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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efilingWe have been hearing for some time about the Maryland Electronic Courts (MDEC) project that will eventually allow for electronic filings, allowing Maryland lawyers to get the same modern conveniences of electronic filing that we have enjoyed in federal court for quite some time. This type of integrated case management system — between circuit, district, and appellate courts – will really change the practice of law on an administrative level and will hopefully allow us to speed past some of the filing related bottlenecks we have in pushing cases forward.

No more paralegals and couriers jumping  into their cars and racing to the courthouse to meet filing deadlines.  We don’t do a ton of the “last minute rush” stuff here but it does happen occasionally.  I have the courier bills to prove it which always annoy me to no end. Anne Arundel County somehow got picked to kickoff the e-filing program. Starting Monday, September 15,2014, lawyers can register for e-filing to get ready for the MDEC’s launch in Anne Arundel County. When this does launch, and it won’t be fully operational for year, it is not going to be optional for lawyers.

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malpractice5One of the great selling points of caps in medical malpractice cases is that it encourages doctors to come to your state to practice.  Every state, particularly in jurisdictions with rural areas where access and availability to doctors is a prominent concern, want to attract a healthy supply of doctors to their state.  The thinking it is that doctors will flee to states where the litigation climate is more favorable to doctors.   A new study suggests this oft cited canard support tort reform is 100% true.  But not in a good way for patients.

A Notre Dame economist published a study titled “Medical Malpractice Reform, the Supply of Physicians, and Adverse Selection,” Journal of Law and Economics” that found that “when a county’s neighboring state passes a cap on noneconomic damages, the supply of physicians falls by 4 percent” in that county.”   Tort reform advocates are nodding their heads vigorously.

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The Maryland Court of  Special Appeals decided a chain reaction automobile tort case last week in Cooper v. Singleton that leaves me confused about the current state of Maryland law as to how we communicate our presumption of negligence rule to juries in rear-end collisions… and hoping the Maryland high court steps in to clear up the confusion.rearend

This case involved a five car chain reaction car crash in Montgomery County.Four cars had stopped at a red light when a fifth car, driven by the defendant, crashed into the fourth car. The cars hit each other moving forward as you would expect that they would all the way up to the first car.   It must have been a pretty hard hit, obviously.
The plaintiff in this case is car #2; the defendant is car #4. The case goes to trial before Judge Terrance McGann in Montgomery County.  After a three day trial, the defendant wins.
Wait!  What? How do you lose that case?
But I think there was a viable defense to this case. Defendant’s argued sudden incapacity because he suffered a grand mal seizure.  The defendant’s treating nuerologist testified that he was taking medication to control his seizures and it was reasonably believed that the medication would prevent future seizures.  But, unexpectedly, he suffered a seizure that left him incapacitated.

What is needed for sudden incapacity defense in Maryland

The Maryland Pattern Jury Instruction-Civil 18:9 sets forth the what is needed for defendant to make a sudden incapacity defense in Maryland:

A person has the duty to take reasonable actions to be sure that he or she can safely drive a motor vehicle. A failure to do so that results in a motor vehicle accident is evidence of negligence.
However, a person may defend by showing that there was a sudden and unforeseen incapacity that rendered him or her unable to avoid or prevent the accident causing the injury. Unforeseen incapacity is one that a reasonable person would not have any reason to anticipate.
This instruction is most likely what won the case for the defendant.  But this issue is not what the case is about.

Presumption of negligence in Maryland

There is one Court of Special Appeals case that gets all of the attention — and love — from plaintiffs’ attorneys in rear end accident cases: Andrade v. Housein.   Plaintiff’s counsel in this case sought a jury instruction consistent with the language of this case:
An evidentiary presumption of negligence arises where a motor vehicle is lawfully stopped on a highway awaiting for traffic to clear before an intersecting highway and that vehicle is suddenly struck from behind by another vehicle, resulting in personal injuries and property damage to the driver and the front vehicle. From that presumption, a trier of fact may reasonably infer negligence on the part of the driver of the following vehicle.
The presumption, however, is rebuttable. The procedural consequences, once a prima facie case is established, require that the person against whom the presumption is directed assume the burden of going forward with the evidence, but the burden of persuasion remains with the plaintiff.
This is not a pattern jury instruction.  But not all Maryland law is covered in a the pattern instructions.  This is certainly a clear statement of the law in Maryland.   In denying this instruction, Judge McGann said:
I’m [not] going to expect a jury to understand that theory. This is for lawyers. This is for judges. I’m not going to give that instruction. There’s no way they’re going to understand that … I don’t dispute it’s the law. It’s a question whether I instruct. Instructions are to help the jury.

Judge Moylan’s opinion

Judge Moylan, who graduated from college in 1952, continues to write opinion with a wit and style that entertains me as much as Judge Harrell does.  I try to write these posts in a way that entertains a bit but I’m a hack compared to Judge Moylan and I know it.  He also writes with the directness of a 21st century blogger which I really appreciate. He even uses exclamation points which is pretty risque for appellate opinions.  But I really disagree with the decision to affirm the trial judge in this case by limiting Andrade v. Housein to its ostensibly unique facts.   I think he wildly misses the forests for the trees.
First, the Court of Special Appeals refuses to concede that Andrade creates a rebuttable presumption in Maryland that if a stopped vehicle is rear ended, the rear-ending driver is negligent.  But even the trial judge agreed with that premise.  It comports with what many other states — Florida, Virginia, Rhode Island and New York which I found in a quick Google search — with good reason: you should not have to proof negligence when someone hits you in the rear while your vehicle is stopped.  Ask you average Marylander on the street — they assume this is the law.
The Court of Special Appeals says, echoing the trial judge, that the law is for lawyers and judges. What is the point of having a law if the jury cannot apply it?   The court slices and dices Andrade to the point where it could only be applied to the exact facts of that case.  Courts only do this when the want to distinguish a case.  Otherwise, broad principles of law articulated by prior opinions are always given their just due.
The court also argues that Maryland Rule 5-301 and the Maryland Code of Evidence states that a presumption in a civil case does not shift the burden of ultimate persuasion to the party against whom the presumption is directed.  I read the court’s long analysis of this questions of burden of proof versus burden of persuasion.   I’ll concede I have spend zero time focusing on this issue.  I get the impression the parties to the case did not either.  But let’s no confuse the issue.  Plaintiff’s lawyers are asking the judge to tell the jury what the law is.
Finally, the court’s opinion argues in what can only be described a “dicta squared” that the plaintiff was better off not have the instruction.
The plaintiff suffered no prejudice from Judge McGann’s disinclination to give the requested supplemental instruction based on Andrade v. Housein. Indeed, had Judge McGann given the instruction, it could have been fatal to the plaintiff’s cause. It would have told the jury that the burden of ultimate persuasion, that the plaintiff wanted to be switched to the defendant, “remains with the plaintiff.” Silence on the subject, from the plaintiff’s point of view, was the exact opposite of prejudice.  It was a windfall.
We can quickly dispense of the “it was a windfall” argument.  Why do I know this? Every single plaintiffs’ attorney trying this case would have asked for the exact same instruction.

What we take from this case

First, I think this case is a loser for the plaintiff no matter what happens.  Granted, I don’t know all of the facts so I’m talking a little bit outside of school.  But you have the defendant’s treating neurologist standing behind him and saying he never could have expected to have this seizure.   If I’m on the jury, I’m going to have to swallow and say this guy is not negligent.  I wish there was some way to find the insurance company responsible in a case like this.  (I’ll bet $20 bucks it was State Farm.)  But there is not.
This case does not kill Andrade v. Housein.  I don’t think judges are going to start giving directed verdicts in rear end accident cases where the plaintiff has no idea what happened.     What it does is give judges the option of  not telling  juries what the law in Maryland with respect to this presumption.  This is the wrong path and the Maryland Court of Appeals ought to clean it up by making clear and unambiguous law about just how the jury instructions should read.
I can’t stand all of these unnecessary battles with trial judges over areas of law that should be crystal clear. On some level, I care more about someone just giving us a clear law than what the law is.  Now the path is all muddy which means it is going to be whatever the judge wants to do and we are going to have to research and write to battle over an issue that should already be written in stone.
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hipaaOne hot button issue in Maryland medical malpractice cases today is the circumstances under which defense lawyers can speak to Plaintiff’s treating doctor.  For years, this was not an issue.  If a defense lawyer wanted to talk to a treating doctor, she would just pick up the phone and call.  This was a powerful tool for malpractice defense lawyers because (1) you always want to know what a treating doctor — or any witness for that matter — is going to say before the doctor testifies, and (2) it gives the defense lawyer a chance to participate in shaping the doctor’s testimony.

HIPAA changed all of this in 1996.   HIPAA requires that a doctor “may disclose protected health information in the course of any judicial or administrative proceeding [i]n response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order.”  45 C.F.R. § 164.512(e)(1)(i).

So that settles it, right?   In most states, yes.   If this is current, 38 states prohibit ex parte conduct and another six permit informal interviews with significant restrictions.

Why This Fight Continues in Maryland

Yet in Maryland, the battle still rages.  Defense lawyers argue that under Maryland law once a patient chooses to place his or her medical care and treatment at issue in a civil action filed against a health care provider, all health care providers shall disclose all information in medical records and/or health related information to another health care provider’s legal counsel.   Specifically, Md. Code Health Gen. § 4-306(b)(3) provides a statutory right to ex parte communications.  Actually,  I think the statute provides only for the disclosure of written medical records, as they are defined in Md. Code Health Gen. § 4-301(h).

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depressed manIn Young v. Swiney, the U.S. District Court of Maryland was presented with an interesting, albeit depressing question: Can a suicide, two years after a truck crash, be causally related to the accident?

The Facts

There was no dispute as to liability.  The defendant trucking company sought summary judgment on plaintiffs’ wrongful death claim, alleging that there was no evidence that a reasonable jury could rely upon to establish this suicide, two years after the accident, could be causally related to the crash.   Defendant also sought summary judgment for economic losses after the suicide claiming that his death was, “a superseding and/or intervening cause” of his death that acts as a bar to future economic losses.   As creepy as that argument is, it does logically follow that that if the crash did not cause the suicide than the economic losses should, as a matter of law, be terminated as well.

Sometimes, the injuries from a motor vehicle collision can set a life that is on course, very much off course.  I’ve seen it happen too many times.  As plaintiffs’ lawyers, we often forget we are seeing people at possibly the worst moment of their lives.  The decedent’s life in this case fell right along this path.  His life got turned upside down when he was rear ended by defendant’s eighteen-wheel tractor trailer truck in Cecil County back in 2010.   Among his injuries, notably for what happened later, was a head injury.  He could not go back to work and got fired from his job because of the accident, because Maryland law inexplicably makes getting hurt in an accident a fireable offense.

He started seeing a psychologist after he lost his job.  He told his the psychologist that he was extremely depressed from the accident.  His temper flared easily, a common side effect of even a mild traumatic brain injury, to the point where his wife and two daughters had moved to Florida for a time to get out of his path.   Eventually, he killed himself.

Court’s Ruling

Clearly, courts are loathe to jump, wary of “such and such caused my suicide” cases.  The plaintiffs here would have close to zero chance of collecting a life insurance policy that claimed the accident was the true cause of the death.   There is a view, as the court pointed out, that suicide is a common law crime and bars any wrongful death claim.

Thankfully, Maryland law has not adopted this rule and utilizes the more flexible rule that it is a question of proximate cause given all of the facts and circumstances.   In this case, the plaintiffs’ are proffering a medical expert to opine that it is more likely than not that had this accident not occurred, this man would not have committed suicide.

My Take

Much earlier in my career, I was involved in the SSRI litigation involving claims that antidepressants were paradoxically causing some people to commit suicide.   The one thing I learned from meeting with some of the leading experts on antidepressants and suicide throughout the country is that suicide is a very complicated thing.   These are tough cases and plaintiffs here have not won — they just made it past summary judgment.  The trucking company is going to pick through this guy’s life and explain all of the other reasons why this accident was not the reason he committed suicide.

Still, in the final analysis, it boils down to this: would this man have committed suicide if this accident had not happened?  Granted, I know little about this case.  But you have to guess that with the man’s treating psychologist testifying that this is the driving cause, plaintiffs have more than just a puncher’s chance.

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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.

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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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complaint

Update: Stop the presses.  This rule has already been repealed.

We 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.