Ron Miller is a Maryland personal injury lawyer who focuses on serious injury and wrongful death cases involving motor vehicle collisions, medical malpractice, and products and premises liability. This site is designed to provide practical information to both injury victims and plaintiffs' attorneys in the Baltimore-Washington area who want to achieve a fair settlement or verdict. If you are looking for counsel for your case, call him at 410-553-6000

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shutterstock_97357133In Valentine-Bowers v. Retina Group of Washington, a new medical malpractice case decided by the Maryland Court of Special Appeals,  the plaintiff alleged that her physician failed to monitor a problem with her eye that caused her to lose vision in that eye.  It is a serious injury for a young woman.  But this case is not about the underlying merits of the claim, it is about the the things you have to do to get a medical negligence claim to a jury.

The case starts with the defendant serving discovery on the plaintiff.  The plaintiff did not respond in a timely fashion.  Judge Douglas R. M. Nazarian, a relative newcomer to the court, acknowledged this failure is commonplace.

Her failure to comply with the deadline is unremarkable—parties routinely miss this deadline and litigators know that absolute compliance is not always possible (although they do, and should, expect at least a request for an extension and a good faith deadline in return).

But, obviously, that is not the end.  Two months pass.  Nothing.  So defense counsel sent the usual “c’mon” letter. Then another one.  Then a motion to compel. Then a deposition notice, and she does not appear.  Plaintiff’s counsel really does not respond to the letters or the motion.

What is going on here?  I don’t know.  But Plaintiff’s counsel said that the plaintiff, herself, is to blame by failing to stay in contact with the lawyer.

Let’s assume that is true as Judge Nazarian’s opinion does.  It puts plaintiff’s counsel in a tough spot, to be sure.  I have had clients disappear after I had sent a demand package to the insurance company.   Now, if I come clean with the insurance company and say I can’t find my client, that is a sure tell to them that my client is unlikely to make it through the litigation process.   So what do I do?  I just ignore their calls until I find my client.  It makes me feel like an unprofessional jerk but I don’t really think I have a choice.

But this is a far cry from dealing with an absent client in litigation where the statute of limitations has passed.   Now let’s admit, this opinion does not give us the whole story.  But I think absent compelling circumstances, you can’t just ignore defense counsel in hopes it goes away.  I think the first thing to do is try to get relief from defense counsel.   You can’t just ignore motions and deposition notices.  Second, I think you have to run to the court and say, “Can I get a little latitude here while I try to track down the client?”  Even filing a motion to withdrawal from the case would slow the train down.

In any event, eventually she gets back in touch and they get unexecuted answers to discovery out on the deadline imposed by the court and executed responses a few days later.  Now, I would think that would do it in most cases.   But the P.G. County Circuit Court judge saw it different.   The judge (I’m not sure who it was) correctly applied the five factors articulated by the Court of Special Appeals in Hossainkhail v. Gebrehiwot:

  1. whether the disclosure violation was technical or substantial;
  2. the timing of the ultimate disclosure;
  3. the reason, if any, for the violation;
  4. the degree of prejudice to the parties respectively offering and opposing the evidence;
  5. whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.

These are good rules and both the trial court and later Judge Nazarian dutifully go through these factors as Maryland law requires.   But I don’t think anyone really cares all that much about the factor.  What it boils down to is if the plaintiff completely ignores the discovery process and then finally gets its act together a few days after the court imposed deadline, should that be enough to keep the case alive.  I can see where the court would be more than furious.  I really do.  But I can’t see not giving the plaintiff a chance given that there is no real prejudice.  Both the trial court and the Court of Special Appeals believed that the delay itself is prejudice.  I don’t think they would take the position in a different context.  It is just like how someone you like can say something and it is fine and someone who annoys you says the exact same thing and it drives you mad.  But if we are going to analyze facts honestly, we have to admit that there is no real prejudice here.  I think that should be the touchstone in the decision.  Real definable prejudice, not the speculative prejudice of “memories fade” over time so there could be prejudice.

I also think a double standard applies here.  I don’t think a court would likely give a plaintiff summary judgment under the same exact facts.   Judges loathe to tell defendants that they cannot put on a defense, no matter how bad they screw up in discovery.  I don’t disagree with this really.   It does seem unfair in a way to impose liability on a party because their lawyers royally screwed up their case.  But the same reservations should also apply to dismissing someone’s effort at getting justice.   Here, a part of the problem was the woman was not cooperating with her attorney.  But she just lost vision in her eye.  We are not catching her at a great time in her life.  Let’s cut her a little slack.

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skypeMaryland courtrooms are slow keeping up with the times.  This is not an altogether bad thing.  What happens in the courtroom matters and we should probably let society work out the kinks of technology and understand all of the potential unintended consequences before our judicial system leaps into the next big thing.

That said, geez.  It is 2014.  Can we get wi-fi in the courtrooms?  I can’t even get my phone on the Internet in some courthouses, like P.G. County Circuit Court  not to name any names.  We can e-file pleadings in federal court now and will be able to in state court at some point.  But we are about 15 years behind the curve.  Let’s not let the world get a full generation lead in technology over our courts.

One of the big issues that is increasingly getting attention is witnesses testifying at trial without actually showing up at trial.  Skype is the primary method that gets talked about, probably because its low cost makes it the most desirable.

Continue reading →

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scales2Our Memorial Day weekend got a good kickoff with a $5.2 million verdict in Baltimore City in a emergency room misdiagnosis medical malpractice case.

I can’t start out the facts of this case without pointing out how amazing our client and his family were and are.  Just a great loyal family.  They came in and out of the courtroom during the two week trial, including  six of his seven siblings.   His elderly parents were there for the closing too, along with one of his nieces.    I have four small kids.  When they are older, I want us to all be as close as that family.   They are great people that love each other and they love God.  Which means they have 95% of life covered when they wake up in the morning.

Our client was an armed security guard at a federal building.  He was walking over a barrier that was lying down in the ground when a co-worker activated the barrier. He was hoisted up into the air, twisting his knee and trapping him in the barrier.  He dislocated his knee, tearing almost every ligament and tendon.   His knee reduced before he arrived at the emergency room.  His ER visit was only about 2 hours long where he had a series of X-rays as the only intervention.  While he was there, the PA suspected a knee dislocation, but never told her supervising doctor.   He was discharged with a knee sprain diagnosis.   Two days later he returned to ER with no pulses in his foot, and ended up with an above the knee amputation.

The physician’s assistant and the ER doctor breached the standard of care by failing to rule out an injury to his popliteal artery.  One in three knee dislocations result in an injury to this artery.  If you don’t catch the injury within the 6-8 hour window, you have a 90% amputation rate.   If they had done a vascular assessment, they would have easily discovered the injury.  He could have been re-vascularized and his leg would have survived.   The bad guys claimed that since he had normal pulses in his leg throughout the 2 hours he was there and they had no reason to believe that he injured his artery.  They also tried to defend the case on the theory that he did not give an adequate history for them to have suspected a knee dislocation.  The physician’s assistant said that the knee dislocation was only in her differential diagnosis and that she ruled it out after the X-rays came back normal (even though you cannot rule out a dislocation that reduced simply by looking at the X-rays).   There was also a goofy causation argument that the injury to his artery actually occurred after he was discharged.  That might work in some cases when the jury is eager to go down an Oliver Stone path.  But it was the wrong path with this client.

Our client is an amazing guy.  He returned to work as an armed security officer after almost two years of rehab and training to get him back in shape for the job.  He is very independent and considers himself “lucky” to have survived this.  He refuses to call or consider himself disabled or handicapped.  He was a difficult witness to pull pain and suffering details out of because of his refusal to let this injury defeat him (but the day-in-the-life video helped).  He will not use handicap parking spaces and he never complains.  He was extremely athletic before the injury and was an avid swimmer.   He has only been to the pool four times since this incident occurred, since he is afraid of the wet surfaces.

Our verdict was $5.2 million:

  • $216,000 past medical bills
  • $601,000 for further prosthesis
  • $667,000 for further lost wages (he could no longer work his second job)
  • $35,000 in lost household services
  • $3,700,000 in pain and suffering damages

Laura Zois and Rod Gaston tried the case.  Samantha Harbeson did the PowerPoint presentations and just kept the whole trial together as she always does.

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complaintWe have a new rule in Maryland: Rule 1-322.2:

Rule 1-322.2 shall take effect and apply to all actions commenced on or after July 1, 2014, and insofar as practicable to all actions then pending.

(a) Certificate Required. Every pleading or paper filed in an action on or after July 1, 2014 shall contain either:

(1) a certificate of compliance with Rule 1-322.1 that is signed by an individual who is (A) the party filing it or an attorney for the party, or (B) if the paper is filed by a nonparty, the person filing it or the person’s attorney, employee, or agent; or

(2) in an affected action under Title 20 of these Rules, a certificate that complies with Rule 20-201 (f)(1)(B).

Cross reference: For the definition of “affected action,” see Rule 20-101.

(b) Action by Clerk. The clerk shall not accept for filing any pleading or other paper requiring a certificate under section (a) of this Rule unless the pleading or paper contains the certificate.

Source: This Rule is new.

Why the Rule?

Besides the death of more trees,  this new rule requires that all pleadings with the court  make every effort to keep out Social Security numbers and drivers’ license numbers to protect the privacy of the person identified and, presumably,  limit identify theft from court pleadings.   That is what Maryland Rule 1-322.1 is all about.  

Personally, I think we are all a little too crazed about these privacy concerns.  I know I’m in the minority but I don’t mind the NSA listening to my calls or tracking my movements.  Have at it.  But people are concerned and we should be doing what we can to make sure to limit the pain they feel because they choose to avail themselves to the civil justice system.

Turmoil That Is Almost Sure to Ensue

Lawyers job is, in part, to help clients navigate around the rules.   There is just one catch.  Many lawyers do not know the rules and they specifically do not know new rules.  A perfect example is the ad damnum rule that stopped the madness of  people filing small soft tissue injury lawsuits for $10 million and the media making a federal case out of it.  Few Maryland lawyers know about it so we continue to get media reports of attorneys filing for millions of dollars.

So the question becomes just how tough the court (or the clerk’s office) is going to be.  Are they going to kick back pleadings that do not comply with this rule or are they just going to send out a nastygram?   The biggest concerns are complaints and answer to complaints.  Actually, the only real concern is complaints.  Technically, you are in default if the court were to deny the filing of your answer for failure to comply.   But that default will get sorted out.   The statute of limitations is another matter.  Too many personal injury lawyers believe that claims should be filed on the eve of the limitations deadline.   In a bizarre coincidence, these are the same attorneys that will not know about this new rule.   So how courts approach this is going to determine how many new legal malpractice lawsuits get filed in Maryland because lawyers did not know this rule.

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shutterstock_73907023The average verdict in a Maryland auto tort case is around $12,000.

How can this be?  I’ll tell you how it be: attorneys filing cases in Circuit Court that just should not be going in front of a jury.

These are my thoughts after reading about a recent jury verdict in Anne Arundel County.  It was a garden variety auto accident case.  The 21 year-old plaintiff, a college student from Pennsylvania, was driving with his mother in the left lane at a speed of 55 to 60 mph when they got into a collision with another vehicle.   Plaintiff did what a passenger should do in this case where the cause of the crash is in dispute.  He sued both drivers.

So the case went to trial on the following facts:

  • Plaintiff’s medical expert was a chiropractor
  • There was no objective injury – pure soft tissue injuries
  • Plaintiff had $9,260 in chiropractor bills
  • Plaintiff was suing his mother (Allstate) and another defendant (State Farm)
  • The case was in Anne Arundel County, a relatively conservative venue

What could possibly go wrong?  All that is missing is a preexisting injury to make for the perfect storm.

Why These Facts Make for an Impossible Climb

This case apparently went to trial under the premise that this 21 year-old was a competitive swimmer who can no longer compete because of the injuries from this accident.   That might get you a foot in the door but not on these facts. First, the young man was a college student in Pennsylvania.  His story is that he and his mother were driving to Johns Hopkins for an interview with the swim team.

First, if swimming is a big priority in your life, and you get into an accident that keeps you from swimming at the level you were before the crash, shouldn’t you be seeing a medical doctor and shouldn’t that doctor come to trial to testify as the relationship between the accident and his ability to swim?   Does anyone in this situation bypass a medical doctor and ring up nearly $10,000 in chiropractic bills?

Moreover, while it might have been better explained at trial then in this jury report,  it does not make a lot of factual sense either,   If he is a college student in Pennsylvania and he is 21 years-old, why is he traveling to Hopkins to meet with their swim team.

The other facts I listed above are killer.  Chiropractors can do some great work.  But if that is all in the way of medical testimony at trial in a case where the plaintiff is claiming a permanent injury, then I think you have lost before you started.  It is also hard to defend $9,260 in chiropractor bills.

Of course, there is also the suing the mom aspect of the whole case.  Sometimes, it can work to your advantage because it is almost a tell to the jury that the mother must have auto insurance and, for some reasons the jurors can’t figure out, this fact is being kept from them by the lawyers and the judge.  But that advantage disappears in a small case like this, I think, and the focus shifts to how weird the whole thing is.

So what happened?  The plaintiff has to win the case.  He is a passenger.  The jury spent 45 minutes — probably 20 of which was spent picking a foreman – to find his mother negligent and the State Farm driver not responsible.  The jury’s award was a paltry $2,885, probably less than the out-of-pocket costs to bring the case to trial.

State Farm had named Robert Riederman, a Baltimore orthopedist and frequent flyer insurance defense expert, as a witness to testify at trial.  But, smartly, they knew calling him to testify could be the path to snatching defeat from the jaws of victory.

What Is the Take Home Message?

The take home message to me is that if you take a soft tissue injury case in front of fairly conservative jury, you are going to get a bad result 95% of the time unless you have some compelling facts to move the jurors to provide real compensation.   If you know on your best day that you cannot do this, you are probably better off keeping your case in District Court.

The other lesson here is that statistics that show that the median or average verdict in an auto tort case in Maryland are very low are extremely misleading.   Cases like this junk up the pool of cases that go to trial, sending those averages far south of what they would be if counsel make better choices in which cases they take to trial.  That said, even wise counsel ends of up taking dogs like this case to trial now and again.  Why?  Because if a lawyer is doing the job in the right way, the clients are the ones driving the train and making the decisions, as opposed to their counsel shoving their decision down their throats.  If a client makes an ill advised choice to try a case, you have to either refer the case to someone else or see the case though.

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judgeIn Kassem v. Gaddy, the Michigan Court of Appeals was faced with a simple question: can you scare a man to death?

Facts of Kassem

This is an odd case.  An 85 year-old man crashed into the back of a tractor trailer.   It sounds like the man was at fault for the accident.  But the police accident reconstructionist placed the blame on the truck driver.

Why?  The expert found that the trucker did not place his trailer’s outer bumper in the “down” position.   So in the up position, a trailing driver on a wet, cold night would not be able to see any taillights until it was too late.

It was not a serious accident.  There was no evidence of physical injuries.  But the elderly man died of a cardiac arrhythmia that the medical examiner concluded, without looking at the body, was from coronary artery disease.  Presumably, he based this on the fact that the man was 85.

Daubert Hearing

But the man’s family brought a wrongful death lawsuit with a medical expert who concluded that the cause of death was by severe fright and shock from the collision.  Failing to take judicial notice of the “you scare me to death” axiom, the skeptical trial judge ordered a Daubert hearing.  He really could have just googled the question and gone to “How Stuff Works“.   But everyone loves a Daubert/Reed-Frye hearing.

Plaintiff showed up to the hearing armed to the teeth with medical evidence and testimony to support the conclusion that  a sudden surge of  blood pressure and outpouring of adrenalin and such was the trigger in this case.  The trial judge ignored it all and granted summary judgment.

Michigan Court of Appeals Ruling

The Court of Appeals found that plaintiff’s medical evidence has scientific validity and that a reasonable jury could find that the truck crash was a substantial contributing cause to the man’s death.  The court found that the trial judge ignored the plaintiff’s evidence.  Without directly saying so, the court seems to say that not only could a reasonable fact finder conclude the man was scared to death, but that it is also the most logical conclusion.

Dr. Spitz grounded this conclusion on the principles and methods customarily used in forensic pathology, including review of the medical and police records and consideration of the testimony of witnesses. In other words, Dr. Spitz premised his conclusion solely on the objective record facts, accepting all of them as relevant and accurate.  We do not find this method wanting, particularly in light of Dr. Al-Saraf’s  [the doctor above who found that it was basically a heart attack because the man was old] acknowledgment that Dr. Spitz’s causation theory could explain Kassem’s death. Nor do we discern any evidence that Dr. Spitz unreliably applied forensic methods to the facts of the case. The medical literature Dr. Spitz supplied to the court demonstrates that consistent with common wisdom, acute emotional stress can cause sudden cardiac death.  Defendants produced no literature to the contrary. Thus, no evidence contradicted that Dr. Spitz’s opinion derived from a methodology customarily used by forensic pathologists, who regularly opine regarding cause of death, and that Dr. Spitz reasonably applied the methodology to the facts at hand.

The appellate court was blunt in calling out the trial judge, saying that he was basically acting like the trier of fact instead of determining what a reasonable jury could find.  John Roberts famously said that a judge just calls the balls and strikes.  But the bromide of judges just objectively resolving questions of fact is a largely a fairy tale.

That is just an impossible task for even the best of judges.  It is hard for judges to remain above the fray and merely provide an independent and impartial assessment of the law to be applied.  Judges are human, they have this power, and most want to use it to push the ball towards the outcome they want.  This is not a good thing.

But it is what it is and it is tolerable within certain limits.  But some judges, and I’m not saying this one because we don’t have enough information,  can’t stand the idea that the jury has the real power and they feel compelled in interject themselves into the case to push the trial towards a desired outcome.  While it could be my paranoia, I feel like these powers are rarely used to advocate for plaintiffs.

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leadpaintThe Maryland Court of Appeals just affirmed a lead paint verdict against the Baltimore Housing Authority.  This is yet another case where a governmental entity sought refuge of the Local Government Tort Claims Act.   Thankfully, the Baltimore Housing Authority could not avail causing brain damage to a child via this loophole, at least not in this case.

Facts of Case

The plaintiff lived in a Baltimore Housing authority for two years after her birth in 1995.   She was exposed, she alleged, to chipping and peeling lead based paint.  Her lead level was 13 mcg/dl.  When I defended these cases in the ’90s, we would have rolled our heads at that number.  Now we know better.   A level like this can cause real injury and can bring a large jury verdict in Baltimore.

The story from here is familiar.  The plaintiff’s mom noticed classic lead-related injuries manifested themselves early: attention issues,  delays in learning to read, and behavioral problems.  Plaintiff’s experts testified that she lost 5-7 IQ points.

The Baltimore Housing Authority put on its usual witnesses – Patrick Connor, Joseph Scheller, Joel Morse, etc. – to argue that the girl was not injured by lead-based paint.

The jury did not buy in,  awarding $160,000 in future lost wages (which seems low) and $1.1 million in non-economic damages. Under Maryland’s cap for non-economic damages, this portion of the award was reduced to $530,000.  Why so low?  The injuries occurred in 1995 when the cap was much lower. Continue reading →

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Tiger Woods "easy" back surgery hurts some tort victims

Tiger Woods “easy” back surgery hurts some tort victims

Tiger Woods announced today that he has undergone successful back surgery and expects to be back playing golf this summer.  Good for him. This is bad news for golf fans who passionately root for or against Tiger.  But it is also bad for personal injury victims who are bringing a back injury claim in front of a jury.  Why?  Because juries get constant evidence from athletes that back injuries and back surgery is not a big deal.  Some will equate Tiger Woods to 58 year-old Mary Smith when she has a discectomy and fusion for a herniated disc after a car accident.

Why Tiger’s Surgery and Expected Recovery Misleads Juries

There are a number of reasons why the comparison is unfair.  First, not all back injuries are created the same.  Tiger had a microdiscectomy for a pinched nerve.  That is light years from, say, a herniated disc suffered by great trauma.  But some jurors view back surgery as back surgery regardless of the severity of the injury. Second, Tiger is a professional athlete who dedicates his life to keeping his body in the best possible shape.  Tiger won’t even share his workout secrets.   He will also get stunning medical care.  The best doctors and ridiculous amounts of medical attention you and I would never see. Finally, Tiger’s getting surgery in the first place is probably something you and I never would have gotten in the first place.  Why?  First, we are not violently swinging a golf club at pretty much the speed of light.   So I can probably still workout and work around the same injury that Tiger needs to get taken care of so he can perform on a world class level. Continue reading →

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jurorsIn Pearson v. State, the Maryland Court of Appeals earlier this month addressed the important question of which voir dire questions, if requested, must be asked of prospective jurors.  Why am I writing about it?   It might have important ramifications on civil personal injury jury cases.

The facts of this case are simply.  Pearson is  indicted and convicted for a narcotics offense.  On appeal, he argues that he has been denied a fair trial because he was not permitted to ask certain questions during voir dire.  Pearson claims that the trial court committed reversible error when it refused to ask the venire panel:

  1. if any member of the panel, or any member’s family, friend, or acquaintance had ever been the victim of a crime; and
  2.  if any member of the panel was ever a member of a law-enforcement agency or “kn[e]w anyone who is employed” by a law-enforcement agency.   Both requests had been denied by the trial court.
  3. Do any of you have strong feelings about [the crime with which the defendant is charged]?

Maryland only allows questions to be presented during voir dire if the question is “reasonably likely to reveal specific cause for disqualification.”  Maryland only recognizes two specific instances that comprise specific cause for disqualification: (1) a statute disqualifies a prospective juror or (2) a collateral matter is reasonably liable to have “undue influence over a prospective juror.”  Under the second category, which this case addressed, a matter has undue influence if it addresses biases that create a “demonstrably strong correlation” with a mental or emotional state that will improperly influence a juror’s decisions. Continue reading →

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UBThe U.S. News and World Report rankings came out today.   It was not a good day for the University of Baltimore School of Law: ranked #135 among U.S. law schools.

Of course, this post is going to assume that U.S. News & World Report is relevant to anything.   When was the last time you paid a moments attention to this magazine that did not involve looking a school rankings.  The answer is probably 10 years ago.  But, it certainly is because people care about it.  But whether it is a reflection of quality is anyone’s guess.

What Happened?

I don’t know.  You have to appreciate that the University of Baltimore School of Law has been on a crazy roll in recent years.   After falling and falling, its ranking with U.S News had been soaring higher each year.   But the real kicker is the new building they opened last year.  The old UB was a rat hole.  We can say that now. It really was.  The new building is just stunning.  It has anything you could ever want to teach or to receive an education in, and do it in style.  Even Above the Law, which has snarky commentary on the color of the sky, had good things to say about the design of the building.

So what happened? Well one thing that happened is Dean Philip J. Closius left.  Why?  I never fully understood or bothered to get my mind around all of the details.  But I think I can distill it down: money and ego.   It seems that most everyone involved had way too much of the latter, including Deal Closius himself.  But I’ll tell you what the guy could do: raise money and push our rankings with U.S. News north.   Now, was our ranking all that high?  No.  But the key was we were moving in the right direction and people were getting excited.  We peaked at #113 two years ago which was after Closius left but probably reflecting his work.    Now we have back-to-back falls in the wrong direction: #134 last year and #135 this year.

I was depressed when he left, so much so that I offered to donate $10,000 to UB if they brought him back. But the bridge had been burned on both sides and that was that.

Now we have a new dean at U.B. Ronald Weich, a former Assistant Attorney General for Legislative Affairs at the Department of Justice.   While I’m hardly an inside player as someone on the adjunct facility who had never even met the new dean, I do talk to students and other professors.  By all accounts that I have heard, Dean Weich is up to the task.  He smart, he cares about what he is doing, and he is determined for the school to succeed.  He also wisely is playing to UB’s strength: teaching practical skills that get students ready for the bar exam and for the real world.

But I have to think that the transition alone – having to have an interim dean and getting the new guy up to speed – had a cost that we are paying for now.

Certainly, we can get back on the right path and we can use this building to market the school in a way that never could have been done before, that will bring in out-of-state students and just generally increase the quality of students coming into the school.  But we really have to hustle at this point and overcome this hit and get the momentum point back in our direction.