Maryland Injury Lawyer Blog

Metro Verdicts Monthly graph this month is the median verdict and settlement value of wrist fracture cases over the last 22 years. The average settlement/verdict in Washington D.C. is $105,000. Maryland is less than half that: $50,000. The average settlement/verdict in a wrist fracture case in Virginia is $52,583.

Maryland jury verdicts in series personal injury cases are generally higher in the District of Columbia. Again, I don't know the methodology of how MVM gets its numbers. If they rely on personal injury lawyers reporting that data - which I do not think they do - then that could possibly skew the data as could a lot of other things that only a statistician could find. Particularly since Metro Verdicts includes settlements in their statistics, it is hard not to suspect that data could be skewed. The only way auto accident settlements (as opposed to malpractice settlements that have to be reported) get on the radar screen is if you call Metro Verdicts and tell them you settled a case. But there are few sources of verdict and settlement statistics in personal injury cases so it is hard not to find data like this interesting. I would love to see a jurisdiction comparison of Baltimore City and all of the counties in Maryland.

Michigan Lawyers Weekly published an article titled “Populist juries side with plaintiffs.” (No web link available.)

This title got my attention because I have been speculating about the impact our economic troubles are having on jury verdicts. The thesis of the article appears to be that juries are more likely to side with plaintiffs in this economy, but are less likely to give large damage verdicts. Although, it quotes one lawyer saying he got a larger verdict than he asked for, which he attributed to the economy.

Unfortunately, the article is just anecdotes from plaintiffs’ personal injury lawyers who have recently received good verdicts. This is not exactly the target audience for a fair look at the issue. The lack of hard evidence is not the fault of Michigan Lawyers Weekly. The economy really turned in October with the meltdown in the financial markets, and there is just not a lot of data since then that has been collected and analyzed.

Continue reading "Personal Injury Jury Verdicts and the Recession" »

The Maryland Daily Record reports that a Frederick County jury awarded nearly $4 million to a boy in a malpractice lawsuit claiming the child’s cerebral palsy was caused by his doctors’ failure to properly monitor his heartbeat before delivery. The jury’s verdict was against an ER doctor and an obstetrician. Three nurses, a third doctor - another ER doctor - and Frederick Memorial Hospital were not found liable.

The nature of the claims for at least two of the doctors (I’m not sure of the claims against the third who was not held responsible) that were allegedly a substantial contributing factor in the child’s cerebral palsy were different. The emergency room doctor was ostensibly told of the concern about the mother at 5:45 a.m. but did not see or evaluate her. The obstetrician allegedly was told about the concerns with the patient at 7:00 a.m. but did not see her or order that she be sent to labor and delivery.

Yet all three doctors were represented by the same malpractice lawyer. As I have written before, Defendants’ lawyers are moths to the flame of presenting a united front against Plaintiffs. But I would think that the obstetrician would have liked to say, “No one did anything wrong but, sure, I relied on part on the fact that I assumed the ER doctor would have looked at the problem if there were immediate concerns.”

Now, that exact defense might be inapplicable to the facts of this malpractice case but some derivative version of that defense is almost invariably applicable when a medical malpractice lawsuit makes allegations against different doctors. Again, I do not know all of facts and there could certainly be other facts present in this cerebral palsy case that would make one malpractice lawyer handling the claims of all three doctors an understandable strategy. This is obviously Monday morning quarterbacking after a bad medical malpractice verdict - which is incredibly easy to do. The malpractice lawyer who represented the doctors is considered one of the best medical malpractice lawyers in Maryland. But even if there are facts I don't know that would change my analysis in this case, the principle I am talking about still holds true: defendants are almost invariably better off having their own lawyer to at least give them the easy option of jumping ship on the "we are all in this together" boat.

Continue reading "Cerebral Palsy Verdict in Frederick" »

Metro Verdicts Monthly graph this month is the median verdict and settlement value of “vision loss” personal injury cases. Omitting defense verdicts, the average settlement/verdict in Washington D.C. is $500,000. What do you think the average is in Maryland? Somehow, I doubt you would guess anything in the neighborhood or even the zip code of $192,700. The difference in these two numbers is inexplicable. The average settlement/verdict in vision loss cases in Virginia is $450,000.

I suspect something is wrong with this analysis because I really don’t think Virginia juries value vision loss twice as much as Maryland juries. I’d pay extra if they would include in an appendix the data they used for these graphs.

Lawyers handling wrongful death cases encounter an awful argument from defense lawyers in cases where the victim is 65 years-old and older: you have to discount the value of your claim because the victim was old, anyway. The argument is so callous no lawyer would directly make this argument to a jury, especially in a jurisdiction like Maryland where there is a meaningful cap on wrongful death and survival action damages.

The “victim was old anyway” argument is offensive and cold…but not, relatively speaking, entirely untrue. And once you get past how awful it sounds, the differences do make sense. The money damages awarded in a wrongful death claim with a young victim having 70 more years of expected life should be higher than with an older victim having only 20 more years of expected life because the victim's family will be without them longer and the victim missed out on a lot more life.

The reason why the argument is so offensive is not the underlying premise – older victims get less – but the “How big was the loss, really?” way in which it is pitched. The reality is that juries still place values on these losses. According to Metro Verdicts Monthly, juries have over the last 22 years awarded an average verdict in Maryland wrongful death cases of $1,337,824 involving victims 65 and older. Washington, D.C.’s average is slightly higher, $1,443,818. Incredibly, and this really underscores jurisdictional differences, Virginia’s average verdict in wrongful death cases involving victims 65 and over is an abysmal $685,535, less than half that of the District of Columbia.

Continue reading "Value of Wrongful Death Cases in Maryland Where Victims Is 65 or Older" »

In wrongful death cases, the size of jury verdicts has always tilted in favor of men, which is why many have argued that caps on non economic damages are sexually discriminatory. In a new study, Jury Verdict Research offers a very different conclusion when comparing compensation in wrongful death claims between minor females and minor males. The median wrongful death of minor females is $1,912,349 but the median award for the wrongful death of minor males is $1,500,000. This gap increases when looking at average wrongful death verdicts. Minor females average $8,648,036 in wrongful death cases compared to an average of $3,173,360 for males.

I can’t explain this data or begin to offer a reason for it.

Chantix sales in this country have fallen 49% percent, Pfizer reported last week. However, internationally, sales jumped 60 percent. This report comes as the FDA said it may need to upgrade warnings on Chantix after increasing reports of road-traffic accidents and seizures involving people on Chantix. Chantix already has been linked to serious psychiatric side effects such as depression and suicidal ideations and behavior. Last year, the Chantix label warning was strengthened for suicide, although Pfizer claims that the symptoms are not from Chantix but from nicotine withdrawal itself.

In making the Fort Pinto, engineers discovered before the Pinto was placed into the market that rear-end collisions would rupture the Pinto's fuel system extremely easily. Although Ford owned a patent on a much safer tank, Ford made the cost-benefit analysis that compared the cost of an $11 repair against the cost of paying off potential lawsuits.

Ford put all of this in writing, leading to a spate of punitive damage awards. Naturally, no one puts this kind of stuff in writing anymore. That was the lesson of the Ford Pinto litigation.

But plaintiffs’ lawyers argue that the same unwritten calculus keeps drugs like Chantix, Seroquel, and Avandia on the market. The manufacturers of the drugs know the likelihood is that lawyers are going to continue to file lawsuits and these cases are going to eventually settle. The question is whether the costs of defending these cases and paying settlements and verdicts (not to mention the bad will that comes with every lawsuit) is worth the profits received from the drug.

Having said that, let me back step just a bit. I’m not suggesting that Chantix is the same thing as the Ford Pinto because not everyone at Pfizer believes that Chantix is a bad drug. I’ve defended a number of big pharmaceutical companies. I’m not suggesting everyone involved in the manufacturing of Chantix (or Serqouel and Avandia, two other heavily litigated drugs that are under siege and still on the market) are engaging in this raw, void of humanity, cost-benefit decision making process.

I know that within Pfizer there are decent people who believe in good faith that Chantix is a good drug because it is helping people quit smoking. (GlaxoSmithKline actually says Chantix is not efficacious, which is ironic because I’m grouping Glaxo’s Avandia in with Chantix). But if you think plaintiffs’ lawyers are biased, talk to the people who have staked out careers and reputations on the safety and success of a drug.

October’s Chicago Lawyer contains excerpts from an interview with John L. Kirkton, the editor of the Jury Verdict Reporter for the last 17 years.

One great myth debunked by Mr. Kirkton is the theory that jurors tend to give more around Christmas. Personal injury lawyers are always looking to schedule trials around Christmas and defense lawyers always try to avoid civil jury trials in December because they think the spirit of giving leads to more sympathetic jurors. The theory makes some anecdotal sense. Everyone seems to have just a little extra love in their hearts during the holidays.

Jury Verdict Reporter looked at December trials that were reported over the last four years in Cook County, Illinois and found that the plaintiff won between 47 and 50 percent of the time. For December trials, the plaintiffs’ success rate dropped to 44%.

I doubt Christmas has the scrooge effect with jurors; my guess is that the difference between December and the rest of the year in this survey was just a mild statistical anomaly. The study did not look at the size of the awards in December but my guess is they would get the exact same results: no difference.

The lesson of this study is that juries are trying to make the right call year round and the joy of the Christmas season does not alter their efforts. So lawyers on both sides should just schedule their trials whenever the lawyers and the witnesses are available because there does not appear to be a Christmas verdict bump.

I just finished George Lakoff’s book, Don't Think of an Elephant! Know Your Values and Frame the Debate. Channeling my inner Joe Biden, I loved the book; I hated the book.

I hated the book because as much as Lakoff obviously tried to fight it, he does too much of the “no reasonable person could think this way unless they were being manipulated” spiel. It is just too condescending and partisan for my tastes, which I think takes away from some of the luster of the book for me.

A topic near and dear to my heart, tort reform, is the classic example. Lakoff writes (on page 30 for those of you following along at home) that conservatives are not focused on tort reform because of their disdain for the volume of lawsuits, but because they want to take money out the coffers of progressives by taking away the attorneys’ fees available to trial lawyers. Obviously, medical malpractice and accident lawyers generally contribute heavily to progressive candidates.

The thought had never occurred to me that tort reform is a back door to bleed progressive causes and I’m sure there is some truth to it. But the notion that this is the primary source of the motivation for tort reform among conservative thinkers ignores the magnitude of the animosity in many circles of our society – including people smarter than me – with frivolous lawsuits and, to a lesser extent, large jury verdicts.

This problem is compounded by the repeating of verdicts that are completely taken out of context (the McDonald’s verdict), fabricated (the Stella Awards), or simply rare. Compounding this problem further is the fact that celebrities tend to use lawsuits as the resolution mechanism of first choice, leading Americans to assume that these de facto aliens are a microcosm of our country.

Lakoff suggests that trial lawyers need to frame the issues differently. Consumer protection and personal injury trial lawyers should be framed as public protection lawyers. Under this frame, when tort law tries to put a cap on non-economic damages, they are taking away the constitutional right of juries to decide justice. Large settlements and verdicts result in greater public safety because the impact of accident, malpractice and, most importantly in this context, products liability cases go beyond the case at hand and are a form of public protection law.

The problem goes beyond framing, though, because the real issue in the tort reform battle is that there are not enough people to make the frames. Trial lawyers are the wrong messengers. Trial lawyer lobbyists? Worse. So who is left?

The fuel that fills the tort reform train is that everyone on the ride has never suffered a catastrophic injury as the result of the negligence or willful disregard for their safety (typically consumer or med mal context) of someone else. Those folks who have suffered a catastrophic injury often do come forward and make compelling witnesses for the unfairness of many tort reforms, most notably caps on noneconomic damages. But most people who have suffered a grave injury have enough to deal with, without having to the carry the anti-tort reform ball. So that leaves a few compelling proponents against a lot of people who think that their insurance costs and what they pay for drugs and medical devices are due to greedy personal injury lawyers and their clients. And this is a hard obstacle to overcome.

The Baltimore Injury Lawyer Blog last week published a comment written by a State Farm in-house counsel, issuing a rebuttal of sorts about a trial John Bratt tried against State Farm last month.

John's verdict in this case was 8 times the State Farm offer. State Farm's lawyer argued in his comment that it was not a big win for us because the jury only gave the plaintiff her medical bills. The crazy thing is that we agree. John did not view it as a big win, he asked for and was hoping for a lot more. But if we get a verdict that is 8 times the State Farm offer and both our lawyers and State Farm's lawyers think they won, what exactly does that say about the fairness of their offer? I think it calls into question the accuracy of the evaluations State Farm is making in Maryland accident claims.

The message, as always, for Maryland accident lawyers with claims against State Farm and other like minded insurance companies: try more cases.

Interesting data from Jury Verdict Research on the median and average values of wrongful death cases where the decedent is female. The overall average compensatory award for wrongful death of an adult female over the last eight years in the United States is $2,990,032 ($1,102,976 is the median).

Age is a big variable when looking at median and average female wrongful death values. The average wrongful death verdict for a female between 18 and 24 is 2,990,032 ($1,102,976 median). For females between 30 and 39, women who are far more likely to have left behind children, the median wrongful death verdict escalates to $5,605,127 ($2,500,000 median). For women over 80, the average wrongful death verdict plummets to $1,314,241 (322,920 median).

I always find it maddening when insurance companies discount the value of human life in wrongful death cases because of the age of the decedent. If you are eighty years-old and you are killed, those last 10 years of seeing your kids as adults, your grandchildren coming of age and everything else that comes with it are incredibly valuable years. But these numbers, regrettably, demonstrate that there is some logic to their thinking when it comes to how juries value wrongful death cases.

Approximately 62% of the non motor vehicle wrongful death claims in this study are medical malpractice and wrongful death claims – particularly with older patients - so it is reasonable to assume that many of these wrongful death verdicts were compromise verdicts.

Related Posts:

How Lawyers and Insurance Companies Value Personal Injury Cases (summary and report on settlements and verdicts by injury type)

Value of Personal Injury Cases in Washington D.C. (District of Columbia settlements and verdicts)

Valuing Cases in Virginia (average settlements and verdicts in Virginia)

Personal Injury Verdicts Across the Country (personal injury verdicts in your state)

Wrongful Death Settlements and Verdicts in Maryland (wrongful death values)

Value of Wrongful Death Motor Vehicle Accident Cases in Maryland (average settlements and verdicts)

The Baltimore Injury Lawyer Blog has a post about a settlement John Bratt had just before trial in a car accident case this morning. The blog discusses the timing of settlement offers and how settling accident cases on the "courthouse steps" - particularly in small and midsized cases - is probably not in the best interests of the accident lawyer, the client, the defendant, or the insurance company. The only clear cut winner is the defense lawyer who gets to bill the file to the fullest without having to risk getting a bad outcome he/she has to explain to the client.

I hope I am not overplugging the Baltimore Injury Lawyer Blog. But I like the blog a lot and want to expose the Maryland Injury Lawyer Blog readers to it. John is doing something I should do more often: offering actual war stories from the trenches that other Maryland accident lawyers will find of interest and can use in their own practice.

Insurance Settlements, a two volume treatise for which I am the lead author, is now available from James Publishing. This treatise is for personal injury lawyers handling auto accident, truck accident, medical malpractice and product liability cases with a lens toward getting the best possible outcome at all stages of these cases (though trial). The better title for the book - with the benefit of hindsight - would have been "Maximizing the Value of Personal Injury Cases." Maybe I can convince James Publishing to change it down the road.

I’m excited about the book. If you are interested getting a copy, click on this James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Questions or Comments."

The Baltimore Sun reports today that a federal jury California awarded Mattel a $100 million verdict in their copyright infringement lawsuit against Bratz-maker MGA Entertainment Inc.over the rights to the popular Bratz doll franchise.

"Mattel has pursued this case first and foremost as a matter of principle," Mattel CEO Robert A. Eckert said in a statement.

Really? Yet they asked for jury for punitive damages and $1.8 million dollars. I find it amazing how these companies decry punitive damages and “shoot for the moon” plaintiffs’ lawyers until they got their shot on the left side of the v.

By the way, as a shareholder of Mattel, I don’t want them pursuing copyright claims out of principle. We are not talking about human rights here, we are talking about rights to a bunch of dolls. Just try to honestly and ethically maximize profits for me, okay? (All right, I’m not really a shareholder of Mattel. But you get the point.)

There is an article in the New York Times today that concludes that it is best to settle most accident, malpractice and breach of contract claims based on a recent study.

The basis for the conclusion is a study suggesting that defendants made the wrong decision by proceeding to trial, based on the offer and the outcome, in 24 percent of cases, and plaintiffs were wrong in 61 percent of cases.

Setting aside that these numbers do not even resemble the numbers of our lawyers - and probably 90% of the personal injury lawyers reading this - these numbers are hardly persuasive in reaching that conclusion. The reason is simple: if you bet on a horse that is a 50-1 shot and the horse has a 10% chance of winning the race, you are going to lose more often than you win but you are still better off making the bet (i.e., trying the case) than you are not making the bet (i.e. setting the case).

In fact, the article presents powerful evidence of this. When plaintiffs err in going to trial, the study states that they lose $41,000 on average. When the defendants make the wrong call, the error costs them over $1 million. Accordingly, the plaintiff – like the man betting on the horses – may get the decision wrong more often than the defendants from a win-loss perspective, but might still be better served statistically by going to trial.

The irony of the article is the suggestion that personal injury lawyers are pushing cases to trial. The reality is that the failing of most personal injury lawyers is that they push their clients to settle too soon and too often because the lawyer would rather not have to try the case; perhaps this is because they do not want to spend the time or effort or do not have the ability and experience to try the case.

Thankfully, most personal injury cases can and do settle. Moreover, it is important to remember – as the article points out – that for most Plaintiffs a $500,000 settlement is a better choice than a 75% chance of getting $1,000,000 at trial, regardless of the math, because the settlement acts as an insurance policy. But the notion that personal injury lawyers should try fewer cases is just false and plays into the hands of insurance companies that are seeking every possible avenue to convince injury and malpractice lawyers to recommend to their clients values that do not approximate a fair settlement for the case.

While I was on vacation, I promised more commentary on Matsuyama v. Birnbaum, a landmark medical malpractice opinion on loss of chance from the Massachusetts Supreme Judicial Court.

In Matsuyama, the 42 year-old Plaintiff’s decedent, Mr. Matsuyama, saw the Defendant doctor, a board-certified internist and the Plaintiff’s primary care doctor, for a physical in July, 1995. Mr. Matsuyama's medical records from that visit indicated disclosure of complaints of gastric distress for the last seven years and that Mr. Matsuyama's prior doctor had noted that he might need additional tests to evaluate his symptoms.

The Defendant doctor testified that Mr. Matsuyama complained of "heartburn and difficulty breathing associated with eating and lifting." The Defendant also knows Mr. Matsuyama was a smoker at high risk for developing gastric cancer. Without further testing, the doctor diagnosed Mr. Matsuyama with gastrointestinal reflux disease.

Plaintiff’s expert testified that at this point the doctor committed medical malpractice by failing to order the appropriate tests, and, over a year later with the same symptoms and facts available to him, he continued his diagnosis in spite of complaints that Mr. Matsuyama’s heartburn was worse and that he had gastric pain after eating. A year later, Mr. Matsuyama again visited his doctor and asked about moles that been developing. The doctor diagnosed “benign seborrhea keratosis."

I’m getting deeper into the medical facts here than I would like, but you get the point. Mr. Matsuyama went back to the doctor with more symptoms consistent with gastric cancer and his doctor continued to fail to test more thoroughly for cancer. But in May, 1999, when his symptoms went through the roof, the doctor ordered a gastrointestinal series and an abdominal ultrasound, which quickly revealed a two-centimeter mass in Matsuyama's stomach. He died in October, 2000, leaving behind a wife and child.

After a six-day trial in Norfolk County Superior Court, the jury found the doctor negligent and found that the doctor’s medical malpractice was a "substantial contributing factor" to Mr. Matsuyama's death and awarded Matsuyama's estate $160,000 for pain and suffering caused by the negligence. Then, in response to a special jury question, the jury awarded damages for “loss of chance.” They calculated the damages to be $875,000 as "full" wrongful death damages and found that Matsuyama was suffering from stage-2 adenocarcinoma at the time of doctor's initial negligence and had a 37.5% chance of survival at that time. The Norfolk jury awarded the plaintiff "final" loss of chance damages of $328,125 ($875,000 multiplied by .375) for a total of $488,125.

Continue reading "Lost of Chance in Medical Malpractice Cases: What Massachusetts Has Done and What Maryland Should Do" »

Jury Verdict Research provides median award data and verdict probabilities in head-on auto, truck and motorcycle accident cases nationally. Plaintiffs prevail and recover damages in 64% of these cases. Surprisingly, the median award in these head-on collision personal injury cases is only $31,875.00. This number reflects the fact that 24% of the head-on collision claims in the study were for “back strains” where the average award is only $9,312.00. These are probably not the injuries we think of when we think of a head-on collision.

But here is a real shocker: the median head injury verdict in head-on collision accidents is only $25,000.00. If you have a head injury, typically you have a serious accident. So this data is – to say the least – not what I think most car accident lawyers would have suspected. If I had to guess at the head-on collision national median, I would have predicted the number would be at least six figures. I would suspect that the average - as opposed to the median - exceeds $200,000 but I could not find any data to support my hypothesis.

Other median verdict data of interest in head-on collision cases:

Leg injury head-on collision: $156,818.00

One way street head-on collision: $27,064.00

Curves, hills and bridges head-on collision: $50,000.00

Fatal head-on collision: $509,919.00

The latest edition of Metro Verdicts Monthly provides numbers on false arrest/imprisonment cases in Virginia, Maryland and Washington, D.C. The median legal false arrest/imprisonment verdict or settlement in Washington D.C. was $25,000.00. Virginia and Maryland have slightly higher median settlement/verdicts of $26,000.00 and $29,000.00, respectively.

Our law firm does not handle these cases. (On the rare occasion we get a false imprisonment/false arrest/police brutality case we refer the case to Larry Greenberg, a Baltimore lawyer, who does a really good job and aggressively works up those cases.) But I’m surprised the median verdict/settlement is this high because I would think the median case would be one with relatively insignificant injuries except for the inconvenience. There are awful exceptions to that rule to be sure but those awful exceptions would be reflected in the average – as opposed to the median.

While I obviously love these graphs, I wish Metro Verdicts Monthly would provide a little more information. I’m not sure if this number only involves police officer false imprisonment cases or also includes non-police cases where, for example, a department store detains someone they wrongfully accuse of shoplifting. If I were a juror, I would be more inclined to give a larger award against an overzealous Wal-Mart or Target employee than I would a police officer trying to do his/her job in good faith, albeit negligently.

Every month or so, I report on the Metro Verdicts Monthly graph on the front of their publication which compares verdicts and settlements for a certain type of personal injury claim in Washington D.C., Maryland, and Virginia. Sometimes I am surprised by the difference in the results.

This month I am astounded by the difference between Virginia, Washington, D.C. and Maryland in median nursing home liability verdicts and settlements since 1987. The median recoveries in Maryland and Virginia are $125,000 and $175,000, respectively. This means that the median settlement and verdict in Virginia is 40% higher than Maryland. Virginia juries are generally more conservative than Maryland so this result is somewhat surprising. But here is what I find surprising: the average nursing home case settlement or verdict in Washington, D.C. is $700,000.

I have not done any sort of sophisticated jurisdictional analysis but I believe there is a general correlation between the size of nursing home verdicts and the size of medical malpractice verdicts. Yet these figures do not appear to support this conclusion. Metro Verdicts Monthly reports that the median settlement and verdict in Washington, D.C. for wrongful death medical malpractice cases over the last 20 years is $665,700. This is much less than Maryland’s median recovery of $900,000 or Virginia’s median recovery of $750,000.

These statistics would surprise me less if the study used average instead of median because the average can be influenced by extremely high verdicts or settlements that can create a misleading picture. But the median settlement or verdict number means that the study divided the jury verdicts and settlements into two equal groups, half having settlements or verdicts above the median and half having settlements or verdicts below the median.

On Wednesday, a Baltimore City jury awarded a 78-year-old Owings Mills woman $2 million in a medical malpractice case stemming from a failed surgery that led to three successive leg amputations.

After the verdict, Defendant’s medical malpractice lawyer gave this quote to the Maryland Daily Record: “This reaffirms my long held view that it is extremely difficult for a physician to get a fair trial in Baltimore City, particularly where there is a bad outcome and a sympathetic Plaintiff.”

If I were the reporter, I would have asked a few follow-up questions. Do you think that the people of Baltimore are not as smart and more prone to emotion then, let’s say, a Baltimore County jury? Why do you think this is? Is it just medical malpractice cases we cannot trust them with or all cases? What should we do about this problem with Baltimore City jurors? Should we replace Baltimore City jurors with the right kind of people, like the good folks in, let’s say, Potomac. If Baltimore City jurors can’t be fair on juries, should we continue to trust them to vote?

Congratulations to the malpractice victim and her lawyers Charles J. Piven of Brower Piven in Baltimore and Barry J. Diamond.

A recent Jury Verdict Research analysis of jury verdicts over the last 10 years found that the overall median award for the amputation of one toe is $119,008. The median award for foot nerve damage or tarsal tunnel syndrome accident cases was $143,265. Underscoring the difficulties of the healing process in the complex structures that are our feet, the median award for foot injuries generally is $98,583.

The median for foot injuries generally makes sense to me. I’m stunned that the average verdict for an amputated toe is as low as it is. You have to remember that unless this is a lawnmower case, it is likely that the plaintiff suffered other injuries as well. In any event, I certainly think I value my 10 toes more than American juries.

For information the value of foot injury fracture cases, click here.

Metro Verdicts Monthly recently provided data on legal malpractice settlements and verdicts in Virginia, Maryland and Washington, D.C. The median legal malpractice settlement/verdict in Washington D.C. was a whopping $262,500.00. In Virginia and Maryland, the median legal malpractice settlement/verdict was $212,500.00 and $140,211.00 respectively.

What explains the incredible disparity between Washington, D.C. and Maryland and why is Maryland's median so low? I really have no idea. As always, I find this type of data very interesting yet useless.

A Jury Verdict Research report this month found that over the last ten years, the national median award at trial in personal injury cases for a vertebra fracture is $112,537. Almost two-thirds of the cases in the study were motor vehicle accidents, which is the leading cause of spinal injuries in this country. Not surprisingly, the median award for multiple vertebrae fractures is almost double the single vertebra amount, $207,000.

When I first read this report I assumed the numbers were low because they excluded cases where there was a spinal cord or head injury. But apparently, 7.5% of the verdicts were in excess of $2,500,000, which means they have to include vertebrae fractures where the spinal cord was implicated or there was an accompanying head injury. Because of the proximity of the vertebrae to the spinal column, and because of the weight bearing implications of a vertebra injury, I assumed this number would be much higher, but there must be more minor fractures to vertebrae without significant injury than I realized.

The Maryland Daily Record reports that a Baltimore jury awarded $82,000 to an 8-year-old boy who only briefly exhibited elevated levels of lead in his blood.

In May 2000, the boy’s level was four micrograms of lead per deciliter of blood. In December, his level rose to 29 micrograms. I am a parent of three small children and, as a defense attorney, have defended lead paint cases in Maryland. If my child had a lead level of 29, I would absolutely freak out. In this case, thank God, as quickly as the level rose, it fell. By December 28 the young boy’s level was 19. It fell to 12.6 in February and then down to 8.6 in March.

The Plaintiff’s lead paint lawyer conceded that the boy was doing well. Apparently, he was doing great in school and he tested in the 97th percentile for reading, but there is no question that lead harms children. Should the fact that the child is doing well be a defense? We know lead paint harms children and we know this child, while doing great now, had cognitive delays. Would he be in the 99th percentile but for the lead? So I think the jury’s verdict was probably very reasonable (although you would have to be on the jury to really render an opinion).

The lawyer who defended this lead paint case, John H. Doud, III, a solo practitioner representing the uninsured landlord in the case, made what I think was an awful comment after the verdict. Mr. Doud said the verdict sends the wrong message to landlords. He said the message is that "when your first tenant sues you, I would get into another business.”

This is not the take-home message from this case. There is not strict liability in lead paint cases. This little boy could only recover if his lawyer proved that the landlord had actual or constructive knowledge of the problem and did nothing to solve it. In other words, the landlord has to know that his property could cause brain damage to children and still not bother to fix the problem. This burden in lead paint cases is more stringent than general negligence claims. So, that is not the lesson to landlords about lead paint that should come from this case. Instead, the lesson is if you are going to be cavalier about exposing children to lead paint that is known to cause brain injury, you do so at your own peril. The landlord should pay the verdict and thank his lucky stars that Maryland makes obtaining punitive damages so unreasonably difficult.

Metro Verdicts Monthly has a graph in this month’s issue that reflects the median verdicts and settlements when the injury victim loses vision in one eye in Washington, D.C., Maryland, and Virginia. The median for the loss of vision in one eye in Maryland is $231,000. You could drive a truck through the gap between Washington, D.C. and Virginia’s median settlements in verdicts with loss of vision in one eye cases: Washington, D.C.’s median is $162,500; Virginia’s is $320,000. If you read graphs regularly, you would expect Washington, D.C. and Virginia to be reversed because Virginia as a whole typically has more conservative verdicts.

These numbers are a bit misleading I think because most loss of vision cases are products liability cases. Many products liability cases have questionable liability which decreases the average and median recoveries. If liability is not an issue, the values of these cases are much higher.

On the Maryland Lawyer Blog today, I discuss one of our products' cases against Home Depot and Chapin International involving one of Chapin's sprayers.

Many plaintiffs’ personal injury lawyers are complaining that State Farm’s profit surged to $5.6 billion in 2006 — up 75% from $3.2 billion in 2005. State Farm’s CEO, Ed Rust, Jr., received a $5.26 million dollar pay raise last year and is now earning $11.66 million. Implicit in this complaint is the idea that State Farm’s lowball offers and hardball tactics are the reason why their profits are so high and their CEO is overpaid. I think these complaints are misplaced for a lot of reasons.

First, General Motors took a $39 million loss last quarter. While this statement is misleading as well, it underscores the obvious: big companies can have large profits and large losses. A number like $5.6 billion in a vacuum means nothing, particularly for a huge company like State Farm. If you think the insurance companies make too much in profit, put your savings in a company like Allstate, which is publicly traded. But be careful: Allstate, for example, has underperformed the market in the last ten years. Insurance companies are hardly the Google of the stock market and I really don't think there is any evidence that their profits are historically excessive. (Please, correct me if I'm wrong.)

Second, with respect State Farm’s CEO’s salary, State Farm is a Fortune 100 company. If high CEO salaries are a problem (and I don’t think they are for reasons that are not worth getting into here), it is not specific to the insurance companies. Big company CEOs are making a ton of money in every business.

Finally, and I think most importantly, I think it is misplaced to expend energy complaining about low ball offers. Setting aside first party obligations where the paradigm is a little more complex, insurance companies should be trying to do whatever they ethically can to decrease payouts. It is our job as personal injury lawyers to do the opposite. We are not shooting for fair offers, we are trying to get as much as we possibly can for our clients. They call us greedy personal injury lawyers and we call the insurance companies, like State Farm, cheapskates. But maybe this is not the worst thing in the world. We have an adversarial system that has been in place for a few hundred years and I think it works. To the extent that it does not, it is clearly not a perfect system. It is just the best system.

State Farm and their brethren are going to play tough. That’s okay. If personal injury lawyers hold up their end of the bargain and fight back, the system will work just fine.

I stumbled on a 2003 study titled “ Race Poverty, and American Tort Awards," written by economists Alex Tabarrok of George Mason University in Virginia and Eric Helland of Claremont-McKenna College in California published in the Journal of Legal Studies offering some interesting observations on how race and poverty levels impact tort awards. According to the study’s findings, which used data from successful personal injury cases from 1988-1997, as the poverty rates of minority plaintiffs increase so does their average tort award. It is not a one size fits all trend, however, and there are different levels of change seen among the different minority groups. For example, an increase of just one percentage point in poverty for African-American plaintiff results in a 3 percent increase in jury awards whereas the same increase in poverty percentage yields a 7 percent award increase for a Hispanic plaintiff. Interestingly enough, the exact opposite trend occurs when examining the poverty level of white plaintiffs, whose mean awards decrease with an increase in poverty rate percentage.

Just as the results of the study vary on the race of the plaintiff, the amount awarded fluctuates depending on the type of case in question. An increase in plaintiff poverty rates from 15-20% to over 25% results in an award jumping from $2.5 million to $4 million for product liability cases and from $1.8 million to $4 million for medical malpractice torts. It appears, however, that plaintiffs in auto cases do not reap the same benefits. Not only are their awards consistently lower than those of product liability and medical malpractice cases (which is hardly a surprise), but the awards seem unchanged by fluctuations in poverty level.

There is one final but important caveat to this study. While race and poverty level are important factors in the amount awarded in a successful tort case, they seem to have no bearing on whether plaintiff prevails on liability?

This is the part of the blog post where I analyze what this all means. But I have no idea. Still, it is interesting data.

The West Virginia Supreme Court, applying West Virginia’s medical malpractice cap, affirmed the trial court’s decision to cut a $10 million medical malpractice verdict against a West Virginia hospital and one of its doctors down to $1 million.

Plaintiff’s lawyers contended that the non-economic damages cap in medical malpractice cases in West Virginia did not apply to the jury’s verdict because their claim against the hospital did not arise out of the care and treatment of the Plaintiff but instead because of the hospital’s failure to control an environmental serratia outbreak which the jury found caused Plaintiff to contract a nearly fatal infection during an otherwise routine anterior cruciate ligament (“ACL”) surgical reconstruction in 1995.

Relying on judicial estoppel, the West Virginia Supreme Court disagreed in a tight 3-2 decision. The court found that Plaintiff pursued the case as a medical malpractice case in the pleadings, in their requested jury instructions, the agreed upon verdict sheet, and in Plaintiff’s closing argument.

Of those four, I think the verdict sheet is the most compelling. The verdict sheet read: “Do you find by a preponderance of the evidence that West Virginia University Hospitals, Inc., was negligent in its care and treatment of the Plaintiff by failing to maintain a safe and proper hospital environment with respect to infection control?”

Like most personal injury attorneys, I dislike medical malpractice or any other caps on non-economic damages. But I also believe in applying the law and suspect that this was the right decision.

I say "suspect" because two judges did dissent but neither have issued an opinion. There still may be a dissenting opinion; in West Virginia, they put out the majority opinion when it is ready even if the dissenting opinion has not yet been drafted. I will be interested in seeing specifically why those judges dissented.

Politically, you also have to figure that all things being equal, the West Virginia Supreme Court would rather not have a ten million dollar judgment against the state's premier hospital. Moreover, even I will admit that the verdict seems high given that there was no mention of any permanent injury. I'm not mimimizing what appears to be an awful case that almost killed a 15 year-old girl. I'm just not sure if the damages should be eight figures. The Plaintiff's medical malpractice lawyers likely did not expect a $10 million verdict because they were clearly couching the case as a medical malpractice case, fully aware of the cap, when they really did not have to do so.

Of course, the preceding paragraph does exactly what I always complain about when others do it: second guessing a jury's verdict when they sat through the entire trial and were in the best position to make the call as to the appropriate damage award. But on the limited information I have, and assumptions I am making because the Plaintiff's medical malpractice lawyers set up the case as a medical malpractice case (knowing about the cap on non-economic damages and the lack of facts regarding permanency) and my own limited knowledge of serratia bacteria infection secondary to surgery, a $10 million verdict seems awfully high.

You can click on the link for the West Virginia Supreme Court Opinion.

Metro Verdicts Monthly's graph in this month’s issue is median settlements and verdicts in cervical (neck) herniated disc cases in Maryland, Washington, D.C., and Virginia. The median cervical herniated disc case in Maryland is $40,000. The Washington D.C. and Virginia medians are $50,000 and $36,000, respectively.

I always qualify providing this data with a “for what it is worth.” In the case of cervical herniated disc injuries, it is a “for what it is worth” squared. If a person says they are an actor, there are a lot of different degrees of being an actor. She may be Meryl Streep or her signature role may be “Crazed Killer #12” in a 5 second cameo appearance in a B movie. Herniated disc injuries are the same thing. Some people are walking around with cervical herniated discs that they cannot feel; for other, their lives are virtually destroyed by the injury.

The other problem is I do not think plaintiffs’ personal injury lawyers properly value herniated disc injuries and, consistent with my post on Monday, lawyers settle these cases too quickly. This is particularly true with cervical herniated disc cases as opposed to lumbar (back) disc injuries, because some herniated disc injuries are relatively benign. But the fact that there are some smaller herniated disc cases should not alter the value of the serious injury cervical herniated disc injuries.

I had a jury trial in an auto accident case in Anne Arundel County against State Farm last week. It was a soft tissue injury case with over a year of treatment. It was a case we inherited from another lawyer who retired last year.

The biggest weakness of the Plaintiff's case is that he had few doctor visits before complaining of the soft tissue injury upon which the claim was based. The Defendant's biggest weakness was their liability defense never actually made any sense. The Defendant was, however, very old and very sympathetic. Because the jury is never told insurance is going to pay the claim, you have to expect this to be a factor in the amount of the recovery even if they do suspect there is insurance behind the Defendant.

The jury found for the plaintiff, but awarded only a little over $16,000. State Farm was thrilled, and I was depressed for a few days. They won and I lost. That is how we both saw it and marked our scorecards accordingly. But here's the thing: State Farm only offered $5,000 on the case. It underscores how unreasonable State Farm's offers can sometimes be when it views a jury award of over three times their offer to be a success.

I shouldn't single out State Farm. We have "lost" a lot of trials were the verdict was a great deal higher than the last settlement offer, particularly in smaller cases in difficult venues. (If you are not a Maryland personal injury lawyer, Anne Arundel County is a relatively affluent county whose juries are considered conservative, particularly in cases that involve subjective complaints of pain without any positive diagnostic findings.)

A part of the reason why insurance companies don't feel compelled to make fair offers is because too many personal injury lawyers do not want to try the case - they take the settlement offer. If more personal injury lawyers held the insurance companies' feet in the fire and made them try cases where the offers are unreasonable, we would have many fewer unreasonable offers. Of course, we settle a lot of cases where the offers are unreasonable, because the client does not want to go to trial. But I think too many lawyers convince their clients to settle personal injury cases that really should be tried.

It is Christmas for the Maryland Personal Injury Lawyer Blog.... Jury Verdict Research just published a new Maryland specific study on the median compensation awards for car, truck and motorcycle accidents. In cases that go to trial, the median recovery was $11,328. Only in 1% of the cases did the jury award more than $500,000. Plaintiffs prevailed and received a recovery in 74% of the motor vehicle accident cases that went to trial in Maryland.

This data is from Maryland verdicts from 2000-2006. The data has remained relatively unchanged. From 1998-2004, the median recovery was $11,277, $51 dollars less than the latest study.

While I'm excited to see a new study on Maryland auto accident verdicts because I love looking at statistics on jury verdicts, I think the data is fairly useless. As I have written before, Maryland's jury verdicts are distorted by the defense lawyers who routinely "bump up" what should be small court claims to Circuit Court. In other words, if an auto accident lawyer in Maryland files on small claim for more than $10,000 but less than $30,000 (which is the new District Court maximum as of today), the insurance company's lawyers may remove the case to Circuit Court, which generally requires a jury trial and almost invariably leads to greater expenses from both parties. This practice distorts the jury awards. I read Metro Jury Verdicts every month and half of the reported personal injury cases in Baltimore are nickel and dime cases that never should go in front of a jury. So I think this data is interesting and useless all at the same time.

The Maryland Daily Record yesterday reported on a $4 million verdict an Anne Arundel County jury awarded to the parents of a 5 year-old boy who drowned in the Crofton Country Club pool in 2006. The parents of Connor Freed filed suit against D.R.D. Pool Service, Inc, who managed the pool for the country club. The boy was at the pool with some family friends and was found floating in the pool after a trip to use the bathroom. The suit alleged that the pool was an adequately supervised by only one, 16 year old lifeguard with 3 weeks' experience. It further alleged that CPR was performed incorrectly and that a defibrillator should have been used. (D.R.D. filed a cross-claim against the family friend but the jury found him not liable.)

Interestingly, the parents' claim for the child's conscious pain and suffering was dismissed in a pretrial ruling. I do not know all of the facts but unless he was unconscious when he hit the water, I cannot imagine how there could not be a survival action for conscious pain and suffering.

The jury award was 2,000,706 for each of the child's parents. The 706 represents the child's birthday of July 6th. That gives me goose bumps. Regrettably, the real recovery will only be about $1,020,000 (plus an economic damages) because that is the cap for non-economic damages in a wrongful death case with two or more beneficiaries.

If you read Maryland Personal Injury Lawyer blog regularly, you are tired of hearing me say this over and over again. But this jury picked an incredibly specific number as compensation for these parents. Does anyone think this is an unfair award? If the award is not unfair, why does Maryland law cap damages in these cases? It is just wrong and this is one of those cases that underscores the injustice of Maryland's cap on non-economic damages in wrongful death cases.

Connor's parents have started the Connor Cares Foundation whose mission is to get legislation passed for pool safety standards and get a standardizes pool rating safety system in place nationwide. It is nice that these these parents are trying to achieve some good from such a tragedy.

I have three small kids and a swiming pool. My wife and I are pretty obsessed with pool safety. We have a lot of systems to ensure safety and I am still terrifed by the pool. Every time we start to let our guard down even a little bit, I am reminded of a chilling stat: it is safer to have a gun in the home than a pool in the backyard.

Jury Verdict Research reports this week that the median jury award over the past 10 years, in personal injury cases involving arthritis injuries, is $38,867.00.

This study involved personal injury verdicts where the victim’s primary injury was inflamed, painful, and/or weak joints or muscles. The study underscored what personal injury lawyers around the country have long known about fibromyalgia cases: juries struggle with them. This is borne out by the numbers - the median jury award of what we would call “pure” arthritis cases is $121,538.00; the median fibromyalgia jury award is approximately $23,000.00.

Insurance adjusters love to ignore Maryland law that provides a recovery for exacerbations of preexisting injuries. To the extent that they acknowledge the law, they bundle all of the injury victim’s problems and drop them on the doorstep of the original injury.

Many personal injury lawyers in Maryland run from taking preexisting injury cases - particularly when the prior injury is serious - because they fear they will be unable to apportion the harm. If there are two or more causes of an injury, and indivisibility is not apparent, a Maryland plaintiff has to show either (1) the harm is not divisible, or (2) the harm was produced by both the preexisting cause and the new cause. Clearly, in some cases this is an impossible hurdle but, in most accident or medical malpractice cases this task is very doable when lawyers take the time and money to get the appropriate medical opinions before accepting or rejecting the case.

I was reading an article in the Washington Post today titled "Juries Showing Change in Large Award Cases." The author, quoting a Washington DC personal injury lawyer, states that "juries have changed in recent years and no longer award the extremely high 'sympathy' verdicts for which they were once known. Juries [the quoted personal injury lawyer said] have become influenced by other factors, including the idea that big judgments came from insurance premiums, which all of us pay."

If you are a personal injury lawyer reading this, you are not surprised because everywhere we go we are hearing about changing juror attitudes. But there is one thing I neglected to mention about the article: it was written on Christmas Day in 1978, over 28 years ago.

I realize that, on some level at least, personal injury lawyers are losing the struggle for the hearts and minds of jurors who are increasingly predisposed to be skeptical of personal injury victims. On the other hand, this kind of talk has always reminded me of the good ole days in the 50s when life was simpler and people were kinder and gentler - the "Happy Days" era. While I'm sure there is a modicum of truth to that notion, there is a lot of fiction to it as well, as anyone black or openly gay can attest. And you can be assured that people in the 50s were talking about how simple and idyllic things were back in the good ole days.

The point is that some of this talk of changing juries is similar to the good ole days talk. This is a good thing for personal injury lawyers to keep in mind before walking in front of a jury because all of this doom and gloom about juror attitudes can be a self-fufilling prophecy.

The District of Columbia Court of Appeals recently upheld a $3.5 million medical malpractice verdict after a 12 day jury trial against a Bethesda, Maryland obstetrician/gynecologist and Sibley Memorial Hospital in Washington, DC. After the verdict against both the doctor and the hospital, Sibley settled with the Plaintiff but the doctor appealed.

The case stemmed from a dilation and curettage (D&C as it is commonly called) during which the OB/GYN inadvertently perforated the Plaintiff's uterus, causing more than three quarts of toxic bowel content to leak into her peritoneal cavity. The leakage caused her internal organs to be "continually bathed," as the court called it, in infectious material, which lead to multiple permanent complications.

On appeal, the doctor contended that the verdict sheet was flawed, that there was improper admission of the hospital's expert testimony, that there was unfair surprise, and that Defendant was entitled to judgment notwithstanding the verdict.

Interestingly, the District of Columbia Court of Appeals found that the verdict sheet was flawed because it did not show which breaches of the standard of care that the jury had found proximately caused Plaintiff's injuries. The trial judgem somewhat understandably, was trying to make what was already a complicated verdict form less complicated by not adding even more questions for proximate cause. However, the court found this was essentially harmless error, because it did not really matter that the jury did not specify which negligent act was a proximate cause because any of the negligent acts could have been the proximate cause (proximate cause and injury was nailed down in other questions to the jury).

This District of Columbia's Court of Appeals' 31 page opinion can be found under Townsend v. Donaldson on the court's website. If you read the case, one of the things you will find interesting is that the hospital and doctor depart from the usual "malpractice defendants stick together at all costs" game plan to the point there the hospital's expert expressly opines that the doctor negligently failed to notify the subsequent treating doctor about issues relevant to the care of the patient.

The Baltimore Sun reports on a $4 million verdict awarded to two siblings in a Baltimore City lead paint case. Regrettably, the damage award will be reduced to $350,000, which was the cap on noneconomic damages at the time of the injury. Bruce Powell, a real nice guy I used to deal with back when I was defending lead paint cases (which seems like a lifetime ago) told the Baltimore Sun that he would challenge the state's cap on noneconomic damages. "You have a right to a jury trial, and you have a right to what the jury awards you," Powell told the paper. "The jury thought that they were compensating these people in a way that was fair, and that's not the case."

I wish Bruce all of the luck in the world and I agree with every word he said. But he has zero chances of overturning the cap.

The Institute for Legal Reform apparently ranks states in terms of the legal climate for businesses. The study is obviously flawed. The results are determined from a survey of the 1,599 in-house general counsel lawyers working for larger corporations - not exactly an unbiased group. For personal injury lawyers, it is also worth noting that insurance companies, whose votes should receive more weight in considering the tort climate, made up only 5% of the total sample. I suspect most of these companies are focused on employment law claims, which are a very different animal from tort claims. Still, with these caveats, I think there is at least something telling about the study. Delaware, as always, was the clear "winner" in the poll. Here are the rest of the rankings:

2. Minnesota
3. Nebraska
4. Iowa
5. Maine
6. New Hampshire
7. Tennessee
8. Indiana
9. Utah
10. Wisconsin
11. South Dakota
12. Virginia
13. Kansas
14. Connecticut
15. Arizona
16. North Carolina
17. Oregon
18. Massachusetts
19. New York
20. North Dakota
21. Colorado
22. Wyoming
23. Michigan
24. Ohio
25. Washington
26. New Jersey
27. Vermont
28. Nevada
29. Maryland
30. Idaho
31. Georgia
32. Pennsylvania
33. Kentucky
34. Missouri
35. Rhode Island
36. Florida
37. South Carolina
38. Oklahoma
39. New Mexico
40. Montana
41. Arkansas
42. Hawaii
43. Alaska
44. Texas
45. California
46. Illinois
47. Alabama
48. Louisiana
49. Mississippi
50. Virginia

Incredibly, Maryland “fell” nine rungs on the Institute of Legal Reform’s ladder from 2006 to 2007, because of “significant declines” on “four” key elements: (1) handling of the discovery process, (2) perception of the competence of judges and judges’ impartiality, and (3) having and enforcing meaningful venue requirements (astute mathematicians may note this is only three categories, not four).

Have I been in a coma for the last year? There have been no significant changes on any of these fronts from 2006 to 2007. This is nonsense. But, however flawed, I enjoyed seeing a ranking of these states and I think personal injury lawyers in every state would find of interest where their state ranks on this list.

Metro Verdicts Monthly's graph this month is median settlements and verdicts in wrongful death claims in Maryland, the District of Columbia, and Virginia. The median wrongful death settlement in Maryland is $850,000. In Virginia and the District of Columbia, the medians are $675,000 and $750,000, respectively

Previous blog posts have discussed these numbers in motor vehicle accident and medical malpractice wrongful death cases.

For personal injury lawyers, I used to think that this kind of information falls under the category of "fascinating information but I have no idea what to do with it." But I have found presenting adjusters with objective information sometimes helps the adjuster better appreciate the value of a case, particularly in truck accident cases where the adjusters are typically in other jurisdictions and do not fully appreciate the value of a certain kind of case in your jurisdiction.

In the last couple of weeks, the Maryland Personal Injury Lawyer blog has put out a lot of data on compensation awards in medical malpractice cases and in auto and truck accident cases. In my research on these posts, I found some other data comparing different states' verdicts. Although this data is a little dated (1994-2000), I thought it was interesting for lawyers in different jurisdictions to compare verdicts:

New York ........... $275,000

South Dakota ..... $120,913

Minnesota .......... $111,488

New Jersey ........ $104,750

Pennsylvania ...... $100,000

Louisiana ........... $ 95,000

Georgia .............. $ 12,000

Oklahoma .......... $ 10,282

Tennessee ......... $ 10,891

Arkansas ........... $ 10,000

North Carolina .... $ 10,000

South Carolina ....$ 10,000

National overall ... $ 45,000

This data is arguably misleading because to the varying thresholds to get to a jury trial in a particular jurisdiction. If a jurisdiction allows, or even requires, jury trials for cases where the plaintiff’s lawyer is seeking, for example, over $10,000, the awards are going to be a lot lower.

In Maryland, for example, where the average verdict in personal injuries cases is around $12,000, many small claim type personal injury cases find their way to Maryland juries. This is because defense lawyers in personal injury cases in Maryland have the ability to remove a case to the Circuit Court from the District Court (if the plaintiff seeks more than $10,000 but less than $25,000). Defense lawyers often do primarily to increase the burden on Maryland personal injury lawyers in jurisdictions where juries are less favorable (counties other than Baltimore and Prince George's). Still, I think the data is interesting because it gives personal injury attorneys some indication of the jurisdictional differences.

Forbes put out an article a few days ago about GlaxoSmithKline's own analysis of its diabetes drug Avandia. It reached essentially the same conclusion as the report in the “New England Journal of Medicine,” which came out earlier this week: Avandia may cause an approximately 43% increase in the risk of heart attack. So why didn’t Glaxo do something when it learned of the potential risk that Avandia posed to the millions of users of the drug?

Glaxo’s defense of Avandia is distrubing. Glaxo says that its does not believe that a 43% increase in risk was definitive of a problem, because the risk may be explained by other drugs or diseases.

This may be so. But what did GlaxoSmithKline do? Did they warn doctors or the millions of uses of Avandia and notify them that at least there may be an increased risk of heart attacks, even though GlaxoSmithKline believed that Avandia was safe? Did they allow doctors and end users the opportunity to decide for themselves if Avandia was safe, or if the benefits outweighed the risk? No, Glaxo chose to risk consumer safety.

The “Forbes” article quoted one drug safety expert, Curt Furberg of Wake Forest University Baptist Medical Center, who feels strongly that Avandia should be taken off the market, because of the increased risk of heart attacks: "Either the company suppressed or the FDA was asleep.” He further said that he believes the question as to whether Avandia should have been taken off the market is a “no-brainer."

At some point, an Avandia lawyer is going to be asking a jury this same question in closing argument: Was it a “no-brainer” to take Avandia off the market?

A large clinical study Glaxo is conducting to test the risks of Avandia may be in jeopardy as a result of recent reports of the drug’s risks, according Dr. Ronald L. Krall, the medical director for GlaxoSmithKline who said in an interview that some of the 4,450 patients enrolled in the drug trial have dropped out because of safety concerns about Avandia. Now there is concern
about the ability of the study to continue and they are “considering what to do to prevent people from dropping out of the trial,” according to Dr. Krall. I think they should place more concern on the question of whether continuing their trial will lead to more deaths as the result of the use of Avandia.

A Baltimore jury yesterday found an responsible for the brain injury and death in 2003 in a shoulder dystocia case and awarded the child’s parents $8.1 million. the damages would be limited to just over $2.1 million under Maryland law putting a cap on awards for pain and suffering.

During the delivery of the child at Mercy Hospital, the child’s shoulders became stuck in the birth canal. This condition, known as shoulder dystocia, occurs when the child's head is able to clear but the shoulders require additional medical maneuvers for the child to be delivered. In shoulder dystocia cases, one shoulder of the baby usually is trapped behind the mother's pelvis, obstructing the baby’s breathing.

It is hard to conjure up a more horrific case. This Baltimore jury that heard all of the evidence this medical malpractice case determined the damages at $8.1 million. Why do we have a law in Maryland that only awards these Plaintiffs about one-fourth of what the jury believed was appropriate?

Metro Verdicts Monthly reports that the median settlement and verdict in Maryland for wrongful death medical malpractice cases over the last 20 years is $900,000. This is far more than the verdicts in Maryland’s sister jurisdictions, Virginia and Washington D.C, which have medians of $750,000 and $665,700.

Looking at malpractice cases more generally, the median medical malpractice jury award in Maryland, according to Jury Verdict Research, is $500,000 in 2003, the last year for which I could find data. Verdicts that year ranged from $54,521 to $7,708,064.

Jury Verdict Research also gives interesting data on the median verdicts in other jurisdictions: Florida - $1,257,386; New York - $1,100,000; Pennsylvania - $1,000,000; Ohio - $850,000; Indiana - $750,000; Missouri - $694,000; North Carolina - $500,000. Not all of this data is comparing exactly apples to apples, because the range changed with the publication date, but I still think this provides an interesting means of comparison for medical malpractice lawyers.

Of course, these verdict - as opposed to settlement - figures are misleading, as any medical malpractice lawyer will tell you, because not all verdicts are collectable or at least not fully collectable, particularly today when so many states have caps on non-economic damages in medical malpractice cases. The National Practitioner Databank (NPD), a government reporting system for doctors and hospitals, reveals what is really collected in medical malpractice cases. Every payout (not the verdict amount, but the actual amount paid) in a malpractice case has to be reported to this data bank. NPD’s most recent annual report found that, nationwide, the average money damages recovered - by settlement or verdict - was $170,000.

Going back to wrongful death medical malpractice cases in Maryland, the new cap on non-economic damages in wrongful death malpractice cases is going to have an impact on these figures as time goes on and more malpractice cases are tried and settled with dates of death which are after the effective date of the new statute.

If you have been injured in a medical malpractice case in Maryland or you have lost a member of your family due to medical malpractice and are interested in pursuing a settlment or filing a lawsuit, call today to speak with a personal injury lawyer who handles Maryland wrongful death medical malpractice claims and other malpractice lawsuits. You can reach a Maryland malpractice lawyer at 800-553-8082 or by clicking here for a free no obligation consultation on the Internet.

Related Posts:

How Lawyers and Insurance Companies Value Personal Injury Cases (summary and report on settlements and verdicts by injury type)

Wrongful Death Settlements and Verdicts in Maryland (wrongful death values)

Wrongful Death Verdict Values for Female Decedents (average and median wrongful death values for women)

Value of Wrongful Death Auto and Truck Accident Cases in Maryland (average settlements and verdicts)

Value of Personal Injury Cases in Washington D.C. (District of Columbia settlements and verdicts)

Valuing Cases in Virginia (settlements and verdicts in Virginia)

Personal Injury Verdicts Across the Country (personal injury verdicts in your state)

Products Liability Verdicts (national averages by type of products liability case)

A recent study found that juries are more likely to side with doctors in medical malpractice cases. The study indicated that juries tend to be skeptical of people and their lawyers who sue their doctors and that most medical malpractice trials result in a verdict for the medical doctors. (See yesterday's Maryland Personal Injury Lawyer Blog post for one more reason why they may be skeptical.)

The author of the study, Philip Peters Jr., of the University of Missouri-Columbia School of Law, concluded that juries treat doctors favorably, "perhaps unfairly so," and are more likely than even fellow physicians to defer to a doctor's opinion.

Peters found that most medical malpractice suits are decided in favor of the health care provider and that the cases that go to trial tend to be the weakest ones, since those with strong evidence usually settle before trial. In an examination of win rates in New Jersey, North Carolina, Florida and Michigan, Peters found that 27% to 30% of filed medical malpractice suits end in a plaintiff's verdict, the lowest success rate of any type of tort litigation. In Maryland, the number is reportedly 8%.

Does this mean that medical malpractices case in Maryland are 3 or 4 times more difficult than in the cases listed in this study? No. Most likely, the difference can be explained by the fact that Maryland medical malpractice insurers, to their credit, make reasonable offers on case that should be settled.

The Maryland Personal Injury Lawyer Blog took an unscheduled vacation as we ramp up for two mediations later this month and I also had a trial in Baltimore City earlier this week. Ironically, given this blog's recent obsession with first party bad faith in Maryland, the trial was an uninsured motorist auto accident case with first party bad faith implications. Classic scenario: $20,000 Maryland Automobile Insurance Fund (MAIF) underlying policy with a $100,000 in uninsured motorist coverage with USAA. MAIF did what they usually do: spend a bunch of money wasting time and defending the case but, in the end, putting up their policy. USAA offered an additional $17,000, arguing that our client's injuries were merely "soft tissue" in spite of the fact that it was obvious the woman suffered from a permanent injury. It was an easy call for USAA who knew, regardless of its obligation to its insured, that the maximum recovery was $100,000 ($80,000 of which they would have to pay). A Baltimore City jury awarded exactly $200,000 which was reduced to $100,000.

The Maryland Daily Record wrote a good article on the new first party bad faith law, using my jury verdict as an example. You can find it here.

Thanks for the emails wondering where I have been. I'm back and the Maryland Personal Injury Lawyer Blog will have a new post tomorrow.

According to a recent Jury Verdict Research report, plaintiffs on motorcycles receive higher awards for collisions with cars or trucks than bicycle plaintiffs. Their analysis, based on plaintiffs’ verdicts rendered from October 1999 to October 2006, examines motorcycle and bicycle categories involving collisions with other vehicles, objects and pedestrians. The study found that the award median for motorcycle accidents was $73,700 compared to $40,912 for bicycle plaintiffs.

I assume the difference is based on the fact that motorcycles generate greater speeds that lead to more serious accidents. Interestingly, Jury Verdict Research provided average verdicts with this data, which it rarely does. To underscore the difference between median and average, the average motorcycle accident case was $561,065 and the average bike accident case was $500,353.

Metro Verdicts Monthly's graph this month is non-fatal settlements and verdicts in Maryland, the District of Columbia, and Virginia in premises liability cases since 1987. The median non-fatal premises liability case in Maryland was $69,000. The recoveries in Virginia and the District of Columbia are slightly less, $50,000 and $65,000, respectively.

As I have said before, I love seeing these different verdicts in Maryland each month. It is always interesting to see different lawyers that you know and see what kind of cases they had and how they fared. What diminishes the value of Metro Verdicts, in my mind, is the turn around time. I have a case in this month's edition that I tried 6 months ago. It does not diminish the quality of the information but in the Internet era, it is not quite as enjoyable to read stale news.

Metro Verdicts Monthly's graph this month is wrongful death median settlements and verdicts in Maryland, the District of Columbia, and Virginia. The average wrongful death settlement in Virginia and the District of Columbia is $800,000 and $575,000, respectively. Maryland lags behind at $500,000.

Maryland verdicts usually compare favorably with Virginia. Why the disparity? Virginia's cap on non-economic damages is limited to medical malpractice. Maryland's cap applies to all personal injury cases.

A federal jury in New Orleans found that Merck's Vioxx was not responsible for a heart attack suffered by a Utah man. Merck had won two previous federal cases and lost the third. In state court it has won three and lost three. Jurors decided a fourth in Merck's favor, but the judge later ordered a retrial.

Plaintiff's lawyers had thought this trial was one of the better Vioxx cases. But, as often happens, the trial uncovered some interesting new evidence on cross-examination by Merck's lawyer: the Plaintiff realized he had not taken Vioxx for several days before his heart attack on July 25, 2003.

Rather than focusing on other reasons that likely caused Mason to have a heart attack -- his age, his sex, a relative who had a heart attack -- Merck's lawyer Phil Beck, an extremely good lawyer, focused his closing argument on the four days without Vioxx. "Vioxx cannot cause a heart attack if it is not in the system," he said. "Vioxx is out of the system in a few days. Once it's out of the system, it cannot have any effect."

As I have said all along, plaintiffs are going to lose most of these cases on specific causation. General causation is hard to dispute - the evidence is overwhelming that this was a bad drug and Merck covered up the risks associated with Vioxx. But the trick for plaintiff is to show that the harm was actually caused in an individual case.

Metro Verdicts Monthly came out today with a new statistic on the trial and settlement value (they are lumped together) of fractured hip cases. The median settlement values for fractured hip cases are:

Maryland: $160,000

District of Columbia: $200,000

Virginia: $115,000

As a point of comparison, Jury Verdict Research last year provided the following data on hip fractures:

Award Median: $175,000

Award Mean: $435,581

Probability Range: $80,978-$382,500

Award Range: $1,690-$7,888,900

In this data, the gap between the median and the mean is striking. Nine percent of hip fracture awards are over $1 million, which certainly inflates the average.

I think many personal injury lawyers who have not handled fractured hip cases might be surprised by the how high these verdicts and settlements are in Maryland and around the country. This is probably because fractured hips often occur in our elderly population with significant trauma. But if you are injured in a car or truck accident, there is rarely a legitimate pre-existing condition argument that can be made.

A hip fracture from auto and truck accidents can be a permanent, life altering event for some patients, oft leading to impaired balance and gait and loss of functional independence. The value of a hip fracture case may also depend upon the type of hip fracture, which directs the type of intervention that is required. Only one-third of fractured hip cases require surgery, but that number is much higher for hip fractures suffered in car and truck accidents.

When a personal injury lawyer settles a hip fracture case, the lawyer should advise the client of the risks associated with settling a hip fracture case. Insurance companies will often seek to settle a hip fracture case quickly, knowing a refracture or a secondary hip fracture is a good possibility in these cases. The client has to make the call, but the lawyer should remind the client that a settlement is final and while the expectation of potential future injury may be factored into the settlement, the value of a hip fracture case will increase if there is a refracture or secondary fracture.

A Jury Verdict Research study found that the median compensatory award for personal injury trials in Minnesota is $32,468. To the delight of Minnesota personal injury lawyers, the study also found that plaintiffs recovered damages in 67% of personal injury cases that go to trial. Both of these statistics are higher than those in Maryland. The median compensatory award in personal injury trials in Maryland is $12,813. Specifically, in auto accident cases in Maryland the median verdict is $11,277. This data is arguably misleading. Many small claim type cases find their way to Maryland juries because defense lawyers in personal injury cases in Maryland have the ability to remove cases to Circuit Court if the plaintiff seeks more than $10,000 (but less than $25,000, which qualifies it for District Court), which they frequently do, primarily to increase the burden on Maryland personal injury lawyers.

A Florida jury awarded a Lee County (Naples) woman $8.25 million in a medical malpractice case against her plastic surgeon after she lost both her breasts in a botched breast augmentation surgery.

Naples surgeon Dr. Luciano Boemi attempted to give the 28 year-old Plaintiff a breast lift and augmentation in 2003. During the surgery, the Plaintiff's blood supply was cut, resulting in her breasts turning black and forming a hard, dry tissue. Incredibly and tragically, thirteen surgeries were required to remedy the Plaintiff's open wounds and to try to reshape some of the tissue that remained on her breasts.

For whatever reason, Florida juries are the most generous in the nation. The median personal injury verdict in Florida is $100,000, according to Jury Verdict Research. No wonder personal injury lawyers and medical malpractice attorneys flock to Florida. In contrast, the median verdict in Maryland is $12,813. While I have indicated in the past that I think this statistic is somewhat what misleading because of the number of small claims type personal injury cases in Maryland that Plaintiffs' lawyers end up trying in Maryland Circuit Court, it does not make up the nearly tenfold difference between Maryland and Florida. If there are any Florida personal injury lawyers reading this, I would be interested in your thoughts on why juries are far more generous in Florida accident and medical malpractice cases.

The New York Times reported yesterday that according to the Insurance Institute for Highway Safety, auto manufacturers have made significant progress in improving the safety of drivers and their passengers in frontal and side-impact collisions but still lag behind in making cars safe in rear-end accidents.

In rear-end tests that were conducted, two of the best selling cars, the Toyota Camry and the Dodge Caliber, were rated marginal, the second-lowest of four possible scores. All six models tested earned at least an acceptable rating in frontal tests, but only the Kia Optima, a mid-size sedan, was given a passing grade in rear-end crashes.

Rear-end impacts are the most common type of accident, making up millions of insurance claims every year (most for property damage). Rear-end accidents are the stepchild of safety efforts from car makers. To some extent, this is understandable as frontal and side crashes are far more likely to result in serious injuries or fatalities. This is also reflected in settlement and verdicts. The average rear-end accident case resolves for only $8,715 over the last six years, according to Jury Verdict Research, compared to $30,000 for head-on collisions. Still, you would like to see the auto manufacturers make improvements in protecting occupants in rear-end collisions as well because they do, while less frequently, cause serious and fatal injuries.

A fear I have is that automakers are going to start making smaller cars as demand for fuel efficient cars increases. While I am all in favor of reducing our dependence on foreign oil, the death toll on our nation's highways is going to increase dramatically when we are all driving Yugos.

An Arkansas woman whose husband died of smoke inhalation and burns in a camper fire resulting from a refrigerator defect settled her lawsuit against Norcold Refrigerators and a camper dealership for $7 million last week.

The cause of the fire was cracked tubing in the camper's Norcold refrigerator, which resulted in the leaking of flammable hydrogen. Norcold apparently knew of the potential fire hazard as early as 1999 and notified federal officials that it would be recalling more than 40,000 refrigerators. Much like the “FDA approved the drug” defense I have been blogging about in recent months, Norcold contended that it followed federal regulations in conducting the recall.

But the Plaintiff did not receive a recall notice until 6 years after Norcold knew of the defect. Norcold could have found the owners of all the campers by checking their Vehicle Identification Numbers (VIN), but it did not do that until late 2004, too late to get notice out to the Plaintiff. In a tragic irony, Plaintiff received the recall notice seven months after the accident.

Plaintiff’s attorney in this case deserves a lot of praise. This is the only lawsuit ever filed against this company for this product, although you can be virtually certain it has killed many others (and there are still 12,000 of these refrigerators that have not yet been recalled). Many of the best products liability and medical malpractice cases our lawyers have had were accident cases like this, the cases that other lawyers rejected because they really did not want to turn over a lot of stones to figure out what really happened. But it is the turning of these stones that brings about not only justice for the individual Plaintiff, but it further provides the checks and balances that are required to make sure that companies keep their products safe. You can bet next time Norcold has a problem with one of its products that creates a public safety risk, they will respond with a lot more haste and diligence than they did in this case.

Merck scored a much needed victory on Thursday when Atlantic City, New Jersey jurors decided that the drugmaker's Vioxx painkiller did not cause a 68-year-old woman's heart attack.

Vioxx was once a $2.5 billion-a-year blockbuster for Merck, who now faces more than 13,000 Vioxx-related lawsuits. Merck now has a 3-4 record after seven trials. An eighth trial is under way in Los Angeles.

My take on this litigation: Merck was painfully close to not only civil but criminal negligence in putting and keeping this drug on the market. But it does not make individual cases a slam dunk by any stretch because the vast majority of cases have significant causation problems. Reading between the lines of the facts in this New Jersey case, the jury found that the plaintiff, 68 years old, would have suffered the same heart attack even if she had not taken Vioxx.

Interestingly, the jury found that while Merck failed to warn the plaintiff about the heart risks of taking Vioxx, it did adequately warn her doctor of such risks. In Maryland and in most states, under the learned intermediary doctrine, the manufacturers of pharmaceutical drugs and medical devices are discharged of any duty of care to patients by providing warnings to the prescribing doctors.

This rule strikes many people as antiquated in 2006 because pharmaceutical companies are now ferociously marketing to the end users, as evidenced by turning on the television or opening up a magazine. New Jersey became the first court to accept this argument in Perez v. Wyeth Laboratories, Inc., 734 A.2d 1245 (N.J. 1999), ruling that advertising prescription drugs directly to end users “alters the calculus of the learned intermediary doctrine” such that the rule does not apply.

Apparently to provide some sense of balance, the court further ruled that if the pharmaceutical company complied with FDA advertising, labeling, and warning requirements (see my blog post on this issue), the rebuttable presumption will be that there was no failure to warn. A rebuttable presumption is a hard thing to overcome but the New Jersey jury in this Vioxx case apparently felt that the Plaintiff’s lawyers overcame this rebuttable presumption.

The Maryland Court of Appeals has adopted the learned intermediary doctrine. But in a case that sounds similar to Perez, the court in Rite Aid v. Levy-Gray, 391 Md. 608 (2006) declined earlier this year to extend the doctrine to those cases in which a pharmacy is disseminating information concerning the properties and efficacy of a prescription drug. Specifically, the Maryland Court of Appeals found that the learned intermediary doctrine does not preclude a pharmacy from being held liable when it provides a package insert that could provide the basis for such a warranty as a matter of law. In other words, a pharmacy may not use the learned intermediary doctrine as a shield. The logic of this case leads me to believe that the Maryland Court of Appeals rule similarly to the court in Perez.

Going back to the Vioxx litigation, because I think the plaintiff's pharmaceutical lawyers have smartly pushed the best cases first, it pains me to say that I predict that Merck's winning percentage will continue to increase over time. This is not because Merck was not negligent, but because of the difficultly in linking their negligence to heart disease, a common problem among individuals who were taking Vioxx because it is typically older people who needed Vioxx to combat arthritis. Because heart disease is so prevalent in older people, juries are going to struggle to determine whether the cause of a stroke or heart attack was from Vioxx or because of heart disease unrelated to the Vioxx.

Back in March I reported data I found in Metro Verdicts Monthly of interest to personal injury accident lawyers in Maryland on the value of fractured shoulder injuries. Earlier this month, I reported on a Metro Verdicts Monthly chart that provided the median settlement value for rotator cuff injuries. In the new issue that I was handed just 10 minutes ago, the subject is ankle fractures. I have spent a lot of time dealing with foot and ankle surgeries from a medical malpractice case I had against the New England Patriots and their team doctors that settled last year. Over the course of that case, I probably met with a half dozen of the best foot and ankle surgeons in the country.

One of these elite foot and ankle surgeons is Mark Myerson, who is the treating doctor in a Baltimore City case I have set for mediation tomorrow. Dr. Myerson was at Union Memorial Hospital, but left a few years ago and is now associated with Mercy Hospital. Both hospitals are among the best in the world for foot and ankle surgery.

The median settlement values for ankle fracture injuries are:

District of Columbia: $66,000

Maryland: $88,000

Two points of interest in this data: first, don't get an ankle fracture in Virginia. It is amazing to me how low these Virginia verdicts are. Second, it is interesting that Maryland ankle fracture verdicts are 33% higher than Washington, D.C. verdicts, given that the Maryland median was much less than Washington, D.C. for both fractured shoulder and rotator cuff verdicts.

In 2002, Federal Tort Claims Act News (who knew there was such a publication?) wrote an article about how Jury Verdict Research Case Evaluation Software was predicting the values of verdicts in a particular slip and fall case with an ankle fracture. In this case, the jury predicted a probable verdict of $117,600 with only a 33% chance of success on liability (maybe a tough slip and fall case on liability).

As a point of comparison, it provided the following JVR nationwide analysis of ankle injuries:

Award Median: $91,925

Award Range: $1-$5,250,804

All of this is of interest for my mediation tomorrow. But I think my case is worth four or five times more than this median for the following reasons:

1. Venue in Baltimore City;

2. Attractive, intelligent, personable, young woman;

3. Accident occurs as Plaintiff is driving back from re-enlisting in the U.S. Army;

4. Head-on collision with a commercial truck;

5. Permanent injury;

6. Plaintiff’s expert is one of the top foot surgeons in the U.S.; and

7. Defendant has no expert.

I would have a hard time drawing up a better set of facts. Accordingly, I think my client is entitled to a recovery that far exceeds these median settlement values. Unfortunately, I think that when you have great intangible facts like some of these are, it is difficult to settle the case. If the case does settle, usually intangibles do not crystallize in the defendant's personal injury lawyer’s mind (or more importantly, the insurance adjuster's mind) until just before or during trial.

On Friday, I gave a small diatribe about the foolishness of allowing a doctor’s medical malpractice lawyers, after getting hit with a $28 million medical malpractice verdict, to bring back the jurors to essentially cross examine them on their answers during voir dire. I explained that Maryland lawyers would not be able to pull this type of stunt under Maryland law and why I thought Maryland’s law prohibiting the losing lawyers from bringing back jurors after a trial was prudent. I wrote that I hoped the Florida court would treat this case similarly to the approach a Maryland court would take.

Of course, this was a jinx. The Associated Press reports that Florida Circuit Court Judge Debra S. Nelson did order the jurors back to court, questioning them about their answers during voir dire. After two hours of argument after this questioning, the judge threw out the $28 million verdict and ordered a new trial because three of the jurors did not respond affirmatively to the Plaintiff’s malpractice attorney’s question during voir dire about prior lawsuits in which they were involved.

Ironically, these jurors did not fail to disclose claims they had brought, making them appear more plaintiff-friendly. Instead, they withheld information about lawsuits that had been filed against them. How the withholding of this evidence would prejudice a doctor accused of malpractice is a mystery. Believe me, if the doctor’s lawyers had been told during jury deliberations exactly what these jurors had withheld, these lawyers would not have thought for a second that their chances of prevailing had diminished in even the slightest way.

Again, I think the message this sends to both plaintiffs’ lawyers and defense lawyers is if you do not like the outcome and the stakes are high enough, attacking the jurors after the verdict may be an all-purpose palliative to the bite of an adverse verdict. In fact, in a case like this, there is no reason the lawyers could not have researched the jurors after they were selected, determined that they would not forthright during voir dire, and then put that information in their pocket pending the outcome of the case. This second-guessing of jurors by allowing them to be questioned about their voir dire responses is bad law in my opinion. I am glad Maryland has some protections to avoid what I think is an injustice in this case.

I generally support the wide discretion judges are given in these kinds of situations but I hope this verdict is reinstated on appeal.

Rene Stutzman of the Orlando Sentinel reported this week the post-trial tactic of the defendant’s medical malpractice lawyers after a $28 million verdict in Florida. The tactic: if you lose the trial, put the jurors on trial. Defense attorneys say three of six jurors lied during jury selection, and are seeking to bring the jurors back into court to explain themselves. As I explain below, I think this request, if allowed, is a blow to the integrity of the jury system we have in this country. Certainly this request would be denied under Maryland law.

The medical malpractice action in the Florida case stemmed from a minor surgery performed by Dr. Robert Bowles, an obstetrician-gynecologist, for minor incontinence. Plaintiff alleges that Dr. Bowles negligently performed the procedure and, as a result, she cannot urinate naturally. Instead, the Plaintiff must catheterize herself twice a day for the rest of her life. In other words, we are talking about incredibly serious damages in this case.

Still, Plaintiff’s medical malpractice attorney told reporters that he had offered to settle the case for $275,000 before trial. Instead, the doctor and his attorneys decided to roll the dice, and they got hit with a $28 million verdict. Florida has a cap on pain and suffering damages so she will not receive anything resembling $28 million in even the best case scenario. (But would you take $28 million for this woman’s injury?)

The doctor’s attorney now alleges that three jurors lied during voir dire, claiming that two jurors did not disclose that they had been involved in lawsuits and a third did not mention all of the lawsuits she had been involved with in the past. Most of these lawsuits, however, involved unpaid debts in which she was a defendant.

One of our personal injury lawyers tried a case recently where the defense lawyers in post-trial arguments claimed juror misconduct. These lawyers contended that although a voir dire question was asked in the present tense, the juror could not have possibly understood that the question was in the present tense because the question was presumably read quickly. The logic of the argument is that although the juror inadvertently answered the question honestly, she had malice in her heart because she must have understood the question in the present tense. Why? Because she could not possibly have understood the question posed "in an instant during voir dire." In other words, the defense attorneys claimed that while she told the truth, she must have meant to lie.

I was flabbergasted. Can you imagine making this argument with a straight face? Calling this argument ridiculous seems drastically understated. The Anne Arundel County trial judge summarily rejected the argument. Defendant’s attorney actually noted an appeal but shortly thereafter agreed to pay the judgment.

Continue reading "Juror Misconduct Allegations in Florida Medical Malpractice Case" »

Jury Verdicts Research reported earlier this month on a $600,000 settlement a Philadelpia lawyer obtained on behalf of a truck driver whose primary injury was the loss of his sense of smell. The truck driver claimed a design defect in a milk truck because it failed to provide a grab handle on the rear driver's side of the truck.

Not to make light of this gentleman's injuries, but I have an awful sense of smell which, generally, I think comes in handy. I think the truck driver's lawyer got him an excellent verdict for a design defect products' liability case for this injury when liability was in dispute.

Back in March I reported data I found in Metro Verdicts Monthly research that I thought would be of interest to personal injury lawyers in Maryland on the value of fractured shoulder injuries. Yesterday I received the new issue of Metro Verdicts Monthly that provided the median settlement value for rotator cuff injuries in Maryland, Virginia and the District of Columbia:

Washington D.C.: $136,200

Virginia: $ 26,250

Maryland: $ 45,000

The rotator cuff is a composite of four major muscles and tendon fibers that blend with the upper half of the capsule of the shoulder joint. In the experience of our lawyers, most rotator cuff injuries in car and truck accidents occur in side collision or "t-bone" accidents.

Of course, rotator cuff injury is a relative term with varying degrees of severity, from strains of the rotator cuff that result in minor limitation in the motion of the shoulder to severe ruptures of multiple muscles or tendons.

Interestingly, in 1999 Jury Verdicts Research provided data for rotator cuff injury cases that went to trial. They found that the median final demand was $85,000 and the median final offer was $25,000. This is a pretty wide range, obviously, perhaps underscoring the difference amongst the lawyers involved as to the severity of the rotator cuff injury. The study also found that the median award was $50,000, which leads one to believe that both the Plaintiff's and Defendant's lawyers were often way off the mark on the real value of the case.

Related Posts:

Rotator Cuff Verdicts Nationally (value of rotator cuff injuries nationally shows values of rotator cuff personal injury cases are on the rise)

After my blog entry about New Hampshire verdicts a few days ago, I received a few emails from Maryland lawyers asking if I knew the data for Maryland plaintiffs. In Maryland the accident victim is successful at trial in 83% of auto accident personal injury cases. This is a very high success ratio given the fact that among the remaining 17%, many are brought by lawyers that did not understand what factors were required to bring a successful personal injury case. My wife, Lisa Miller, used to defend cases as an attorney for Nationwide Insurance. She handled too many cases where there was a fatal flaw in the case: the Plaintiff did not have an expert, the liability argument would be illogical, etc. I have to think these types of cases make up a decent portion of the 17% of the auto accident cases in Maryland that are not successful. In personal injury cases generally in Maryland, which includes medical malpractice, slip and falls and other non-vehicle accident cases, the average falls to 69% (as opposed to 55% nationally).

In terms of value, the data is also interesting. Nationally, the median jury award in a personal injury case is $38,461. In Maryland, the median compensatory award in personal injury trials is far less: $12,813. Specifically, in auto accident cases in Maryland the median verdict is $11,277. I think this data is a bit misleading because too many small claims type cases end in front of juries in Maryland. Defense lawyers have the ability to remove cases to Circuit Court if the plaintiff seeks more than $10,000 (but less than $25,000, which qualifies it for District Court) which they frequently do, primarily to torment plaintiffs' personal injury lawyers.

The story in medical malpractice cases if very different. Plaintiffs prevailed in only 8% of medical malpractice cases in Maryland. This number is misleading because the best malpractice cases typically settle. The last data I saw on average medical malpractice settlements in Maryland came from The Daily Record on April 28, 2006. This article quoted T. Michael Preston, executive director of MedChi, the Maryland state doctors' association, who said that the average paid medical malpractice claim in Maryland was $387,077 in 2003. Although his source was Medical Mutual, the leading medical malpractice insurer in Maryland, I do not have any reason to quarrel with this data. According to Jury Verdicts Research, the average jury award for successful medical malpractice cases is $808,772. I have never seen data that breaks these settlements or verdicts by county but I think we can assume that the larger jury awards in medical malpractice cases in Maryland are in Baltimore City and Prince George's County.

Jury Verdict Research reports that the median compensation award in personal injury trials in New Hampshire is $45,000. This is much higher than the national median of $38,460. Also, New Hampshire personal injury victims are more likely to prevail at trial. New Hampshire plaintiffs obtain a recovery in 63% of cases that go to a verdict, as opposed to the nationwide recovery probability of 55%.

In Maryland the median personal injury verdict is only $12,813. Why don't our personal injury lawyers pack up and leave Maryland for New Hampshire? Besides the cold weather, Maryland's jury verdicts are distorted by the defense lawyers from State Farm and Allstate, the two largest auto insurance providers in Maryland, who routinely "bump up" District Court claims to Circuit Court. In other words, if a personal injury lawyer in Maryland files on behalf of a client in District Court for more than $10,000, the insurance company's lawyers may remove the case to Circuit Court, requiring a jury trial. This practice leads to small claims type cases being tried by Maryland juries, leading to smaller median awards. Among cases in Maryland that belong in Circuit Court, we believe the median verdicts are much higher than $12,813. Our firm has never received a jury award less than $36,000.

Last week, I wrote about Metro Jury Verdicts and Jury Verdict Research and their reports of specific cases and the data that they provide to attorneys. Our office received today West's Jury Verdicts which is very similar to Metro Verdicts Monthly. This monthly publication from West provides details of jury verdicts, settlement, and arbitration awards in Maryland courts. I like the design, it is easier on the eyes and it provides far more facts that Metro Verdicts. The one thing missing that I really liked in Metro Verdicts is the demand and the offer are not included. Still, it is an interesting read and the West Publication appears to be reporting on cases that were not in Metro Verdicts (and vice versa).

I have been writing a bit lately about Metro Verdicts Monthly Verdicts. There really is a wealth of information in this publication. This week, I reconnected with a defense lawyer I have not spoken to in years who I used to workout with in Howard County at the Columbia Athletic Club. (Interesting, this month's publication reported that this attorney's client got hit with a $199,396 verdict in a Prince George's County personal injury case where the defendant only offered $90,000.)

Every month, on the cover of Metro Verdicts is a graph of some kind comparing settlement amounts in different regions or different types of injuries. This month, they had a fascinating graph comparing fractured shoulder injury verdicts and settlements in Maryland and Virginia since 1987, omitting defense verdicts. The average fractured shoulder verdict or settlement in Maryland was $154,800 whereas, in Virginia, it was only $52,500. This is a remarkable disparity that I think would surprise a lot of personal injury lawyers in Maryland and Virginia. It is the first comparison of any kind that I have seen that comparing verdicts in Maryland and Virginia. I would like to see more data and comparisons like this. It would be invaluable to personal injury lawyers, especially in cases where the auto accident occurred in one location but the personal injury lawsuit could be rightfully filed in one of several jurisdictions.

A Hawaii jury yesterday awarded $5.6 million in a personal injury medical malpractice case to a man who had a screwdriver placed in his back instead of a titanium rod. The facts in this medical malpractice case are incredible. The surgeon, Dr. Robert Ricketson, who lost his medical license in Oklahoma and Texas amidst allegations of drug use before coming to Hawaii, began surgery on a patient and realized after two hours of surgery that the titanium rod that was to be inserted in the patient's back was nowhere to be found. Dr. Ricketson chose to use a screwdriver instead of the titanium rod. A nurse who was assisting Dr. Ricketson urged him to wait because a titanium rod was being sent from another island. He asked the nurse to leave the operating room. Not surprisingly, the screwdriver snapped in just few days. Three failed corrective surgeries later, Arturo Iturralde, a Baptist minister, was rendered a parapalegic.

Under Hawaii's comparative fault system, the jury found that Dr. Ricketson was 65% liable for medical bills and pain and suffering damages and the hospital was 35% responsible. The hospital was found responsible for letting Dr. Ricketson perform surgery at their hospital in spite of the evidence that he was not a responsible physician and because the nurse was also blamed for the failure to make sure the rod was ready before the surgery began. The total award for compensatory damages was approximately $2.2 million. The jury also awarded $3.5 million in punitive damages against Dr. Ricketson.

Realistically, the patient's estate and wrongful death beneficiaries (he died in 2003, two years after the surgery) beneficiaries will collect $770,000 from the hospital. Dr. Ricketson was uninsured and acted as his own attorney at trial.

Interestingly, this case would turn out much differently in Maryland. First, there would not be a punitive damages award given the lack of actual malice which is required in Maryland for a punitive damages claim. See Owens-Illinois, Inc. v. Zenobia , 325 Md. 420 (1992). It is unlikely a Maryland medical malpractice attorney would even plead punitive damages in a case like this. In contrast, Hawaii's punitive damages standard is merely whether the "defendant has acted wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations." AMFAC, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 138 (1992).

But in this case, the plaintiff's medical malpractice lawyer willl recover only $770,000 for his client because of Hawaii's comparative negligence law does not allow for joint and severable liability. In Maryland, a jury would have found that both parties were "substantial contributing causes of the injury" and the plaintiff's lawyer could choose which Defendant he/she wanted to collect from for the injured party's recovery. Accordingly, the Plaintiff would be able to recover, had this case occurred in Maryland, approximately $900,000 (limited by Maryland's cap on pain and suffering) from the hospital instead of $770,000

Last month, I wrote a bit about Jury Verdict Research, which conducts studies of jury verdicts around the country. A recent Jury Verdict Research study of truck accidents from January 1996 to January 2005 found that truck accident victims recover damages in 60% of personal injury trials and receive a median compensatory award of $90,000. The average truck accident case involving a disc injury, usually a herniated disc, was $122,532. In contrast, the average median verdict in a head-on truck accident case the study was $532,034.

It is always interesting for a personal injury attorney to hear about trial verdicts in accident cases. We subscribe to Metro Verdicts Monthly which summarizes primarily personal injury accident cases in Maryland, the District of Columbia, and Virginia. Basically, Metro Verdicts Monthly calls the attorneys involved in the case and tries to get as the key details of the case from them. One of the most interesting facts is the pretrial demand and offer. (Sometimes, the lawyers cannot even agree on that which does not make you wonder how the case went to trial!) Metro Verdicts Monthly will also - for a fee, of course - conduct research of similar cases to your facts. Our accident lawyers have used this on a few occasions in fighting motions from defense lawyers to reduce the jury's verdict in personal injury cases.

Another interesting resource that looks more to individual cases is Jury Verdict Research which looks not only at individual cases but collects data from as many personal injury cases as it can around the country. In 2005, they reported on jury awards in accident cases. Nationally, it found that the median jury award in a personal injury case was $38,461 and the nationwide plaintiff recovery probability was 55 percent.

In Maryland accident cases, the median compensatory award in personal injury trials was $12,813. The good news for injury victims and Maryland accident lawyers is that the injured party prevailed in 69% of Maryland accident cases (as opposed to 55% nationally). Specifically, in Maryland auto accidents, the injury victim prevailed on liability at trial in 83% of the cases. The average jury award in Maryland car accident personal injury cases was $11,277. This study did not consider the jury verdicts by Maryland county but certainly the larger jury awards in Maryland are in Prince George's County and Baltimore City.

From reading Metro Verdicts, I suspect that one of the reasons Maryland verdicts are relatively low compared to the national average is because so many Baltimore accident lawyers are filing 10-104 cases (where you do not need a medical expert to testify that the medical bills and treatment were reasonable and necessary, but the plaintiff is limited to $25,000 in damages). These cases should be in district court but most Baltimore personal injury lawyers fear filing suit in Baltimore City District Court in small cases because the verdicts are traditionally very low in comparison to other state district courts in Maryland.

A Prince George's County undercover narcotics police officer who shot and killed an unarmed college student, who he chased from Prince George's County, Maryland to Fairfax County, Virginia, was held responsible for his wrongful death yesterday by a jury that awarded $3.7 million to the family of the man who was killed.

Terrell N. Roberts III, the personal injury attorney for victim's family, noted after the verdict that neither the state of Virginia nor the Justice Department filed charges against the officer, nor did Prince George's County police find any wrongdoing by the officer. Yet a Prince George's County jury looking at the same facts found very differently.

These types of claims are nothing new in Prince George's County, who has paid $4.6 million in jury verdicts and out-of-court settlements in lawsuits in 2004. In the last 5 years, not including this verdict, the county paid $16.3 million in jury awards and settlements alleging excessive force or other forms of misconduct or negligence by P.G. County police officers.

Our lawyers have had many dealings with Prince George's County police in auto accident and other personal injury cases and our experience has generally been very favorable. Still, it is obvious that a small number of police officers in P.G. County are costing the county a ton of money. I am sure that the 98% of the officers who are doing their jobs as they should would love to have a share of the $16.3 million that P.G. County has dolled out over the last five years.

On January 14, 2006, a Clark County, Nevada jury awarded $14.1 million to a truck crash victim who was killed by a drunk driver in 2001. The verdict was divided between $4.1 million in compensatory damages and $10 million in punitive damages to be paid by three corporate defendants: Terrible Herbst Inc., ETT Inc., and Herbst Supply Inc.

Rosa Delegado, a 58-year-old grandmother, was getting into her car when the defendant truck driver hit her with a large industrial truck. Delegado was pinned against her car and run over. Ms. Delegado's family's attorney filed a negligent supervision personal injury civil lawsuit against Terrible Herbst, which operates 80 convenience stores and gas stations in Nevada.

The Plaintiff alleged that the defendant driver had a history of drinking and driving that apparently did not offend the sensibilities of his employer Terrible Herbst. In fact, incredibly, a company supervisor testified that he was not concerned by the fact that the truck driver defendant had come to work smelling of beer. He further testified on another occasion that the truck driver and another temporary worker asked him for permission to drink beer at lunch. In spite of this, the supervisor testified that he did not necessarily have reservations about this man driving a truck for Terrible Herbst. Unbelievable.

I did not sit through the trial, of course, I am just reading the media's account of this truck accident case from the perspective of a truck accident lawyer. But if these facts are as presented, it is hard to argue that punitive damages are not appropriate. In this case, the jury readily agreed to the tune of $10 million.

In Maryland, punitive damages are impossible to recover in a personal injury case like this one because the plaintiff must demonstrate that the defendant acted with "actual malice." Actual malice is "evil motive, intent to injure, ill will or fraud." Setting the bar even higher for plaintiff's personal injury attorneys in Maryland bringing a punitive damages claim, actual malice must be demonstrated by clear and convincing evidence.

The purpose of punitive damages in a case like this is to modify the defendant's behavior. It is extremely difficult to muster empirical evidence to evaluate whether punitives have a deterrence effect because there is no systematic reporting of punitive damages. Even if there was such data, there are so many other variable involved that could skew the data. The death penalty deterrance debate is a perfect example. So the debate among lawyers, judges, and legislators continues on anecdotal evidence.

Personally, I think this issue is very different from the death penalty question because corporations do act rationally: the seek to maximize profits and avoid risk. Accordingly, they act in their self interest to take steps to avoid risk. People considering capital offenses are rarely rational and certainly not risk adverse. In my opinion, punitive damages are necessary in Maryland when corporate defendants show reckless disregard for the safety of people like Rosa Delegado.