Maryland Injury Lawyer Blog

Lawyers always argue over anything where there is not black and white set rules. (Actually, we argue when there are set rules, too.)

No one exactly knows the rules of the sequences of discovery because the rules are whatever the motions' judge says there are. So lawyers take positions on these issues with varying degrees of reasonableness.

A new Wisconsin cases is illustrative of this issue. In Dauska v. Green Bay Packaging Inc., the defendant filed a motion for sanctions and to compel the deposition of the Plaintiff who refused to be deposed. Why? Plaintiff's attorney refused to allow his client's deposition until he received discovery responses from the Defendant. Plaintiff's lawyer did not file a motion for a protective order but did make it clear his client would not appear for deposition.

Continue reading "Timing of Discovery Obligations" »

We should probably have a subsection for cross-examination materials in our Litigation Strategies category. But we have a lot of materials both on the web site and on the blog that I think are of interest if you are preparing a cross:

• Lots of sample cross (and direct) examinations
• David Ball on Damages: Cross-Examination of Experts (the "one" thing that - and this is a bold statement - always works when crossing a defense expert)

• Cross Examination of Truck Driver (we got $1 million verdict in the case based largely on this cross)
• Cross Examining Insurance Company's Medical Expert (fighting the fight on financial bias)
• Cross Examining IME Doctor on Bias (yes, we beat the financial bias drum hard)
• Cross Examination Thoughts from John Bratt (more on, ah, bias discovery for cross)
• Preparing Witnesses for Cross
• Great story of a recovery when you can't touch the witness on cross

• Cross Examining Experts (thoughts from Dorothy Clay Sims who pretty much makes a living running around and crossing experts)

I'm a big fan of science. I would think there would be one best way to approach a personal injury case. But I'm always amazed at how trial lawyers with such unbelievably different approaches and different styles can be successful. But it is not just trial lawyers. If you look at the best of the best among politicians, musicians, actors, athletes, mathematicians, you name it, they are all different and approach their craft very differently, albeit with some common treads.

The same is true with insurance companies. I think, for example, State Farm and GEICO have unbelievably different business models when it comes to running their business... including their approach to handling personal injury car accident claims.

One of my jobs here is to discuss strategy with our lawyers with respect to the cases they are handling in litigation. It is one of my favorite parts of the job: I'm providing strategy and tactical advice without having to do the heavy lifting. Whether it is an accident or a medical malpractice case, one of my first questions is, "Who is the insurance company?" (and "What are the policy limits?). Because you have to have some idea of who you are dealing with in trying to settle the claim or even when you know you are going to try the case.

State Farm and Nationwide, for example, could have have different approaches to personal injury cases. At Nationwide, a verdict that exceeds the policy limits by a $1 is a federal case. Alarms go off, file audits are conducted, and the world gets turned upside down. At State Farm, they call a day like this Tuesday.

Below, I have analyzed the insurance companies/adjusting companies we deal with in 97% of the motor vehicle accident cases we handle:

• Allstate
• Ameriprise
• Chubb Insurance
• Cincinnati Insurance
• CNA
• Encompass
• Erie
• Farmers Insurance
• Gallagher Bassett
• GEICO
• Liberty Mutual
• MAIF
• Nationwide
• Paramount
• Progressive
• Safeco
• Sedgwick
• Selective Insurance
• State Farm
• The Hartford
• Travelers

Continue reading "Advice on Negotiating Car Accident Claims with Each Insurance Company" »

Trying to successfully resolve clients' medical liens has to be one of the most difficult challenges facing personal injury lawyers in large cases. I have had many cases where the hardest part of the case was not getting the settlement or verdict' but getting the medical liens resolved. It also can be most frustrating because while defense lawyers take a lot of crazy positions in our cases, the threat of an eventual trial usually allows logic and reason to surface. In dealing with medical lien holders, logic and reason and even their own economic interest are rarely prominent players in the mix.

Most of these frustrations are shared only among plaintiffs' lawyers and their clients while the rest of the world worries about their own problems. Which is why I have enjoyed watching the U.S. Supreme Court wrestle with these issues in Delia v. E.M.A.

At the center of this tragedy sits an oblivious twelve year old girl who lives - peacefully, I pray - in Taylorsville, North Carolina. As a result of medical malpractice during delivery by a doctor who had a history of drug abuse, and surrendered his North Carolina medical license, she has severe mental retardation and suffers from a seizure disorder. She is deaf, blind, unable to sit, walk, crawl or talk.

[Brief intermission: You know, I'm writing about this case because these lien issues impact a lot of people. This matters to people who are really suffering and really deserve justice which is money damages in our judicial system. And I can't tell you how often I drive by the most horrific facts in a case, digging for some teachable point on the collateral source rule, without giving it much thought. I like myself 15% less than I otherwise would because of this, but what choice do we have? Become immersed in every case that we read and put ourselves in the shoes of everyone suffering? But, this one today just gets me and I'm finding myself imagining being in the shoes of every single person in this tragedy.]

The case settled for $2.8 million. Of course, the settlement agreement did not - because it really can't - allocate separate amounts for past medical expenses and pain and suffering and other damages. North Carolina's Medicaid claimed its one-third lien. The law allows the state to take the lesser of either the total amount of the lien or one-third of the court-ordered malpractice payment.

The one-third rule has a real upside: it is easy. Bright line rules are always that way. But as the Supreme Court told us in Arkansas Dep't of Health & Human Serus. v. Ahlborn, pure bright line justice is not acceptable and the sum allocable to medical expenses must be determined by some sort of reasonable process before the state can recover on its claim. The 4th Circuit agreed, overturning the North Carolina law because North Carolina statute’s one-third cap on the state’s recovery against a Medicaid recipient’s settlement proceeds did not satisfy Ahlborn because there was no showing that the settlement proceeds were intended to compensate the plaintiff for that amount of the medical claims. Accordingly, the case was remanded to the trial court for an "evidentiary hearing" at which the district court would figure out how much DHHS should get.

Continue reading "Supreme Court Looks at Medicaid Liens" »

I've found it a struggle to get other lawyers at Miller & Zois as excited about blogging as I am. I wish John Bratt wrote more on the Baltimore Injury Lawyer Blog. When he does write a post, it is usually informative and entertaining.

With that introduction, here is his most recent post about Maryland lawyers who feel compelled to cite "case law" in making discovery objection that is just silly.

The issue of pre-impact fright is a big deal in wrongful death car accident cases in Maryland.

Why? Well, in non-malpractice cases we have a cap on wrongful death claims and a cap on survival actions. In Maryland - I know some states have it reversed - the survival action is the victim's loss: his medical bills and pain and suffering damages. It is the only claim in the victim's own right for the wrong done to them. Under this law, if you shoot a guy in the back of the head without him seeing you coming, there is no survival action. Like the cap itself, this is a dumb law. (Fill in here your own rant about how misguided the cap is. I've done it here many times before, but the subject is inexhaustible.)

This matters because juries are not stupid. They want to compensate the victim in their own right and, accordingly, tend to inflate the value of pre-fright impact to make up for the fact that the law foolishly ignores the victim. My partner tried a case once where the jury awarded $3 million for pre-impact fright when the victim uttered an expletive before he died (the driver lived and testified at trial).

Anyway, trying to blunt some of the stupidity of this law, the Maryland Court of Appeals in Benyon v. Montgomery Cablevision in 1998 told us that you can recover in a survival action for mental anguish when you see what turns out to be your death coming. The court found that in survival actions where a decedent has "great fear and apprehension of imminent death before the fatal physical impact, the decedent's estate may recover for such emotional distress and mental anguish as are capable of objective determination."

Of course, the problem with pre-impact fright is it is wrought with evidentiary challenges. What did the dead guy think before he died? But the Maryland courts have shown some flexibility on this, in this case and, more recently, in concluding that a boy who drowned suffered in spite of the fact that there was no evidence of this other than the correct application of common sense. Plaintiffs' lawyers still have to fight this - here is a motion I had to file in a GEICO case - but you should either win in Maryland or have a great appellate issue.

Regrettably, South Carolina went in another direction last week, ruling that there was no evidence to support a conscious pain and suffering claim in a fatal automobile accident case.

There are two issues that the parties addressed in their briefs. First, how much proof do you need to show to prove conscious pain and suffering (which Maryland addressed in the drowning case I just mentioned) and this question of pre-impact fright. The court largely dodges the issue because this case was not well plead - the plaintiff's lawyer did not even bring a survival action although - adding to the complexity - they settled with other defendants on a survival action that was never pled). Instead, the court refuses to get down in the weeds of the facts of this case and punts on what South Carolina should do in the future.

How boring for us. So let's look at the defendant's argument in the case.

In South Carolina, the cause of action for physical injury survives, even if the injured person does not, and the established law of South Carolina recognizes pain and suffering as damages in such a survival action, but the law requires that it be proven and that it be consciously suffered. Camp v. Petroleum Carrier Corp., 204 S.C. 133, 28 S.E.2d 683 (1944). Speculation is not allowed. In Camp, the evidence considered by the Supreme Court was that a man was heard groaning from within a car before he died of injuries sustained in the wreck. There was no evidence, however, that he was “conscious of pain and suffering.”

What? You had a guy who gets in an accident. Before he dies, he is groaning. Now which is the more likely scenario: he was suffering or he was not suffering? Let's get Nate Silver or someone to poll people about which one is more likely. I bet 90% say it is more likely that he suffered before he died. Underscoring its credibility, the defendant also signs off on- get this - the idea that evidence that a shooting victim crawled away leaving eight foot trail of blood and clutched leaves and pine needles to his chest wound does not rise to proof of conscious pain and suffering. I kid you not.

Continue reading "Pre-Impact Fright: Why It Matters So Much" »

U.S. District Court Judge William M. Nickerson remanded an asbestos case back to Baltimore City Circuit Court, rejecting defendant's efforts to remove the case to federal court because the defendant had joined non-diverse defendants.

The case is one of many asbestos cases on the docket in Baltimore City. Plaintiff alleges her mesothelioma was caused by exposure to asbestos from Colgate's talcum powder. In answers to interrogatories, plaintiff identified Colgate's Cashmere Bouquet talcum powder as the sole source of her asbestos exposure. In her June 2012 deposition, Barlow testified that she did not believe she suffered any other exposures.

There is a one-year limit on removal unless the court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” Colgate tried to push the "unless" part of that rule, claiming the joinder was fraudulent.

The judge chided Colgate's lawyers, saying he really was not sure what their argument was, but eventually assumed that Colgate was claiming that plaintiff had no intention of pursuing her claims against the Maryland defendants. But showing that a plaintiff did not intend to pursue a joint judgment is insufficient. Instead, Colgate had to show show that plaintiff has no intention of pursuing her claims and that no colorable ground for claiming such an intention existed. Because Colgate's attorneys did not even really make an effort to do this, Judge Nickerson easily remanded the case back to Baltimore City. Which, is exactly where the plaintiffs want to be.

I'm pretty good at tracking Maryland state appellate opinions. I need to do a better job of keeping an eye on these new federal court opinions.

You can find the court's opinion in Barlow v. John Crane here.

Serious personal injury cases, where pain and suffering damages are high but less than the cap on non-economic damages, are the hardest claims to value and the hardest cases to settle without filing a lawsuit. Almost invariably in these cases, I'm telling my clients that the value of the case is likely to be higher after filing suit than the insurance company's best pre-suit offer. The facts bear this out. I would estimate that our clients do better filing suit in 98% of the cases we file.

Why is that? On one level, there is a greater ability to generate comparables - "comps" to use the lingo" - in personal injury cases than there is in accessing, say, the value of real estate, where you have few comps because you are limited by tight geographical locations. I mean there have been about five zillion herniated disc cases with a laminectomy and fusion at C4-C5 where the client had not prior injury or degeneration. Why isn't there just a well established value for that?

Continue reading "Why Serious Injury Cases are Hard to Settle Without Filing Suit" »

I rarely write about criminal cases because I find criminal cases uniquely depressing and because they rarely relate to what we, as personal injury lawyers, are doing. Venus and Mars. I have no idea how to handle a criminal law case and criminal lawyers have no idea how to handle a personal injury case. Yet, annoyingly, criminal lawyers think they do, which is why I'm constantly getting calls from clients complaining that a mostly criminal lawyer is screwing up their accident claim. (Did I just say that in my out loud voice? Sorry.)

But this Maryland Court of Appeals case decided last week - Maryland v. Thomas - addresses two issues that are of interest to all trial lawyers: (1) what to do with jurors who - for good reasons and bad don't want to be on the jury, and (2) under what conditions do appellate issues arise from juror communications to third parties - notably, in this case, with the court.

The defendant in this case was convicted of second degree depraved heart murder after a stabbing outside of a Baltimore County night club. I forget exactly what "depraved heart" means, but it does not sound good. The Court of Special Appeals reversed defendant's conviction, finding that while the evidence was sufficient for the jury to convict, the trial court committed prejudicial error when it failed to promptly notify the attorneys of a communication between the trial judge's secretary and one of the jurors. Apparently, the juror called the secretary and he wanted to get the prosecutor's home number to ask her out. The judge thought this was no big deal.

Okay, I'm making that up. That would be over-the-top. This problem was far more nuanced. After the juror at issue was chosen, the juror told the judge and the lawyers that his grandmother is 89 years old and is expected to die any minute. The juror also made clear that he just had to be at the funeral if there was one and otherwise fully intended to serve.

The juror's grandmother dies. Baltimore County Circuit Court Judge Michael Finifter reveals a note from the juror requesting off the jury to assist in preparing for his grandmother's funeral. The judge also advises counsel that the judge's secretary had been contacted by a member of the juror's family to tell him about the death of his grandmother. The juror apparently said, without the lawyers present or notified of the issue, that he would be able to continue. These conversations took place before the alternates were discharged. Subsequent to this, the juror changed his mind, and once again requested to be excused.

Now the court is in a box and the defense attorney is mad that he was not made aware of the discussions with the juror. The judge refused the juror's request to be excused. The defense lawyer - who probably saw the conviction coming - sought a mistrial which the judge denied.

Continue reading "Judge's Communications with Jurors: New Maryland High Court Opinion" »

Last Friday, a federal judge in Washington D.C. issued an opinion on whether to impose discovery sanctions on Marriott that I think is instruction for personal injury lawyers dealing with defendants that destroy evidence.

In Mahaffey v. Marriott, plaintiff's lawsuit alleged that while exiting an elevator in a motorized scooter, the elevator violently lurched, throwing him off the scooter, causing the scooter to land on top of him, resulting in serious injury. (No, I can't picture it either.)

I'm assuming the injuries are serious. He appears to have hired a Florida lawyer who retained local counsel here. Usually people are not going through that effort unless they have a real case, although some of the facts I'm about to get to will make you question just how badly plaintiff was injured.

So plaintiff's attorney puts Marriott on notice of the claim. The letter was sent by certified mail. Lawyer gets back a green card, the whole nine yards. (Spoiler alert: The court says, incredibly to me, that "Marriott maintains that it has no evidence that it received the demand letter leaving open the possibility that it received an empty envelope." Wow. The court backs off this later in the opinion. But a judge saying that I might have sent an empty envelope by certified mail is the very reason why I live a paranoid life. And it lets you know the plaintiff is going to lose) The letter sets forth the name of the plaintiff and the date of the accident. It did not - and I can't tell you why - tell Marriott the name of the hotel involved in the accident.

Continue reading "Spoliation of Evidence in the Real World" »

One of the things that we try to do on our website is create a place where fellow personal injury lawyers can go so that they (1) don't have to reinvent the wheel, and (2) can see how another law firm is doing the same things that they are doing. The latest edition to our website in this regard is sample letters that we have written, and most everyone who regularly handles these cases has written at some point or another. Here is our initial shot at putting this list together.

Some defense lawyers have told me that the sample motions we have on our website have been insanely misused to the point where the motion includes the fictional name of our client in the motion. Templates like this go to good use by lawyers who pull out pieces of it that they like and are applicable to what they are doing. They are also misused by lawyers looking for a cheap short cut in a job that affords very few.

I'm going to try to add to these letters over the course of the next few months. If there is anything in particular that you think we should add, let me know.

John Bratt writes a blog post today about how to tell if your potential jurors are using Twitter and what they are saying.

• Social Media Discovery
• Who can you friend? (one bar association has an opinion)
• Social media and trial preparation
• The Maryland Court of Special Appeals addresses the social media for (what I think) was the first time
• Defense lawyers are spending a lot of time digging for dirt on plaintiffs on Facebook
• Jury selection and Facebook
• Another juror on Facebook story
• Join us on Facebook
• Join me on Google +1

You can call it a sad but true fact if you want: the value of a personal injury case in Maryland might double (or be cut in half) based on where the case is tried. I provide here our thoughts on where each Maryland county and Baltimore City ranks on the food chain of preferability when it comes to venue in personal injury cases.

Defense lawyers want to go back to olden days when plaintiffs did not forum shop, they just filed where it was most convenient and advantageous to plaintiff. Defense lawyers are big into restoring traditions that never existed in the first place. I've never seen a stitch of evidence to suggest that venue has not been a battlefield since the Industrial Revolution. There are, of course, more opportunities where reasonable minds can differ as to the appropriate venue in 2012 because we are so much more cosmopolitan today. Just about every tort that arose 150 years ago was on some guy's farm. So while the analysis is more complex now, there have always been different communities that had different values and this has an impact on the lens with which they view personal injury claims.

Continue reading "New Maryland Court of Special Appeals Opinion on Venue" »

Defense lawyers are reluctant to say that the plaintiff is lying. They will insinuate, suggest, intimate, and any other verb you can think of to try to lead that horse to water, but they will rarely come out and say it. It is largely a trial tactics decision but it is also because defense lawyers are human. (No, really! It's true!) It is uncomfortable to call someone a liar or a bad person, so most defense lawyers avoid it. The strategy for many, then, is to turn it over to their medical expert, hoping that packaging it in a white coat makes it more credible.

Medical experts really should not be testifying as to the plaintiff's credibility. Under both Maryland and federal law, the credibility of a witness and the weight to be accorded the witness' testimony are for the jury and, accordingly, it is "error for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying." Stated clearly by the Maryland Court of Appeals: "It is the settled law of this State that a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth. Testimony from a witness relating to the credibility of another witness is to be rejected as a matter of law."

Continue reading "Can the Defense Expert Say the Plaintiff Is Lying? No, But Maybe You Should Let Him Anyway" »

The purpose of uninsured motorist coverage - which most of us blindly have because our state requires it - is for protection in the event that we get hit by a driver with no insurance or not enough insurance to provide compensation for our injuries. Most uninsured motorist policies compensate the victim for any amount, within the policy limits, that would have been recoverable from the at fault driver as money damages resulting from a car collision.

What happens when your client is on a motorcycle that is not listed on your insurance policy? Does your uninsured motorist coverage kick in? This issue is usually framed by breaking down the language of the uninsured motorist agreement that considers a motorcycle to be an excluded vehicle. But the analysis does not end there. Some states - Maryland is a prime example that I will get to in a second - are willing to rewrite the terms of an insurance policy to meet public policy objectives. This is done either by judicial fiat or by the state's uninsured motorist statutory scheme.

So outside of Maryland, Plaintiffs' lawyer in these cases argue that the state uninsured motorist laws provides protection that extends not just to the vehicle but to the person. Accordingly, this argument goes, UM coverage is broadly construed to cover all motor vehicle accidents. The insurance companies, argue, on the other hand, that its insured should not be able to have their cake and eat it too by doing someone inherently unsafe while not paying for the coverage. There is merit to both arguments.

Continue reading "Is Your Client's Motorcycle Accident Covered by Her Uninsured Motorist Policy?" »

A few weeks back, I put up Laura Zois' opening statement in a brain injury case she tried last year. This is the closing and the rebuttal close which you can find here and here.

I have not put up a truly substantive post in a week or two but not much has stuck me and our appellate courts have been pretty quiet this summer, at least with respect to personal injury related cases. I've started looking for landmark or even interesting opinions outside of Maryland and I'm coming up similarly empty. I could ramble on about Penn State or global warming or something but I don't think that is why you visit this blog.

I've been following, with interest, opinions around the country dealing with the discoverability and admissibility of social media evidence and the issue of jury misconduct that involves the use of modern technology and social media. I found on John Day's Twitter feed today an article that addresses the latter issue of juror misconduct. As John says, the article is written by two defense lawyers tripping over themselves to show potential insurance companies clients that drank the "plaintiffs must be stopped" Kool-Aid. But, it is a well written article and a really good collection of the case law on this topic.

In a footnote, the authors talk about a search they did on Twitter for "jury duty":

On February 15, 2012, the authors of this article conducted a general Twitter search for “jury duty.” In the hour preceding the search, there were more than 170 tweets referencing jury duty on Twitter, including such comments as, “Someone, pls take a bat & beat me senseless with it. Why am I here yo!?! Jury duty is so cornyyyyyyyyyy,” “Anyone ever have to go for jury duty? Do they let you text and email etc from your phone while you wait? Any other helpful info,”and “Hes guilty…Jury Duty is honestly the biggest waste of time….”

Continue reading "Jury Misconduct Through Social Media" »

I added a traumatic brain injury opening statement Laura Zois gave earlier this year in a car accident case to our example opening statements on our website.

The U.S. District Court for Maryland issued an opinion this week denying summary judgment in Gilliespie v. Ruby Tuesday, a res ipsa premises liablity case.

The facts are simple. Plaintiff went to a Ruby Tuesdays in Aberdeen, Maryland for lunch. Before plaintiff and her friends were seated, a waiter stood on a chair and adjusted the lamp hanging above plaintiff's table. A half hour later, the lamp came crashing down on the plaintiff.

How much would you bet that the waiter did something to cause that lamp to fall? I wouldn't bet my house, but I would definately be willing to bet an amount that I would hate to lose.

But maybe you are less impulsive than I am and instead of making a quick bet, you would rather have more information. What would you want to know? The first thing on your list I'm sure would be what an inspection of the light fixture showed, right? Well Ruby Tuesday “attempted to preserve the shade after the incident” but lost the lamp in the "ordinary course of business.” With your best efforts you can't keep a lamp that fell on someone's head? It gives you a warm and fuzzy feeling about "We tried to keep dangerous toxins out of your food, but we did let some slip into your cajun jambalaya pasta in the ordinary course of business."

Continue reading "New Maryland Res Ipsa Opinion" »

The Maryland Court of Appeals issued its opinion in Nicolas v. State, a Montgomery County criminal case.

The primary issue on appeal dealt with double jeopardy, merger of offenses, and a bunch of other stuff I have long forgot about since law school. But the case also raised on appeal a rather novel issue with respect to juror notes.

I love juror notes. You spend days trying to read invisible juror tea leaves and then get actual tea leaves of what the jurors are thinking. Yet these are illusory tea leaves. My favorite story was when the jury came back with a single question: "May we see Plaintiff's damages board again?"

Continue reading "Jury Notes: New Maryland Opinion" »