Maryland Injury Lawyer Blog

This blog post is an exception to the usual "personal injury related only" rule on this blog. The Maryland Court of Appeals (Maryland's "supreme court") ruled unanimously today that Maryland must recognize as married same-sex couples who legally wed in other states.

A married same sex couple from California sought a divorce here in Maryland. Prince George's County Judge A. Michael Chapdelaine denied the divorce petition because the marriage was “not valid” and “contrary to the public policy of Maryland.”

Continue reading "Same Sex Marriage Recognized By Maryland High Court" »

• Plaintiff's lawyer names expert two days late. Defendant names experts two months late. Defendant moves to strike plaintiff's expert. The Mississippi trial judge applies some common sense.
• Every time I hear talk of the "saving statute" it always ends the same way: "Still, you blew the statute of limitations."
• Plaintiff's get a rare preemption win.
• A big mistake medical malpractice lawyers make: assuming their experts can speak to causation because they can speak to standard of care.
• Tennessee effectively tosses the locality rule in medical malpractice cases.
• Defensive medicine rant from defendant's expert in a malpractice case leads to a new trial.

My Revised Opinion on Pit Bulls

Friday, I wrote a blog post about the Maryland Court of Appeals opinion in Tracey v. Solesky that imposes strict liability for pit bull owners and, seemingly, landlords, in dog bite cases. I've offered an opinion generally supportive of the court's ruling and argued that the court should go a step further and hold all dog owners accountable when their dog bites another person (or animal for that matter).

I think I'm right on the latter point. If your dog bites someone and causes serious injury, I think you should be liable for the harm that was caused. But I got a lot of comments and emails from people who strongly disagreed with some of the loose facts that I threw out. While some of these comments were just crazy aunts and uncles peeking out of their attics and basements, others provided real insight about these dogs that demonstrated a far greater appreciation of facts and studies about pit bulls than I have.

Continue reading "Maryland Pit Bull Law: A New Opinion" »

The Maryland Court of Special Appeals issued its opinion on Friday in WMATA v. Williams, a workers' compensation claim that addresses how far the chain for causation can go before the court decides that a later "related" injury is just too attenuated. Although I do not handle workers compensation cases, I think the legal issues here are interesting and have broader implications beyond workers' compensation cases.

The plaintiff (I know, you call them claimants in comp; it just sounds weird to me) hurt his knee on the job. While attending "work hardening" therapy, the driver of a car in the parking lot put her car in reverse, backed into the plaintiff, resulting in an injury to his other knee for which he also sought workers' compensation benefits.

I can see this from both sides. At first glance, I think it seems pretty attenuated to argue a causal relationship just because you coincidentally got injured going to lunch from therapy. There has to be some difference between causation in fact and proximate causation. This would seem to jive with the Maryland high court's holding in Mackin v. Harris. In that case, the court explained that for every injury, there are innumerable acts whose absence would have prevented the harm. It is the butterfly effect. Going back to Palsgraf, that is not and cannot be how proximate cause is defined. I'm a plaintiffs' lawyer and even I get this.

Continue reading "New Workers' Compensation/Forseeability Opinion" »

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

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

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

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

There were no personal injury related appellate opinions this week in state or federal court in Maryland this week but there are a few cases elsewhere worth a read:

• In Morse v. Davis, the Indiana Court of Appeals affirmed a $1.25 million verdict (actually $2.5 million reduced by the cap) in a colon cancer misdiagnosis case. Defendant made two arguments we see in various permutations in our practice. The first is the whole idea of whether an expert can speak directly or indirectly to the ultimate issue of fact for the jury. The second is the extent to which an expert can make credibility determinations about another witness. I think this is often an issue not worth fighting for plaintiffs' lawyers when the defense is calling a plaintiff a liar. Rich Friedman's book Polarizing the Case is an illuminating read on whether it is a good thing to make the trial about whether your client is a liar.
• In Horak v. Building Services Industrial Sales Company, the Court of Appeals of Wisconsin found that invoices produced by the company's lawyer, that documented the sale of products that contained asbestos, are admissible even without an authenticating witness under the ancient-documents exception to the hearsay rule. Given the value of asbestos cases, that is a pretty valuable invoice to find.
• In Saeco Electric & Utility, Ltd.v. Gonzales, a Texas appellate court reversed a $5 million verdict, finding that the case should have been submitted to the jury as a premises defect action, as opposed to straight negligence. The dissenting opinion found that because the utility was not in control of the premises at the time of plaintiff's injury, but was responsible for creating the dangerous condition that caused injury, this is not just a premises liability case. I think it is odd that in some states the dissenting opinion is filed in a separate opinion. You can find more details on the jury's verdict and the plaintiff's awful injury here.
• Riegel v. Medtronic claims another victim, this time a man alleging that a Medtronic drug pump and spine catheter caused him to become a paraplegic. Sadly, no one is talking about the Medical Device Safety Act to remedy this injustice anymore.

You can find the four appellate opinions you should read from last week here.

I hope you had a good Easter. Here are some personal injury stories/blog posts that I found of interest over the last week.

• Bob Kraft discusses the continued effort to introduce some sanity in the byzantine labyrinth personal injury lawyers face when trying to deal with Medicare liens. He summarizes the wisdom in passing a new law that simplifies the process: "[W]hen the Chamber of Commerce and the trial lawyers associations both agree on a proposed law it’s hard to think of an excuse not to pass it."
• Walter Olson reports on Overlawyered about the dismissal of a lawsuit that sought to declare an unlawful McDonald’s practice of including a toy in its Happy Meals. I don't know if it is a good idea to put toys in Happy Meals. I know my kids like getting them, but maybe it is a bad idea to connect bad food and toys. But, not every bad idea should result in a lawsuit, right?
• Max Kennerly writes about defense medicine and what may be a new trend of doctors not blaming plaintiffs' medical malpractice lawyers for all that ails the health system. I have written about this a zillion times (here, here, here, here, and here, just to name a few).
• How to structure an appellate brief.
• GlaxoSmithKline is trying to pretend that it should be a citizen of Delaware. We all get it, Glaxo does not want to answer in its home jurisdiction and wants to pretend it is a citizen of Delaware because Delaware - all 500 square feet of it - would shoot its own citizens in the head to protect a corporation. Because corporations are people too, you know. I'm fine with their legal strategy although, really, they should be telling as few people about it as possible.

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

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

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

Continue reading "New Legal Malpractice Coverage Case" »

Last week, in Hendrix v. Burns, the Maryland Court of Special Appeals dealt with the question of what plaintiffs' lawyers can admit into evidence in a car accident case when the defendant stipulates to liability.

In car accident cases, many defense lawyers loathe to admit responsibility. There is always a chance that the jury will hate the plaintiff and accept some insane version of how an accident happened. But, the best thing that can happen for the plaintiff is for the defense lawyer to deny responsibility in a case, because it diminishes the defense lawyer's credibility on the scope of the plaintiff's injuries. If you are a car accident lawyer, you want to get the jury mad at the defendant. Jurors give more money when they are mad. This is hard in car accident cases because it is hard for jurors to get mad at a negligent driver who makes what they can perceive to be an accident that they could easily make themselves. Good car accident lawyers frame the case not as an accident, but a choice the defendant made. "The defendant in this case chose not to pay attention." But, still, we all know that we have failed to pay attention while driving and it could have, under the wrong circumstances, lead to a car accident.

In Hendrix, the call to stipulate to liability was a no brainer for State Farm who defended the case. The defendant was drunk. He tried to flee the scene of the accident, but his damaged car wouldn't let him. He was in the middle of some sort of road rage dispute. A picture perfect bad guy defendant for the jury to hate.

State Farm did what they should do, file a motion in limine to exclude the introduction of evidence that the defendant was drunk, that he had been involved in a “road rage” incident with another driver and was crazily chasing that driver when he ran the red light, that defendant attempted to flee after the accident, and also that his criminal record included DUI convictions.

Plaintiff's lawyer did what good plaintiffs' lawyers do in a case like this. He brought a battery case for the road rage, arguing that has been put to bed since law school doctrines like transferred intent. He brought a negligent entrustment count. He also smartly argued that a part of Plaintiff's pain and suffering was seeing the defendant drunk and trying to flee the scene of the accident. This lawyer was doing everything he could to put his client in a position to maximize her damages.

Does this have anything to do with the appropriate level of damages in a personal injury case? It depends on your world view. If you think damages should be calculated in a hermetically sealed box, it shouldn't be admissible. From this perspective, it shouldn't matter whether the defendant was a crackhead on his 6th DWI or a nun with a 40 years history impeccable driving.

Yet, somehow, the fact that she was a nun would come out on direct. Why? Because the insurance defense lawyer is trying to minimize damages by suggesting that this nun is a sweetie and she is going to have to pay this verdict out of her pocket.

Why do we let the nun say she is a nun? Context matters. But once you agree that the fact that she is a nun should be admitted, doesn't the dam break open when the defendant is drunk. Isn't that context - like the nun - that the jury should consider?

Continue reading "Defendant Was a Drunk Driver: Should That Be Admissible" »

The Pennsylvania Supreme Court stuck down a $5 million verdict in an Ethicon endocutter design defect case last week, finding that the trial court was not restricted to considering only one use of the device, and that it properly applied a risk-utility analysis. The case talks about product liability risk-utility analysis in the Restatement (Third) of Torts. You can read the court's opinion here.

Plaintiff, a 40 year old mother, underwent gastric bypass surgery (Technically, she is the plaintiff's decedent. I use "plaintiff" because my refusal to use plaintiff's names on this blog, a stance that sometimes makes recitation of the facts awkward in wrongful death cases.). To cut and resection plaintiff's stomach, her doctors utilized an ETS-Flex45 Articulating Endoscopic Linear Cutter - called an an "endocutter" - made by Johnson & Johnson, subsidiary Ethicon Endo-Surgery (Let's say charitably that both of these companies are frequent flyer product liability defendants.). The device was designed for use in less-invasive endoscopic surgery, but also was marketed for use in traditional "open" surgery in which a large incision is used to view internal organs.

After complications, Plaintiff's doctors conducted a second surgery and discovered that staples were absent in two small sections and attributed the problem to "mechanical staple failure." Sadly, Plaintiff's stomach contents had leaked into her abdominal cavity, causing sepsis, and her eventual death.

Plaintiff's Estate filed a wrongful death lawsuit contending that the endocutter was unreasonably dangerous because it was not equipped with a means to either measure the thickness of the tissue being stapled or lock the device if the tissue thickness was incorrect. Plaintiff's Estate contended that had the endocutter been designed with with this capability, it would have prevented the staple line failure that caused Plaintiff's death.

An Allegheny County, Pennsylvania jury agreed, finding the endocutter's defective design caused the woman's wrongful death and awarded $ 5 million, finding that the endocutter was defectively designed.

The big issue in the case was the application of the risk/utility analysis required in a products liability action to determine whether a product is unreasonably dangerous. In this case, the endocutter at issue was marketed for multiple recognized uses, but the injury to the plaintiff was caused by only one of those uses. So the question is whether the trial court's risk-utility analysis should be limited to the use that caused the plaintiff injury or should it consider all of the uses of the product.

Continue reading "Risk/Utility in Strict Liability Design Defect Claims" »

Can We Streamline Jury Trials?

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

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

Continue reading "How to Try More Cases" »

The Maryland Court of Special Appeals affirmed this week a $4.1 million verdict (reduced to $3.6 million by the cap) in a medical malpractice, birth injury case against the University of Maryland Hospital in Baltimore City.

No one would disagree that the facts of the case are tragic. The plaintiff, now a second grader, was born at 26 weeks of pregnancy. While the child has made unbelievable strides in recent years - and will continue to with God's Grace - he still cannot run. His IQ is currently in the 80s. Doctors at the trial testified that he will more likely than not be be a "disabled worker" when he reaches 18, making his job prospects poor. It is an awful thing. Hopefully, his recovery continues to push him forward and he proves these predictions wrong (I realize I said this already).

Continue reading "Baltimore City Birth Injury Verdict Affirmed" »

I'll take "Gimmick Blog Post Titles That Will Defy the Odds and Be Worth Reading, I'm Serious, Just Give Me a Chance" for $400 please, Alex.

Tied for first at the top of Knick players who have had 20 points and 7 assists with 6 consecutive games is Jeremy Lin. As little as three weeks ago, if you were taking odds, you would have bet the Knicks would cut him so that they did not have to guarantee his salary for the season. The odds of going from there to this are roughly the same as Barack Obama calling you today and telling you he is dropping Eric Holder and he desperately needs you to be the U.S. Attorney General. Seriously, the last time I enjoyed a sports story this much was when Mark "The Bird" Fidrych burst onto the scene in 1976. And that was only because I was 7 years-old. Jeremy Lin is actually a better story.

There are a lot of Jeremy Lins out there in our business - great personal injury lawyers that are obscure and handling Yorkshire Terrier dog bite cases. Their first problem is the lack of opportunity. Trial lawyers can only do so much with the facts that they have. If you don't have good cases, you are going to struggle to get consistently great verdicts even if are channeling your inner Gerry Spence.

(The same is true for defense lawyers. I've tried cases against lawyers considered to the best in Maryland that I thought they were either awful or I caught them on a bad day. I've also tried cases against lawyers I thought were brilliant that I know have a very hard time chasing down $120 an hour auto tort insurance clients. It is even harder for defense lawyers in some ways because they don't get paid and recognized for good results like personal injury lawyers do... unless they really know how to spin their successes.)

They key when you are in this spot is to Jeremy Lin it. (Yes, I'm using his name as a verb, too.) You have to do the best you can with what you have. Shortly after we started our practice, we tried a case in Baltimore County where a woman was in line at the drive-thru at the bank and got in a rear end accident. The uncontested testimony was that the at-fault driver was going one mile an hour. Laura and I tried the case together. We threw everything and the kitchen sink at it and we got a $125,000 verdict. We had had better verdicts but this was our signature verdict at the time. LawyersWeeklyUSA did a cover story on it. We got some attention, more lawyers started referring us cases, in we built from there.

(Looking back, almost 10 year later, I look at all differently. Man, I wish I could not see so many shades of gray. First, I'm a little embarrassed we even took the case. How pathetic is it, on some level, to take 1 mph bumper tap case, anyway? And we are really bragging about getting $125,000? My law firm would never take that case in 2012. Yes, I believed the plaintiff was hurt from the car accident and still do. It was one of those rare, fluke things that happen. Still, we turn down cases all the time where I think the person may have gotten badly hurt from the accident but we don't think we can prove it. Also, the unspoken implication was that we were such great lawyers we could turn a garbage car accident or other personal injury case into a case just because we were the attorneys. It is a false premise although a lot of lawyers who are full of themselves would swear otherwise.)

Continue reading "Personal Injury Attorneys and Jeremy Lin" »

This blog is directed primarily to other personal injury lawyers around the country. I try not to focus too much on issues that are specific to Maryland because there is not enough lawyers in Maryland to maintain a readership. Even when I'm analyzing Maryland personal injury cases, I try to make the information of use to lawyers everywhere. But my post last week on Clark Ahlers on bid to oust the sitting judges in Howard County has generated a lot of traffic, emails and some interesting comments.

Continue reading "Howard County Race for Judge and Random Howard County Musings" »

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' Maryland 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.