyers on both sides of the v.

With Democrats likely to make gains in the House and Senate, I have not given much thought to the candidates thoughts on tort reform and related issues because I do not think anything meaningful is going to happen with tort reform on a national level. Besides, I vote as a citizen, not as a trial lawyer. If Obama and McCain both took the other's view on tort reform, I'd still vote for Obama.

Actually, there is one big issue on the radar screen right now in this election from a trial lawyers' standpoint. (Can you tell I'm thinking as I'm writing? It is a Saturday.) I expect Congress to pass a bill overturning the FDA preemption win for drug companies in Riegel v. Medtronics.

I think a President Obama would sign such a bill; I'm not sure about a President McCain. I'm pretty sure McCain is not a big supporter of the proposed bill. The question is would be whether he would spend the political capital to veto it.

Last week, I wrote about a new opinion from the Missouri Supreme Court that found that a driver could recover emotional damages in a lawsuit against the parent of a child that was killed in a truck accident. Today, I found Taylor v. Mucci, a Connecticut Supreme Court issued on Tuesday that reaches a different conclusion in a slightly different context that involves the interpretation of "bodily injury" in an insurance policy.

On Christmas Eve in 2004, the Plaintiff's minor son, Andrew, was struck by car driven by the Defendant. Andrew’s case settled but Plaintiff maintained a claim for negligence for emotional stress she suffered having witnessed the accident.

At the time of the accident, the Defendant had a 100/300 insurance policy with Metropolitan Property and Casualty Insurance. The trial judge ruled in favor of the defendant, finding that the insurance policy did not cover claims for bystander emotional distress.

The Connecticut Supreme Court agreed that the plaintiff's allegation of bystander emotional distress resulting from witnessing his son’s injuries does no constitute bodily injury as that term is defined in the Metropolitan insurance policy. The court also found that Andrew’s mother could not recover under the insurance policy language because the payment of the $100,000 per person limit to Andrew also exhausted her claim.

I was a little confused because the Court begin the opinion stating it was affirming the trial court's entry of summary judgment in favor of the driver defendant but it then concluded solely in terms of whether the insurance company is applicable. I am not sure why in this case on necessarily relates to the other but I think it might have involved some sort of stipulation that that the insurance company would pay for policy limits if the Connecticut High Court found that there was coverage.

Accordingly, if my understanding is correct, I am concerned that the court is saying that claims for emotional distress are compensable but the insurance policies language that defines "bodily injury" does not provide coverage. This will leave negligent defendants exposed to a liability for claims that are clearly foreseeable from car and truck accidents. States interfere with policy language in insurance contracts as a matter of course. Why make a distinction? This is something I would expect the Connecticut Trial Lawyers Association to be working on in Connecticut's next legislative session.

Taking off my personal injury lawyer and a hat for just one second, I am a little bit uncomfortable with emotional distress claims in all but the most serious of claims. I believe that there should be a cause of action for emotional distress claims. But if I were sitting on a jury, I would not award significant damages in anything other than most extreme cases. This Connecticut case does not flush out the basis for the mother's emotional distress claim.

You can read the full opinion here.

The California 2nd Court of Appeals issued an interesting opinion addressing the question of just how much of a plaintiff’s personal life is fair game on cross-examination in Winfred D. v. Michelin North America.

(Random comment: Can we all use first names in cases where there are the remotest of privacy issues in question like this court does? If you are killed and your family brings a wrongful death claim or even if you are a doctor accused of medical malpractice, should someone’s Google legacy really be their name in a legal case that might include personal details? Who opposes this?)

Plaintiff in this case suffered a catastrophic brain injury when his tire split while driving a cargo van. Plaintiff’s treating doctors testified that the accident left the Plaintiff, a college graduate, with the functional skills of a 4th grader. One of his doctor’s testified that Plaintiff was “incompetent” to give testimony in that “his memory is flawed,” and he says things that he believes to be true which may not be because of his brain injury.

At the trial of this case in Los Angeles County, the trial judge allowed the Michelin’s lawyer to introduce evidence that while plaintiff was married to his first wife he married another woman without telling her he had not divorced his first wife. Then, he eventually divorced his second wife; and he thereafter had an affair with a third woman, having two children with her. The trial court ruled that this conduct was relevant to plaintiff’s credibility and the cause of the accident.

The jury returned a verdict in favor of Defendant Michelin, voting 9-3 on the breach of warranty claim. On appeal, Plaintiff’s product liability lawyers argued that the evidence admitted regarding Plaintiff’s private life should have been excluded.

The California appeals court said that Plaintiff’s lawyers’ opening statement comment that Plaintiff was “living the American dream” did not open the door, as the trial court suggested, to the fact that he was unethical in his personal or private affairs. The court concluded that because Michelin’s lawyers painted Plaintiff as a “liar, cheater, womanizer, and a man of low morals” based almost exclusively on inadmissible evidence, a new trial was warranted.

Trial courts have a lot of discretion to determine what is relevant but I think pretty clearly that the nuances of his personal relationships – however disturbing – are not fair game. I understand why and agree that the trial court should have a lot of discretion in determining what is relevant because relevancy is so fact specific. The clear downside to the frustration of lawyers is different judge’s have different rulings. I tried a case recently where the judge accused me of seeking to “try the case in a vacuum.” The problem is that one reasonable judge’s “vacuum” is another reasonable judge’s “let’s just stick to relevant facts.”

Click here for the full opinion.

The Missouri Supreme Court found last week that a truck driver who was in a truck accident with another driver can sue for the emotional damages he suffered when he saw the dead victim in the other car. I'm not sure the decision is legally wrong. But it would not fly in the court of Moral Justice court.

The Plaintiff is seeking $1,623.57 in medical bills, and past and future lost wages in excess of $45,000. This is a bogus claim alert right there. You shouldn't lose $45,000 in wages and have such small medical bills in 99.999% of the cases. But here is what is worse: the defendant lost his two year-old daughter due to his own negligence which has to be the most awful feeling in the world. His emotional distress from the truck accident - albeit his fault - is through the roof. Now this truck driver brings a lawsuit. There are some things that we can do in this life that we just should not do.

Oh, wait. It gets worse. In the lawsuit, the Defendant sought and received the following admissions:

(a) The "worst image" for plaintiff was the "the 'baby' lying in the mangled car";

(b) Plaintiff experienced "a great deal of grief for the child who died";

(c) Plaintiff experienced the "paradox of knowing he had no responsibility in her death and wanting her to forgive him at the same time"; and

(d) Plaintiff "visualize[d] the little girl being in heaven" and "said she's the lucky one."

The last one in particular - even if theologically correct - marks the Plaintiff as deranged and I'm surprised the majority let that go without even a comment. The truck driver is telling the father that his loss is worse than his daughter's. The crazy paradox is that anyone so grief stricken over the death of another would be willing to subject the father who caused the death of his own two year old child more grief.

If you hate plaintiffs and personal injury lawyers, I have certainly given you some fodder today. I think you are wrong; I would love to convert you. But it won't happen today.

New Maryland judges were announced today:

District Court of Anne Arundel County: Henry Richard Duden, Eileen Anne Reilly, Shaem Charles Patrice Spencer

Circuit Court Prince George's County: Judge Leo Edward Green Jr.

District Court Prince George's County: George Richard Collins, Tiffany Hanna Anderson, Lawrence Vincent Hill Jr

District Court Calvert County: Edward Gregory Wells

3rd Circuit Court of Speical Appeals: Kathryn Grill Graeff

Court of Special Appeals (At Large): Judge Albert Joseph Matricciani Jr.

Circuit Court Baltimore City: Marcus Z. Shar

District Court for Cecil County: Bonnie Gullatt Schneider

Finally, as predicted here (sort of), Maryland Court of Special Appeals Court Judge Mary Ellen Barbera was elevated to the Maryland Court of Appeals.

Although our lawyers cover personal injury and medical malpractice cases throughout Maryland, I have to admit we have not handled many Garrett County personal injury cases. Garrett County is the westernmost county in Maryland, and I think the many malpractice and accident victims in Garrett County unfortunately turn to Pittsburgh lawyers in serious injury and malpractice cases.

Apparently, for District Court claims in Garrett County, to not have many Garrett County claims is a good thing because the Oakland court is without a judge, according to a Maryland Daily Record article today.

Over fourteen months have passed since the tragic death of Garrett County’s District Court Judge Ralph M. Burnett from colon cancer complications. Judge Burnett, who apparently was a tireless advocate in the fight against prostate cancer for over 10 years, was Garrett County’s only district court judge. Today his seat remains unfilled. Apparently, the nominating commission for Allegany and Garrett counties recommended two of the four candidates that applied.

The nominating commission forwarded the names of Raymond G. Strubin, a Garrett County public defender and, and Daryl T. Walters, a Garrett County Master, to Governor O’Malley. But the Governor requested three names and asked for the reconsideration of Stephan M. Moylan (who I believe is also a public defender in Garrett County) and Lisa Thayer Welch, who is a State’s Attorney in Garrett County. The commission bitterly did just that, but still refused to recommend Ms. Welch or Mr. Moylan.

Interestingly, according to the Cumberland Times-News in April, a petition gained 747 signatures requesting Governor O’Malley investigate the “official conduct of the State’s Attorney for Garrett County, Maryland, Lisa Thayer Welch, and the Sheriff of Garrett County, Maryland, Gary Berkebile” in regard to their handling of a shooting involving Sheriff’s Berkebile’s brother-in-law.

I get the impression that the Sheriff Berkebile was more the target of outrage because of the way the investigation was handled when his brother-in-law shot a friend at the friend’s house while drinking at 2:00 a.m. in the morning.

Apparently, the victim was discussing with his ex-girlfriend getting back together. But the ex-girlfriend was the shooter’s current girlfriend while all three were in the shooter’s house. Talk about a recipe for disaster. Then, throw in a little – probably a lot – of alcohol. Shockingly, an argument ensued and during the argument, the victim grabbed a knife from the shooter’s kitchen, and cut the shooter’s thumb. (I’m not sure why the victim was so mad.) In what could not be described as a proportionate response, the shooter went into his bedroom and retrieved a gun. After a brief exchange of words, the shooter shot the victim three times. (The take home message particularly for those of you under 30 out there: nothing good happens at 1:00 a.m. No by 1:00 a.m., if you have not accomplished what you are trying to accomplish, it is time to call it quits. Nothing. Ever. Trust me. Now back to our story....)

The brother-in-law claimed self-defense, the investigation moved slowly and evidence was missed, according to the story in the Cumberland Times-News (think O.J. to the 3rd power). But the attack on Ms. Welch was that she waited 10 months to file charges and then agreed to an “imperfect self defense” plea just last week that has a maximum sentence of only 10 years, in spite of the fact that an eye witness clearly rebuts any notion that the shooting was in self-defense.

The whole point is that Ms. Welch obviously has made – rightly or wrongly – a few enemies along the way. (I kept babbling on the story because they story is interesting, as is the underlying politics.)

Meanwhile, the Daily Record reports that Garrett County Circuit Court Judge James L. Sherbin along with Allegany County’s two District Court judges, Judge Edward A. Malloy, Jr. and Judge H. Jack Price, have been coming in from Cumberland to help with the workload created by the vacancy. But you have to think these guys are getting tired!

While I was on vacation, I promised more commentary on Matsuyama v. Birnbaum, a landmark medical malpractice opinion on loss of chance from the Massachusetts Supreme Judicial Court.

In Matsuyama, the 42 year-old Plaintiff’s decedent, Mr. Matsuyama, saw the Defendant doctor, a board-certified internist and the Plaintiff’s primary care doctor, for a physical in July, 1995. Mr. Matsuyama's medical records from that visit indicated disclosure of complaints of gastric distress for the last seven years and that Mr. Matsuyama's prior doctor had noted that he might need additional tests to evaluate his symptoms.

The Defendant doctor testified that Mr. Matsuyama complained of "heartburn and difficulty breathing associated with eating and lifting." The Defendant also knows Mr. Matsuyama was a smoker at high risk for developing gastric cancer. Without further testing, the doctor diagnosed Mr. Matsuyama with gastrointestinal reflux disease.

Plaintiff’s expert testified that at this point the doctor committed medical malpractice by failing to order the appropriate tests, and, over a year later with the same symptoms and facts available to him, he continued his diagnosis in spite of complaints that Mr. Matsuyama’s heartburn was worse and that he had gastric pain after eating. A year later, Mr. Matsuyama again visited his doctor and asked about moles that been developing. The doctor diagnosed “benign seborrhea keratosis."

I’m getting deeper into the medical facts here than I would like, but you get the point. Mr. Matsuyama went back to the doctor with more symptoms consistent with gastric cancer and his doctor continued to fail to test more thoroughly for cancer. But in May, 1999, when his symptoms went through the roof, the doctor ordered a gastrointestinal series and an abdominal ultrasound, which quickly revealed a two-centimeter mass in Matsuyama's stomach. He died in October, 2000, leaving behind a wife and child.

After a six-day trial in Norfolk County Superior Court, the jury found the doctor negligent and found that the doctor’s medical malpractice was a "substantial contributing factor" to Mr. Matsuyama's death and awarded Matsuyama's estate $160,000 for pain and suffering caused by the negligence. Then, in response to a special jury question, the jury awarded damages for “loss of chance.” They calculated the damages to be $875,000 as "full" wrongful death damages and found that Matsuyama was suffering from stage-2 adenocarcinoma at the time of doctor's initial negligence and had a 37.5% chance of survival at that time. The Norfolk jury awarded the plaintiff "final" loss of chance damages of $328,125 ($875,000 multiplied by .375) for a total of $488,125.

Continue reading "Lost of Chance in Medical Malpractice Cases: What Massachusetts Has Done and What Maryland Should Do" »

The Massachusetts Supreme Judicial Court - Massachusetts' highest court - ruled yesterday that medical doctors can be held liable for medical malpractice that reduces a patient's chance of survival, even if the patient's chances of recovery was already less than 50 percent.

Maryland also has a loss of chance case currently pending before the Maryland Court of Appeals although few Maryland medical malpractice lawyers expect Maryland will go as far as Massachusetts has in this case.

I'm on vacation this week but I'll read and report on this important opinion next week.

The Supreme Court of Montana rendered an interesting decision last week on the issue of the claim for emotional injury in Allstate Ins. Co. v. Wagner-Ellsworth.

The case involves a car-pedestrian collision. Two brothers were crossing the street in front of their elementary school and one was seriously injured. Allstate settled this claim for the per-person policy limit of $50,000.

The injured victim’s mother and brother retained a car accident injury lawyer and filed suit claiming emotional and physical injuries, contending that they were “injured” as a result of the brother seeing the accident and the mother by the trauma she suffered arriving on the scene after the accident.

In response to the lawsuit, the negligent driver sought both coverage from liability and a lawyer to defend the claim. Allstate filed a declaratory judgment action arguing that it was not required to provide a lawyer for its insured because its coverage did not extend to claims of emotional or psychological injuries and any resulting physical manifestations of those injuries. (You are in good hands with Allstate as long as you pay your premiums and never make a claim.) The trial court granted Allstate’s motion for summary judgment relying on Jacobsen v. Farmers Union Mutual Insurance, a 2004 opinion from the Montana Supreme Court.

The Montana Supreme Court reversed, relying on the following policy language: “Allstate will pay damages which an insured person is legally obligated to pay because of bodily injury sustained by any person ..." The Montana high court noted that the policy did not state that "damages must result from 'bodily injury' sustained by the 'insured.'" In so doing, the Montana Supreme Court specifically overruled the court’s prior holding just four years before in Jacobsen v. Farmers Union Mutual Insurance.

I’m a fan of stare decisis but I’m a bigger fan of the Montana Supreme Court’s unanimous willingness to quickly change what it perceived to be a mistake. I also think they made the right call because the law is well settled that you can recover for physical manifestations of emotional trauma in these types of case. That said, if I were on a jury, would I be skeptical of these kinds of injures? Yes, I would. The Plaintiff’s lawyer, Roland B. Durocher, a personal injury lawyer in Great Falls with Hartelius, Ferguson, Kazda, Baker & Durocher, certainly has an uphill climb in this case. Unless the clients are compelling, I think this case will have little chance of success.

The Maryland Daily Record reports today that The Law Offices of Peter G. Angelos intends to file an appeal in a Baltimore City medical malpractice case in which the Plaintiff’s $10.2 million jury verdict against University of Maryland Medical Center was capped at $632,500.00 because that is the limit on non-economic damages.

The Daily Record reports that the Plaintiff's medical malpractice lawyers intend to argue that: (1) the limitation on damages has not accomplished its purported legislative objective of reducing medical malpractice insurance rates for doctors; (2) the Maryland cap on non-economic damages is pre-empted by the ADA; (3) that it violates equal protection and due process; and (4) that it deprives the jury of the information necessary to make an informed decision.

Not surprisingly, Baltimore City Circuit Judge Carol E. Smith denied Plaintiff’s motion to overturn the cap and reduced the Plaintiff’s verdict to his medical expenses and $620,000.00 in non-economic damages (the malpractice must have occurred between October 2002 and September 2003).

I’ve written here about 10,000 times that I think that caps on damages are unjust. As a Maryland malpractice lawyer, I’m rooting for the Plaintiff to convince the legislature to overturn the cap. I think the result would be justice and a system where we do not discriminate against those that have been the most seriously harmed. That said, if I were on the Maryland Court of Appeals, I would find that the Maryland General Assembly made a law that it had every right to make when it instituted a cap. Because there is no law against dumb laws.

The Maryland Court of Special Appeals ruled yesterday in Peyton-Henderson v. Evans that Baltimore City Circuit Court Judge George L. Russell, III did not err in transferring a lawsuit from Baltimore City to Baltimore County that was filed as a result of the May 2004 shooting at Randallstown High School.

The ruling covers no new ground but (sort of) retired Judge Charles E. Moylan Jr. lays out the history of the Maryland case law on forum non conveniens. The court underscored the more modern Maryland trend to focus on “the interests of justice” as opposed to concentrating on convenience of the witness. With a standard as amorphous as “interests of justice” you can be pretty sure that absent some insane finding, the appeals court is going to defer to the trial judge. This is why I’m surprised this case was appealed in the first place.

Judge Moylan jabbed lightly at personal injury lawyers who forum shop, quoting now Court of Special Appeals Judge Krauser, “while home may be where the heart is, it is not necessarily where the largest recovery lies.” But, in the next breath, Judge Moylan points out that “is beside the point when dealing with the venue statute rather than forum non conveniens” because Plaintiff is well within his or her right to file suit anywhere where venue is proper.

One other thing I got out of the case is something I think I already understood but is worth noting: the denial of a motion to transfer a case would be interlocutory and not immediately appealable but the affirmative order of a transfer is subject to immediate appellate review. I don’t think we have ever appealed a forum non conveniens transfer simply because we never had a case where we thought the transfer was an abuse of discretion. But it is still good to know.

Four passengers have filed a lawsuit in Alabama against Southwest Airlines, alleging breach of contract, negligent and reckless operation of an aircraft, and unjust enrichment. The essence of the complaint is that the company breached its contract with its customers by carrying them on planes that missed safety inspections. This is pretty much the same as bringing a claim against someone because their negligence could have caused a car accident. It is just far beyond silly.

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.

Although I'm hardly an expert on the Maryland legislature, I look at some of the bills that impact Maryland personal injury lawyers and their clients that passed or failed in this legislative session in Annapolis and provide some commentary on them on the Maryland Lawyer Blog today.

My blog post on Thursday left the impression that Allstate had produced all relevant documents that plaintiffs' lawyers have been demanding. Apparently, after reviewing all of the documents, this may not be the case. Click here for the Time-Picaqune (New Orleans) article on what plaintiffs' lawyers say is still missing.

Back in January, I wrote about Allstate’s on going war with the state of Florida (and Missouri) in which it arrogantly racked up more than $4 million in fines for refusing to turn over documents that they had been ordered to produce and which had been requested by the insurance commission in Florida. On Friday, Allstate not only produced 150,000 pages of responsive documents it had protected as proprietary, but it made the documents available on Allstate's website.

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.

Citizens Against Lawsuit Abuse issued a press release today pointing out that, according to a new national study by the Center for Medicine in the Public Interest, many personal injury lawyer websites disguised as health care websites are jeopardizing the public health.

Two entities have been mentioned above. Like our local baseball teams in Baltimore and Washington these days, you can’ t tell the players without a scorecard.

Citizens Against Lawsuit Abuse sound like a bunch of nice, good folks someplace like Iowa who want to fight abuses that concern our tort system. Using the word “citizens” really helps create that effect. In fact, Citizens Against Lawsuit Abuse is a front for corporate America to limit the rights of product liability, accident and medical malpractice victims (probably in that order for this group). I could write a lot about their funding, but I think this will suffice: it is believed that Philip Morris is one of their biggest contributors. I have not looked at their website but I’m going to guess that’s not mentioned anywhere on there.

Center for Medicine in the Public Interest reportedly conducted the “study.” Now if you are not impressed by the title of this group, nothing will impress you. I’m picturing a bunch of selfless doctor sitting around with a lot of medical books and journals trying to figure out how to help people. Yet, when their director appeared on PBS’s NewsHour with Jim Lehrer, he was described – apparently without objection - as a director of “a group that receives funding from the pharmaceutical industry.”

Do we really need a “study” on this topic? I’m not saying these sites are not out there, I just have never seen any. The Internet is not such a behind the scenes world where we need a study to find out what is on it. Simply tell us the websites and what you believe is misleading about them.

One of their findings is that 65% of search results on two FDA-approved prescription drugs - Crestor and Avandia - were on sites containing biased or unverified, negative information. I can’t speak much about Crestor, but, yes, lawyers do have great discussions regarding Avandia on their websites. Most of them discussing the New England Journal of Medicine study on the problems with Avandia, which appears to indicate that Avandia significantly increases the risk of heart attack. I would be curious as to whether the Citizens Against Lawsuit Abuse find information in the New England Journal of Medicine as “unverified negative information.” I think they would find the health risks of tobacco to be “unverified negative information.” This reminds me of the lawyer that objects to evidence as “unduly prejudicial” because the information is really harmful to the lawyer’s client’s case.

Look, make a list of personal injury lawyer websites that are pretending to be health care websites offering medical advice and opinions. Let’s look at those and evaluate whether they are misleading the public by pretending to be health care websites or if they are providing information that is incorrect.

In any event, the Citizens Against Lawsuit Abuse accusing someone pretending to be something they are not is downright Spitzerlike.

According to a recent poll on jury duty, the answer is yes. Fifty-eight percent of those surveyed believe that a jury is fair and impartial all or most all of the time. Even more interestingly, half of those surveyed said they would expect a jury to give a fair verdict as opposed to a judge. Only 23% selected a judge over a jury (27% were unsure). In other words, by a margin of more than 2 to 1, we trust juries more than judges. Only 18% of African-Americans and 19% of Hispanics chose a judge.

Maybe our founding fathers were on to something with this whole “jury of our peers” thing. But I don’t think this is a knock on our judges. Instead, I think people would prefer to be judged by regular everyday people like themselves who are outside of the process.

In light of the recent Medtronic ruling and drug preemption cases pending before the Supreme Court, I would like to add one more question to the survey: Do you think a jury or the FDA is more likely to protect you and your family from a defectively designed pharmaceutical drug or medical device? Someone do this survey and send the results to the Supreme Court.

Thanks to the Florida Jury Selection Blog for the link to the study.

The Maryland Daily Record reports that a Baltimore jury awarded $82,000 to an 8-year-old boy who only briefly exhibited elevated levels of lead in his blood.

In May 2000, the boy’s level was four micrograms of lead per deciliter of blood. In December, his level rose to 29 micrograms. I am a parent of three small children and, as a defense attorney, have defended lead paint cases in Maryland. If my child had a lead level of 29, I would absolutely freak out. In this case, thank God, as quickly as the level rose, it fell. By December 28 the young boy’s level was 19. It fell to 12.6 in February and then down to 8.6 in March.

The Plaintiff’s lead paint lawyer conceded that the boy was doing well. Apparently, he was doing great in school and he tested in the 97th percentile for reading, but there is no question that lead harms children. Should the fact that the child is doing well be a defense? We know lead paint harms children and we know this child, while doing great now, had cognitive delays. Would he be in the 99th percentile but for the lead? So I think the jury’s verdict was probably very reasonable (although you would have to be on the jury to really render an opinion).

The lawyer who defended this lead paint case, John H. Doud, III, a solo practitioner representing the uninsured landlord in the case, made what I think was an awful comment after the verdict. Mr. Doud said the verdict sends the wrong message to landlords. He said the message is that "when your first tenant sues you, I would get into another business.”

This is not the take-home message from this case. There is not strict liability in lead paint cases. This little boy could only recover if his lawyer proved that the landlord had actual or constructive knowledge of the problem and did nothing to solve it. In other words, the landlord has to know that his property could cause brain damage to children and still not bother to fix the problem. This burden in lead paint cases is more stringent than general negligence claims. So, that is not the lesson to landlords about lead paint that should come from this case. Instead, the lesson is if you are going to be cavalier about exposing children to lead paint that is known to cause brain injury, you do so at your own peril. The landlord should pay the verdict and thank his lucky stars that Maryland makes obtaining punitive damages so unreasonably difficult.

The case of Titan v. Advance was decided yesterday by the Maryland Court of Special Appeals. Titan is a case where the Plaintiff alleged negligent repair of a roof that led to the clogging of a roof drain, which then resulted in the flooding of the Plaintiff’s premises on Eastern Avenue in Baltimore, Maryland, at Crown Industrial Park. After a three day trial, the jury found in favor of the Defendants.

As you might have expected, the amount of rain after the job was completed was relevant. Defendants introduced, over objection, a certified copy of the U.S. Department of Commerce’s weather reports from Baltimore-Washington Airport, which reported rain patterns at the airport between the day roofing work was done and the date of the flooding off the roof. Plaintiff objected that the weather at Baltimore Washington Airport on that day was not relevant because it was 10 miles from the site.

The Maryland Court of Special Appeals, in an opinion by Judge Arrie W. Davis, found that the documents were relevant because the parties disputed the amount of rainfall. The court further found that in spite of the length of the documents, the jury could reasonably interpret the recorded rainfall amounts and no expert opinion was needed to explain the documents. As to the 10 miles between Baltimore Washington Airport and the site of the property, the court concluded this went to the weight of the evidence as opposed to admissibility.

Interestingly, the Plaintiff filed a claim with its own insurance company, Hartford, who paid some, but not all, of Plaintiff’s damages claim. Specifically, it did not pay all of Plaintiff’s business interruption loss. Plaintiff originally sued Hartford who prevailed on the always raised, but rarely used, affirmative defense of accord and satisfaction. As a part of the settlement in which Hartford paid a nominal amount, Hartford released its subrogation claim in this case.

In another issue of interest to personal injury lawyers, the question of when the existence of insurance can be introduced was also at issue. In most accident and medical malpractice cases where the client is being sued individually, plaintiffs want to get into evidence that the defendant has insurance to cover the claim. In Maryland, under Maryland Rule 5-411, generally evidence of liability insurance is not admissible. In this case, Plaintiff was cross-examined about its dealings with Hartford. Apparently, one of the Plaintiff’s agents made assertions to Hartford inconsistent both with Plaintiff’s contentions at trial and statements the agent was now making. The court found that the plain language of Maryland Rule 411 makes clear that evidence of insurance is admissible when offered for another legitimate purpose.

Certainly, the trial court did not commit reversal error in admitting this evidence. Usually the court will make every effort to shield the insurance issue from the jury by encouraging a stipulation that the statements were made, but still not disclose to the jury that they were made to an insurance company. In this case, given the context of the quoted testimony, it would have been very difficult to mask from the jury that there was underlying property insurance.

This is a worthwhile case for Maryland personal injury lawyers to read, both on the issue of admissibility of insurance, and with respect to the admission of weather reports, although the case does not break any new ground. You can find the Titan v. Advance here.

There is an interesting story today in the New York Times on the chief justice of the West Virginia Supreme Court, Elliott E. Maynard, and his relationship with coal-company executive Don L. Blankenship. Apparently, these two met “accidentally” in Monte Carlo in the summer of 2006, sharing several meals even as the coal executive’s company was appealing a $76.3 million jury verdict against them to the court. A little more than a year later, Justice Maynard was the swing vote in a 3-to-2 decision in favor of Blankenship’s company, nullifying the jury’s verdict.

Apparently a spokesman for the coal company said the whole thing was a coincidence. The two men were vacationing separately, although the spokesman allowed that they met occasionally for lunches and dinners. These men were photographed together on July 3, 4 and 5, 2006.

I don’t know about you, but I can’t tell you how many times I have been vacationing in Monte Carlo, randomly bumped in to a friend there, and then met with that friend at least three days in a row. This does not happen to everyone? Who knew? Do you people even have private jets?

In 2004, Supreme Court Justice Antonin Scalia famously refused to disqualify himself from a case involving Vice President Dick Cheney, although the two were friends who had taken trips together. Justice Scalia contended that disqualification was not required because Mr. Cheney had been sued in his official capacity.

I disagree with Justice Scalia on this point. Actually, I think I disagree with him on pretty much every point where reasonable minds could differ. But at least that conflict was out in the open. So whatever you think of Justice Scalia’s decision, at least it was above board. In this Monte Carlo mess, no one knew until these pictures surfaced of these guys together in Monte Carlo.

Apparently, hundreds of West Virginia miners lost their jobs as a result of this decision. If you are one of those miners, how exactly do you feel seeing those pictures?

I read an interesting article in The Oregonian on Sunday discussing the growing phenomenon of jurors turning to the Internet for information while the jury is still deliberating.

The article was precipitated by an Oregon DWI criminal case involving reality TV star Matt Roloff (who I have never heard of and cannot muster up the energy to Google). The jury had been deliberating for more than four hours over two days when the jury foreman told the judge one juror had done research on the definitions of “implied consent” and “beyond a reasonable doubt” and another had researched the accuracy of field sobriety tests. Interestingly, the parties avoided a mistrial by allowing the judge to reach a verdict. The judge found that Mr. Roloff was not guilty.

There is no real solution to this. There is not the will or the funding to sequester jurors. As reports of independent research by jurors grow, the only meaningful response we are likely to see are judges making a bigger point of clarifying to jurors their obligations not to turn to outside sources. But, really, it is already pretty clear so I don’t think their making a bigger issue of it is going to do a whole lot of good.

Reading this article reminded me of a comment jury consultant David Ball made at a seminar that I had forgotten about until now. Mr. Ball said that jurors read the lawyers’ websites so you should make sure that nothing you have on the website would offend their sensibilities. I looked at our website again yesterday, wondering if our website had anything on it that I would not want a juror to see. I didn’t find anything but it is something that every personal injury lawyer with a website should keep in mind.

In March, I wrote a blog post discussing whether it makes sense for personal injury lawyers to videotape medical exams by the defendant's lawyer's doctor. Last week, the Oklahoma Supreme Court ruled that a plaintiff who is required to submit to an "independent medical examination" (hereinafter the more honest "defense medical exam") may videotape the exam.

In this case, the doctor had refused a plaintiff’s request to videotape the DME because (1) it would invade the privacy of others in the office; (2) it would be “annoying and distracting” to the DME doctor and his staff; and (3) it would interfere with the doctor’s examination.

Actually, these are not the doctor’s objections. These are the defense lawyer’s objections. The doctor was more than happy to allow the DME to be recorded as long as the defendant’s lawyer did not object. Moreover, all of these objections are silly. First, obviously the video should only be permitted to videotape the doctor’s examination of the plaintiff. Second, for $500 an hour, or whatever the doctor is charging, he should be able to bear a little annoyance and distraction. Finally, there is no reason to believe that videotaping at the DME would interfere with the examination.

The Oklahoma Supreme Court followed the wisdom of courts in Kentucky and Indiana, which permitted audio recording of DMEs, and found no reason why the logic did not extend to videotaping an exam.

What I learned from reading this opinion is a little more on the history of compelled medical exams. In the nineteenth century, the U.S. Supreme Court in Union Pacific Ry. Co. v. Botsford, 141 U.S. 250 (1891) affirmed the longstanding common law that compelled medical examinations in personal injury cases were “repugnant to a person's privacy and bodily integrity.” Obviously, that view has changed over time. I agree that the more modern view is the appropriate view because if a personal injury plaintiff puts their health at issue, it is fair game for the defendant to be able to have the ability to evaluate those injuries in the adversarial system. But it underscores that medical exams are not a right to which plaintiffs must blithely acquiesce without fair conditions and limitations.

Again, as I wrote back in March, while I think it should be permissible to videotape a DME, I question whether personal injury lawyers want to go down this path. While I would love to have a library of tapes of a given doctor’s DMEs, the potential harm might outweigh the benefits. I think it would force DME doctors to do more complete examinations than what is often an assembly line examination. Moreover, I think the DME doctor would likely maintain a nice guy persona during the examination. A part of the argument for videotaping is that with a videotape, the jury can see what a jerk the doctor really is. But how many doctors are going to come off poorly when they know they are being videotaped? An even graver concern is that you have not fully prepared your witness for trial testimony at the time of the DME, leaving him/her vulnerable to making poor judgments during the examination, such as overstating the scope of the injuries, or acting defensively or inappropriately with the doctor, who is more likely to be mindful of the impact of the videotape.

The Maryland Court of Appeals issued an interesting opinion last week on Maryland’s assumption of the risk doctrine in American Powerlifting Association v. Cotillo.

The Plaintiff, a Prince George’s County police officer, was seriously injured in a power lifting contest at Patuxent High School in Calvert County, Maryland. He brought a negligence claim in Calvert County against the American Powerlifting Association and the Calvert County Board of Education. Essentially, the Plaintiff claimed that his injuries could have been prevented by the two Patuxent High School students who spotted the Plaintiff during his effort to bench press 530 pounds. A Calvert County Circuit Court judge granted the Defendant’s motion for summary judgment on the grounds that the Plaintiff assumed the risk of his injuries.

The Maryland Court of Special Appeals affirmed on all counts except the negligence claim grounded in allegations of improper preparatory instruction of the spotter. The court’s reasoning was that the Plaintiff did not know the spotters were improperly trained, and because their improper training presented an enhanced risk not normally incidental to powerlifting, Plaintiff could not have assumed the risk.

The Maryland Court of Appeals disagreed, finding that the assumption of the risk doctrine barred all of Plaintiff’s claims, because any person of normal intelligence knows or should know that one of the risks inherent in powerlifting is that the bar may fall and injure the participant.

Continue reading "New Maryland Assumption of the Risk Opinion" »

The Seattle Post-Intelligencer reports that Allstate Insurance Co. will now fairly compensate thousands of Washington drivers for out-of-pocket medical expenses in a class action settlement. In 2005, Allstate was sued for arbitrarily limiting PIP payments for car accident victims. Allstate used Colossus to determine the average pay rate for a procedure in the geographical area and then paid out only 85 percent of what it found to be the average amount. To be clear, they did not pay what they thought was fair; they paid 85% of what they thought was fair. In an unrelated story, Allstate takes 100% of the premiums from their insured. This practice underscores the insurance company motto of taking premiums and denying claims.

If any of this sounds familiar to you, I blogged last week about a former Allstate employee’s testimony that revealed Allstate’s alleged systematic bad faith in a first party bad faith case in Kentucky.

I also blogged back in May about the newly strengthened first party bad faith bill that passed in Washington, which has much sharper teeth that Maryland’s new first party bad faith law, allowing for three times the actual damages incurred plus attorneys’ fees and expenses. I cannot help but wonder if that precipitated settlement in this Washington bad faith case.

The Maryland Daily Record yesterday reported on a $4 million verdict an Anne Arundel County jury awarded to the parents of a 5 year-old boy who drowned in the Crofton Country Club pool in 2006. The parents of Connor Freed filed suit against D.R.D. Pool Service, Inc, who managed the pool for the country club. The boy was at the pool with some family friends and was found floating in the pool after a trip to use the bathroom. The suit alleged that the pool was an adequately supervised by only one, 16 year old lifeguard with 3 weeks' experience. It further alleged that CPR was performed incorrectly and that a defibrillator should have been used. (D.R.D. filed a cross-claim against the family friend but the jury found him not liable.)

Interestingly, the parents' claim for the child's conscious pain and suffering was dismissed in a pretrial ruling. I do not know all of the facts but unless he was unconscious when he hit the water, I cannot imagine how there could not be a survival action for conscious pain and suffering.

The jury award was 2,000,706 for each of the child's parents. The 706 represents the child's birthday of July 6th. That gives me goose bumps. Regrettably, the real recovery will only be about $1,020,000 (plus an economic damages) because that is the cap for non-economic damages in a wrongful death case with two or more beneficiaries.

If you read Maryland Personal Injury Lawyer blog regularly, you are tired of hearing me say this over and over again. But this jury picked an incredibly specific number as compensation for these parents. Does anyone think this is an unfair award? If the award is not unfair, why does Maryland law cap damages in these cases? It is just wrong and this is one of those cases that underscores the injustice of Maryland's cap on non-economic damages in wrongful death cases.

Connor's parents have started the Connor Cares Foundation whose mission is to get legislation passed for pool safety standards and get a standardizes pool rating safety system in place nationwide. It is nice that these these parents are trying to achieve some good from such a tragedy.

I have three small kids and a swiming pool. My wife and I are pretty obsessed with pool safety. We have a lot of systems to ensure safety and I am still terrifed by the pool. Every time we start to let our guard down even a little bit, I am reminded of a chilling stat: it is safer to have a gun in the home than a pool in the backyard.

A man in Texas has filed a lawsuit against 1-800-Flowers for $1 million for telling his wife that he was cheating on her.

Leroy Greer’s Complaint states that he purchased flowers for his girlfriend through 1-800-Flowers. He claims to have specifically asked 1-800-Flowers to keep his purchase private. Mr. Greer claims he was assured that the company's privacy policy would protect him. Apparently, 1-800-Flowers pledges not to share personal information with "third parties." 1-800-Flowers sent a thank-you note to his home, and naturally his wife saw it and called the company which faxed her a copy of the invoice for the flowers.

Mr. Greer, clearly a insufferable romantic, sent along a note to his mistress that said, “Just wanted to say that I love you and you mean the world to me!" How sweet! After learning of the affair, Mr. Greer's wife demanded a $300,000 divorce settlement in addition to child support, according to Mr. Greer’s lawyer. Greer’s Complaint seeks $1 million for breach of contract and deceptive trade practices.

Under Maryland law of contributory negligence, if a Plaintiff is 1% responsible for his injuries in a negligence action, he cannot recover for any of his injuries. Maryland is one of only 5 jurisdictions (Virginia, the District of Columbia, Alabama, and North Carolina) that have this completely unjust law. There is another canon in law, the doctrine of “unclean hands” which requires plaintiffs seeking equitable relief must come with “clean hands.” In other words, they have not done anything unethical or unjust to receive relief. Yet another doctrine of Maryland law is the idea of assumption of the risk which states that you cannot recover in a negligence action if you assumed the risk by your own conduct.

These three doctrines do not apply to this case. But it is a shame because both would come in handy. This guy was cheating on his wife. Now he wants to sue the company that let the cat out of the bag. It is just plain frivolous.

Yesterday, I heard that one of the Rutgers women’s basketball players filed a lawsuit against Don Imus for his "nappy-headed ho" comment he made last spring. The Plaintiff, only one of the players, claims that Imus' characterization has tarnished her reputation.

I cannot decide which lawsuit is more frivolous. After Imus made his stupid comments, everyone and their mother has stood up and talked about how much character these women have shown throughout the controversy. Does anyone think for even a half of a second that this woman’s reputation has been tarnished? Actually, she is right, her reputation has been tarnished. But it is because she filed this lawsuit. As a potential future employer, how would you look upon this young woman?

I do not mean to attack this young girl because my in the blind guess is she is surrounded by people that led her in the wrong direction to a lawyer that just wanted to sue Don Imus and get a little attention. But both of these lawsuits are silly. This hurts personal injury lawyers and their clients because it increases the skepticism juries have every time a lawyer stands in front of a jury who has been legitimately hurt.

I wrote a blog post for the Maryland Lawyer Blog on a new opinion in Minnesota on their seat belt gag rule. After surfing around after writing the post, I found the oral argument for the case on line. The Internet era really changes televising courtroom proceedings.

I think this is a fantastic development. I also think Supreme Court arguments should be televised. Why not bring the biggest issues of the day before the American public? I know that some Supreme Court justices have expressed concern that televising hearings would result in justices to losing their anonymity (I could not pick Justice Souter out of a lineup, I'm sure) and that the media might use sound bites to misrepresent statements made by the justices. But aren't these the fortunes of public life? Why should the Supreme Court be immune? Whether I'm right or wrong, I think my view will carry the day eventually and we will see televised Supreme Court hearing in the next 10 years.

Justice was served in Roy Pearson's lawsuit against his drycleaner today. A District of Columbia judge ruled that Mr. Pearson would get somewhat less than the $54 million he sought in his lost pants lawsuit: less than zero (the judge awarded the drycleaners court costs). This news came as a surprise to... well, no one. Personal injury and medical malpractice lawyers in Washington D.C. were relieved because the whole debacle was making all plaintiffs' lawyer bad by six degree of separation connection.

Mr. Pearson had sued Custom Cleaners because Pearson said the cleaners lost an expensive pair of his pants. His lawsuit claimed that signs in the drycleaners that read "same day service" and "satisfaction guaranteed" were misleading to the consumers.

I've been meaning to summarize my thoughts on this case for the last few days but this Houston Chronicle editorial says it better than I would have.

A class action lawsuit was filed last week in Seattle, Washington against an internet lawyer rating service named avvo.com. The lawsuit claims that the service provides a misleading and inaccurate assessment of lawyers' abilities, and is in violation of the Washington Consumer Protection Act. According to the lawsuit, the website gave two Supreme Court justices the same rating as an attorney who was convicted for conspiracy to defraud the government.

According to the lawsuit, a Bellevue, Washington lawyer listed an award with Avvo he won last year for playing softball, which caused his rating to rise. Obviously, this award is unrelated to the lawyer's ability to practice law.

I have mixed feelings on Avvo, which has yet to begin rating Maryland lawyers. On one hand, I think many consumers, particularly unsophisticated consumers, need some assistance to make their decisions. These consumers need particular protection from lawyers who pretend to be personal injury lawyers but have never come close to trying a personal injury case before a jury. The problem is, however, that it is impossible to conjure up an objective formula to rate lawyers. This difficulty was clearly underscored by the lawyer whose rating increased by his ability on the softball field.

This week has been an all-time record for traffic on the Maryland Personal Injury Lawyer Blog. Is this because of lawyers needing to know my thoughts on the nuances of handling personal injury cases? No. [EDITOR'S UPDATE: There is a verdict: click here for blog on VERDICT in this case.]

For those of you just tuning in to this nonsense, Administrative Law Judge Roy Pearson is suing his dry cleaner for millions of dollars after they lost his pants. On the stand this week, Judge Pearson -- I tried, I can't do it -- Mr. Pearson cried on the stand as he recalled the horror of losing the pants from his precious blue and maroon suit.

Mr. Pearson claims to have owned exactly five suits, all Hickey Freemans which do not come cheaply, one for each day of the work week. But after putting on a few pounds, his suit rotation system crashed when he picked up his newly altered suits from the dry cleaner and could not find one pair of pants.

The pretrial hoopla about how insane this case is was completely lost on Mr. Pearson, who representing himself, said in his clearly understated opening statement, "Never before in recorded history have a group of defendants engaged in such misleading and unfair business practices."

Under cross-examination, Mr. Pearson said the District of Columbia Consumer Protection Act, under which he is suing Custom Cleaners, should grant a customer whatever he or she wants if there is a "Satisfaction Guaranteed" sign.

The crazy thing is the dry cleaner actually took that guarantee to heart. Five years ago, when there was a problem with one of Mr. Pearson's pants, the dry cleaner gave him a check for $150 with no questions asked. However, the dry cleaner asked Mr. Pearson to take his business elsewhere, probably because the guy drove them nuts on a regular basis. But in one of the least prophetic moments in dry cleaning history, they relented when Mr. Pearson asked if he could stay. How much harm could the guy cause, right?

The presiding judge in the case, Judge Judith Bartnoff, is expected to render her decision next week. Is there any chance on earth she does not do the right thing with all of this attention focused on the case? I think the chances are similar to the likelihood of that second Rodney King jury (the federal jury after the LA verdict) coming back with a defense verdict. Mark my words: a defense verdict or an incredibly low damage award is coming down the pike next week. And Roy Pearson does not see it coming....

The New Jersey Supreme Court weighed in on the issue of whether expert testimony is required for the admission of photographs of damage to the car or truck as probative to the issue of a plaintiff's damages/injuries.

In Brenman v. Demellon, the Plaintiff was driving in stop-and-go traffic when she was rear ended by the Defendant. The Plaintiff allegedly suffered a herniated cervical disc requiring a cervical fusion.

At trial, the Defendant sought to introduce photographs showing minimal damage to the rear bumper of Plaintiff's car to contend that the Plaintiff could not have suffered a herniated disc in this accident given the property damage to the vehicles. Plaintiff filed a motion in limine seeking to bar the admission of the photographs absent expert proof to connect the condition depicted in the photographs to the biomechanical forces that resulted from the impact between the two cars.

The trial court admitted the photographs, specifically concluding that “[j]urors can infer from their viewing photographs that the plaintiff could not have been as seriously injured as she claimed” and noted this question should be left to the discretion of the trial court.

After an award of zero damages, the Plaintiff appealed. The Appellate Division (New Jersey's intermediate appellate court) reversed and remanded the case for a new trial, adopting a per se rule that requires expert testimony to prove a causal link between the extent of damage to an automobile in an accident and the cause or extent of injuries arising from that accident consistent with Delaware law in Davis v. Maute, 770 A.2d 36 (Del. 2001). In that case, the Supreme Court of Delaware held that: (1) as a general rule, a party in an automobile accident case may not directly argue the relationship between the damage to the vehicles in the car accident and the extent of Plaintiff's injuries caused by the accident absent expert testimony on the issue; (2) lawyers may not argue by implication what the lawyer could not argue indirectly, i.e., they may not characterize the accident as a fender-bender or otherwise downplay the seriousness of the accident; and (3) the lower court erred in admitting the photographs of the Plaintiff's car without a specific instruction limiting the jury's use of the photographs.

The Supreme Court reversed, holding that the admissibility of photographs of the vehicles rests on whether the photograph f