Maryland Injury Lawyer Blog

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" »

Ask the average person or even the average lawyer what they think of forum shopping. Generally, it is viewed as a crime against the people. So let's talk about "forum selection" instead.

Forum selection is clearly important, demonstrated by the frequency with which parties contractually provide for and battle over venue. There are a host of reasons why forum matters so much. There are choice of law, capacity to sue, statute of limitations, caps on damages, and a host of other potential considerations. But for personal injury lawyers, we are forum shopping for one purpose: trying to find a jury panel that would be most receptive to our client's claim.

It spite of all of the hand-wringing about the crime against the people for plaintiffs' lawyers to have - gasp! - options as to where to file a lawsuit, Maryland law defers in some measure to plaintiff's selection as the choice of venue if venue is proper in the forum the plaintiff selects. The Maryland Court of Appeals has repeatedly held that it is "the moving party who has the burden of proving that the interests of justice would be best served by transferring the action…and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party.” But, let's face it, the trial court has a lot of discretion on venue. A trial judge can pretty much ignore this rule with impunity and balance the interests as the judge sees fit. We joke that the "weighs strongly" rule is only the law if the motions judge agrees it should be the law. (This was never fully explained to me in law school, let me tell ya.)

If you are a plaintiffs' lawyer, you are practicing two types of forum shopping selection: vertical and horizontal. Vertical forum shopping is moving a case to or from federal court. This is rarely an option in car accident and malpractice cases, but is a common question in product liability cases. The one thing that lawyers just don't seem to understand is the nuances of the diversity of citizenship rule for filing in federal court. Many lawyers wrongfully believe there is diversity jurisdiction if you are suing an out-of-state defendant, even if you are a resident of that state. In other words, if you have a client who is domiciled in Maryland, and file against an out-of-state defendant in federal court, that defendant can get the case transferred to the Maryland county with appropriate venue. It is amazing to me how many lawyers don't understand this.

Continue reading "Maryland's Best and Worst Places to File a Personal Injury Lawsuit" »

• In Doali-Miller v. SuperValu, U.S. District Court Magistrate Paul W. Grimm considers defendant's motion in limine regarding medical records and bills in a personal injury case. The plaintiff's lawyer did not bother writing a response, so Judge Grimm pretty much does that himself. Since Judge Grimm is the most qualified lawyer in Maryland to make these arguments, plaintiff still gets a fair shake and the motion is denied in part and granted in part. If Judge Grimm is writing about evidence in a personal injury case, I know I need to be reading that opinion.
• In Jones v. John Crane, District Court Judge Catherine C. Blake writes about federal jurisdiction in an asbestos products' liability case where the exposure allegedly occurred on the Aberdeen Proving Ground. Usual story, defendants want to be in federal court; plaintiffs want to be in Baltimore City. The case remains in federal court for now, pending further discovery.
• In Buss v. Nilar U, the Plaintiff sought summary judgment on a mediation error lawsuit filed in Carroll County, Maryland against a Wal-Mart and a primary care doctor. Plaintiff's attorney's argument was that because the doctor did not deny breaching the standard of care, plaintiff was entitled to summary judgment on the malpractice claim against the doctor. District Court Judge James K. Bredar found that while the standard of care may have been breached, there was a dispute of material fact as to causation, which is an element of plaintiff's burden of proof.
• Let's take one outside of Maryland. In Martin v. St. Dominic's Hospital, a divided Mississippi Supreme Court dealt with the difficult issue of determining what medical experts need to say when thin slicing new and pre-existing injuries.

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" »

Judges Lenore R. Gelfman and William V. Tucker won both the Democratic and Republican voting Tuesday. Challenger Clarke F. Ahlers finished third on both ballots. Judges appear on both parties' ballots in the primary (which is item #535 of goofy things about judicial elections in Maryland).

As I wrote here, I supported the sitting judges because I dislike the whole idea of electing judges in Maryland. Who knows, maybe Ahlers avails himself to the judicial nominating process and replaces Judge Gelman when she retires. Crazier things have happened.

Local Government Tort Claims and the Maryland Tort Claims Act

Our law firm does not handle police brutality cases. We have some experience handling the claims - not me but other lawyers here - and the injuries can be horrific. But, the criminally insane Maryland Local Government Tort Claims Act destroys the value of these cases. I offer as exhibit #549 the Maryland Court of Special Appeals opinion in Leake v. Johnson.

Just tailor made awful facts. Police arrested a man for public urination. A crime, I guess, but should you really be arrested for it? Well, this guy was, and he was handcuffed and put in a police van. The police did not put a seat belt on him and then gave him a wild ride in the paddy wagon. When they realized they had nearly killed the guy, they drove him to the hospital and still didn't fasten the guy in place. The man's spine became dislocated and fractured, causing him to become a quadriplegic. The paralysis occurred, according to plaintiffs' expert, as a result of pulling him out of the van after his initial injuries. He eventually died. Can you imagine? Public urination? I Googled around a little, looking for some back story. What really happened? What happened to the police officers? I can't find a single piece of good information. Crazy. A zillion people are protesting Trayvon Martin. Couldn't we borrow just a few of those people to look at the injustice that occurred here?

Continue reading "Maryland Local Governement Tort Claims Act: Another Injustice Passes Without Notice" »

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" »

There are five finalists for the dean of University of Baltimore School of Law that will be visiting campus beginning March 26. I will review these candidates for you and make my selection. To be fair, I have never met or even heard of any of these people. I've limited my education to a three minute Google search of the candidates.

• Nicholas Allard: A lawyer at political heavyweight, Patton Boggs, Allard is a former chief of staff to U.S. Sen. Daniel Patrick Moynihan, and former legal counsel to U.S. Sen. Edward M. Kennedy. While I'm not pretending I've ever heard of him, this is the celebrity pick. Moynihan was one of the few politicians in the last 50 years who was deeply respected by the left and the right and Kennedy was Kennedy. That's the big time. He is knee deep in pedigree, attending Princeton, Oxford, and Yale which, in a bizarre coincidence, are the same schools my children will be attending in 13 years (although they are certainly not going to law school). Here's my concern: is there a risk that hiring Allard is like hiring Michael Jordan to play baseball? Dean Closius came here with a history of turning around a law school. Allard would come with a history of being great at lots of things other than running a law school.

Continue reading "University of Baltimore Law School Dean Candidates" »

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

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

The Maryland Special Court of Appeals issued an opinion last week in a case that should be read by every Maryland personal injury lawyer who is putting up or cross examining expert witnesses at trial.

In Yiallouro v. Tolson, the plaintiff was injured in a car accident while in the scope of his employment. The case went to a Montgomery County jury who awarded the the victim and his wife $925,000.

After the verdict, the trial judge made two conclusions that blew up the jury's verdict. First, the judge concluded that he had made a mistake in letting plaintiffs' vocational rehabilitation expert testify about plaintiff's lost wages at trial - over $400,000 - because her opinions were speculative and without sufficient foundation. The trial judge also concluded that the pain and suffering damages were excessive and perhaps influenced by the testimony of the vocational rehabilitation expert.

This ruling put plaintiffs' lawyer into a box: trial judges have a lot of discretion to vacate verdicts that the court deems excessive. So he did the only thing he could do: try the case again. He even got the vocational rehabilitation expert back, getting her past a Frye/Reed hearing.

The defense lawyers - channeling their inner Bill Belichick - did something real smart: they learned from the first trial. Most trial lawyers will tell you that accident reconstruction experts usually are a waste of time. The jury draws it own conclusions and ignores the expert, according to the conventional wisdom.

The defense lawyers in this case ignored this conventional wisdom and brought an accident reconstruction expert to testify about his measurement of ground distances and his estimations of speed, stopping time, and stopping distance—including his assumptions of average reaction times. Defense verdict. Contributory negligence. Game over. Riches to rags. Thankfully for the plaintiffs, the Maryland Special Court of Appeals, in an opinion by Judge Albert J. Matricciani, reversed the trial court, finding that the expert had been appropriately qualified.

Future lost wage damage claims present challenges because there are no way to determine the future and, on some theoretical level, an expert who offers future lost wages is guessing. Still, Maryland law allows for damages for future lost wages, if for no other reason than the incredible injustice that would ensue if the law just dismissed future lost wage claims as speculative on their face.

So plaintiffs' lawyer used the three step game plan good accident attorneys use when claiming future lost wages. Get an expert opinion from an orthopedic doctor, have the voc rehab expert translate plaintiff's limitations into lost income, and then have the economist give the jury the real value of the lost stream of income.

Continue reading "New Maryland Expert Opinion Ruling" »

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 Special Appeals has overturned much of the $150 million dollar verdict that was awarded to Baltimore County residents whose properties were contaminated by a massive gasoline leak - 700 gallons of gasoline per day for 37 days - at an Exxon station. This verdict does not impact the second Exxon trial that was tried last year and lead to a $1.5 billion verdict (although if I were those plaintiffs, I would not start spending that money quite yet).

This is a 322 page opinion that contains tons of law: medical monitoring, Frye-Reed and other evidentiary issues, diminutive value, damage evaluations, emotional distress... and on and on. At some point I will might read this whole thing and try to break it down on this blog. But I can't pretend I did this last night so to get more, you need to read the opinion (I'm not sure this Baltimore Sun article will get you very far but it does give a good flavor of the dispute).

I'm assuming this case is heading to the Court of Appeals.

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" »

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

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

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

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

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

Continue reading "Jury Strikes Matter" »

Frank Kratovil, a former congressman of Maryland's 1st District, was appointed by Governor O'Malley to the District Court for Queen Anne’s County. Kratovil, a University of Baltimore School of Law graduate, was elected to Congress in 2008 but was unfortunately swept up in the Republican tidal wave of 2010 and lost to Andy Harris. Kratovil will make a great judge. Queen Anne's County is lucky to have him.

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)

The Maryland Daily Record is reporting that Governor O’Malley today named Robert N. “Bob” McDonald to the Maryland Court of Appeals. Soon to be Judge McDonald is the chief counsel of the Opinions, Advice and Legislation Division in the Office of the Maryland Attorney General where he has been for 15 years.

McDonald writes or edits all formal opinions of the Attorney General’s Office. I don't have occasion to read many Attorney General opinions and, even if I did, I don't think it would be a great lens to predict how McDonald will vote. Ultimately, the AG is making the call on those opinions.

There are a lot of 4-3 decisions by the Court of Appeals. I have no idea how this will impact that court and I doubt many people do.

I had this all wrong. I thought for sure O'Malley would pick Judge Grimm. I even gave odds on it. If he did not pick Grimm, I thought he would pick someone very young. I don't know how old McDonald is, but he graduated law school (from Harvard) in 1977. I also would have bet money that the choice would be a judge. Three strikes. (The take home lesson: don't handicap when you have no idea what you are talking about.)

O’Malley also elevated Baltimore City Circuit Court Judge Stuart Ross Berger to the intermediate Court of Special Appeals, succeeding Ellen L. Hollander, who took a seat on the U.S. District Court in Baltimore. This selection is not a surprise.