Maryland Injury Lawyer Blog

The South Carolina Supreme Court overturned a $31 million verdict in a Ford rollover case stemming from a catastrophic accident in 2001 that caused brain damage to a 12 year-old boy. This was a difficult case. A mother was driving with four children who were not wearing seat belts and the mother took her eyes off the road and swerved to get back on the road. The question was whether the design of the Ford Bronco was a substantial contributing cause to the child's injuries.

Obviously, a jury found that it was and sent a powerful message to Ford: $16 million in actual damages and $15 million in punitive damages.

The South Carolina Supreme Court overturned the verdict for a lot of reasons. I won't go into all of them but there are two reasons set forth for the court's reversal that I think are of particular interest.

First, the court found that it is improper for lawyers in closing arguments "to arouse passion or prejudice." The court cites these statements made during the plaintiff's lawyer's closing argument as improper:

1. "This is how Ford looks at this. That little bit of thirty people being killed every year didn't matter. Those thirty people, those thirty extra people getting killed in a year didn't matter to them because it was just a little bitty number."

2. "It does matter about those people getting killed. Those thirty people do count. Those thirty people--that's thirty more people that got killed that year. If you expect these vehicles to last about twenty years, that's six hundred more people getting killed using this vehicle as opposed to a Chevy S-10 Blazer. That's serious."

3. "And that doesn't count the paralyzed people, the quadriplegics, the people with serious injuries, the thousands of people that have been in these events because of this rollover propensity of this vehicle that they knew about, and they knew it since day one but they chose profit over safety every time because they looked at it as numbers. They didn't look at it as lives, as people."

4. "I submit to you that the evidence is that they did it because they thought it was a little, small number. . . . [T]hey did not look at it as thirty lives a year[], they didn't look at it as six hundred lives. That's how they should have looked at it, but that was not how they did it."

5. "They got together at the highest levels of Ford Motor Company and they made a judgment that rather than delaying and improving the Bronco II, they were going to sell the vehicle as it was and that they were going to risk people's lives and they were going to risk serious injuries like we have here today. They were going to risk people's brains."

6. "Jesse Branham is here today with a brain injury and six hundred other people, or however many it is, lost their lives, and numerous others have brain injuries or are paralyzed, quadriplegic, have extremely serious injuries. We believe that you should tell Ford Motor Company what you think about this kind of thing."

The court found these improper because they relied on evidence that was inadmissible, because it asked for damages for harm to others, and because it improperly inspired the jury to act on passion as opposed to reason. All of these arguments are flawed.

If the evidence is inadmissible, then that is the basis to overturn the verdict. There is no need to tie it to an improper closing. Presumably, this would be true in any case where evidence was inadmissible.

Additionally, the court believes these statements led to asking for damages for harm to others. But the attorney is asking for punitive damages. We don't have punitive damages in Maryland without proof of actual malice - which eliminates 99.999% of cases like this from being considered for punitive damages. But if you are asking for punitive damages, it seems to me that you have to give the context of why there was a risk of harm to more than just the plaintiff. (Plaintiff's lawyer also got into evidence the salaries of certain executives at Ford which does sound pretty incredible. But, again, our law firm has never handled a punitive damages case so I really can't speak to the standard for admissibility in these cases.)

Continue reading "$31 Million Rollover Verdict Overturned" »

Ask any accident lawyer about the use of statistics in valuing personal injury accident cases, and you will get an almost universal answer: they have little or no utility. Yet I've never looked away from average verdict data and I've never known a personal injury lawyer who did. Even if you conclude it is useless, you can't help but be curious.

Jury Verdict Research published a 10 year study on knee injuries. Our law firm has gotten pretty good results in knee injury cases. The study confirms this is for pretty good reason. The average knee injury verdict is $173,552. But with more serious knee injuries, that average jumps higher. The average cartilage and ligament damage jury verdict is $347,831. Conversely, a knee strain verdict averages $70,055.

The Maryland Daily Record published a three part series over the last month on mediation in Maryland personal injury cases, a piece I wrote with the Honorable Clifton J. Gordy . You can read the articles on-line but you have to be a subscriber to the Daily Record to read the entire article.

• Part I of Mediation in Personal Injury Cases
• Part II of Mediation in Personal Injury Cases
• Part III of Mediation in Personal Injury Cases

The first line in this editorial adequately summarizes the problem that leads to unsafe drugs and medical devices:

What would your reaction be if the results of a football match were reported as 5:0 by one of the teams and as 3:1 by the other team?

This editorial underscores a point that I think the "FDA approval is the gold standard" crew completely ignores: it is painfully easy to rig drug testing to get the desired results at any stage of the research and testing process. Most of the injuries were at the end of the study? Change the end point. Most of the adverse effects were in patients with blonde hair? Take them out of the study.

Okay, that is a little bit of hyperbole. But you get the point. No doubt there are a lot of good, decent people at the world's largest pharmaceutical companies and most make the right decisions. There are also some pharmaceutical executives who would shoot their own parents in the head before not pushing what they believe will be a profitable drug to market. There is no doubt about this either. By the time the lawsuits that will, in the end, kill most of the profitability hit, that executive will have gotten a promotion out of that division (or off to another company). We can debate how often this happens, to be sure. But we really can't debate that this does happen.

A woman has sued Starbucks for serving “unreasonably hot” tea, causing her second degree burns. Reuters has the article which includes reader comments. All of the commentators are rushing to judgment, claiming either the woman is pond scum (95%) or that Starbucks was "clearly negligent." Adding to the fun, the Plaintiff does not have a European name. So we get bonus racism and xenophobia in addition to the inaccurate conclusions of law. It is a win-win situation for all.

Gun to my head, I suspect this is not a legitimate claim. But who knows? Did Starbucks know or have reason to know that it was serving a liquid that was much hotter than industry standards require?

The immediate rush to judgment (people, didn't Johnnie Cochran teach us anything?) and people's abilities to make breathtaking leaps of logic/faith with absolutely no evidence is always disconcerting.

• Eric Turkewitz provides more commentary

The Drug and Device Law Blog has a guest post on the status of the Medical Device Safety Act of 2009, a bill that has been introduced in Congress that would overturn the Supreme Court's holding in Riegel v. Medtronic preempting state common law claims challenging the safety of FDA approved medical devices.

The blog can be summarized as follows: Congress is doing nothing.

Bayer, the manufacturer of Yasmin and Yaz birth control, is slowly moving in the right direction by strengthening its warning about blood clots. There is no plan to update the warning with respect to gallbladder injuries. Plaintiffs' lawyers in the Yaz/Yasmin lawsuits contend that the progestin contained in the pills, drospirenone, is causing serious health problems in otherwise healthy women, including deep vein thrombosis (blood clots in the deep veins), strokes, heart attacks and gallbladder disease.

The FDA informed Bayer in a letter earlier this month that it is responsible for updating its warning on a key issue in the Yaz lawsuits: whether Yaz causes blood clots. Still, Bayer is not putting a warning on Yaz/Yasmin that is going to clear its duty-to-warn obligation in future blood clots cases (and, again, this warning has no impact on the Yaz gallbladder cases). The new Yaz/Yasmin labels make clear Bayer is not backing all the way down: "The serious side effects of the pill occur very infrequently, especially if you are in good health and are young."

Bayer is in an interesting spot with Yaz/Yasmin. These birth control drugs combined were Bayer's most profitable drug last year. Yaz and Yasmin are also Bayer's biggest seller and the leading birth control pill in North America. I strongly suspect Bayer realizes a strong warning means less prescribing doctors which means less profits. But if Bayer ignores the growing evidence that Yaz and Yasmin are more dangerous than other comparable birth control pills, they are risking lawsuit payouts that exceed the generous profits they now enjoy. Nothing short of a Yaz recall is going to stop the flow of future lawsuits.

Paul Luvera discusses a tough issue for Plaintiff's lawyers: do you clue the jury in during your opening statement as to how much you are going to ask for in closing? I struggle with this and often opt for a middle ground. I lay out the foundation of what I'm going to ask for: medical bills, wages, and the formula I think is appropriate (x per day for the rest of her life). This way, I'm getting them used to the idea without having to spit out a number without any evidence.

As Paul points out, a one size fits all rule is difficult because each case depends on different facts. One critical question has to be considered: is the cap an issue? If what you have is clearly a cap case and minimal or no economic damages, you can dial back a bit on the damages argument which might help you avoid the risk of losing credibility. Because every time you ask for money - which is what a plaintiffs' lawyer does by definition - you do lose some measure of credibility with a jury.

One of the issues in this post - raising the damage amount in voir dire - is not of much interest to Maryland personal injury lawyers because our voir dire is so ridiculously limited.

Paul also points out that David Ball feels pretty strongly about putting up a number in opening. Which is reason enough to consider it in every case.

Yesterday, the Maryland Daily Record published the first of a three part series I wrote with retired Judge Clifton J. Gordy (now a mediator and arbitrator) on mediation in serious personal injury and wrongful death claims. The article is for both plaintiff and defense lawyers looking to make mediations as productive as possible. Take a look at yesterday's article and look in coming editions for the final two parts.

A Maryland District Court has denied a class action on behalf of Maryland residents who own certain model years of Ford Explorers, Mercury Mountaineers and Ford Windstars.

This is not a personal injury lawsuit; plaintiffs' lawyers claimed front seats in the class vehicles are defective because they are prone to collapse rearward in moderate speed rear-impact collisions. In fact, the proposed class action would exclude everyone who has actually suffered an injury.

Plaintiffs' suggested class is individuals who own vehicles that cannot withstand 20,000 inch-pounds of torque without deforming backwards. (Admittedly, I don't fully understand this but let's proceed on pretending that I do.) Judge Benson Everett Legg denied Plaintiffs' request for a class, disagreeing with Plaintiffs' lawyers' assertion that the complexities of twenty-three different seating system configurations can be resolved through a standard as simple as one safety benchmark. The opinion acknowledges that design changes that make a car safer in one accident might make the car less safe in another. In other words, the court's message to the Plaintiffs' lawyers was "it is a little more complicated than that."

Judge Legg also made an interesting point on a collateral estoppel issue that personal injury victims might face in bringing a product liability claim after an accident caused by this alleged defect:

Additionally, around the country, consumers have brought personal injury suits involving the seatback rigidity issue, winning some and losing others. If the instant case were to proceed as a class action and the jury returned a verdict for Ford, a class member who was subsequently injured in a class vehicle would be collaterally estopped from claiming that the vehicle’s seats were defective because they lacked sufficient rigidity. Such a class member, who has relatively relatively little to gain from the instant class action, might be precluded thereafter from prosecuting a substantial personal injury claim.

In other words, if you are in the class and Ford wins the consumer class action lawsuit, you might later be estopped from bringing a product liability claim for your injuries because the issue of whether the product was defective was already litigated between the parties. Very interesting point. Judge Legg leaves open the issue of certifying a more narrowly defined class. But this problem will still exist no matter how narrowly the class is defined.

I get the idea of these types of claim, I really do. Ford is required to make safer vehicles because someone is minding the store when they make a defective product. This improves public safety. Still, I am uneasy with the idea of a class action to fix a defect for everyone but the people that actually get hurt. It sounds like the only ones who really profit in that case are the lawyers. Is this necessarily a bad thing in the big picture? No. But it does not exactly give you a warm and fuzzy feeling either.

You can find the full opinion here.

The Maryland Court of Appeals found today in a 5-2 opinion in a lead paint case that an individual member of a Maryland limited liability corporation (LLC) can be personally liable for torts personally committed on behalf of the LLC.

The case, Allen v. Dackman, is a classic Baltimore lead paint case, another saga in the tragedy of children suffering brain injuries as the result of ingesting chipping, flaking, and/or peeling lead-based paint.

The owner defendant sought refuge from personal liability because his acts were on behalf of his creatively named LLC, Hard Assets. The trial judge granted summary judgment. The Maryland Court of Special Appeals, in an opinion by Judge Zarnoch, affirmed:

No member shall be personally liable for the obligations of the limited liability company, whether arising in contract, tort or otherwise, solely by reason of being a member of the limited liability company. Thus, appellants cannot succeed in imputing the alleged negligent acts of Hard Assets to appellee.

The Maryland Court of Appeals disagreed, finding that a person can be held responsible for the torts committed on behalf of the LLC, finding that the lead paint landlord could be personally liable for Plaintiffs' injuries because a reasonable jury could find that he was an “owner” of the property, as the Housing Code defined that term.

I did not find any of this earth shattering because this has always been Maryland law for corporations. However appealing it might be to me personally as a member of an LLC, the logic of giving LLC members additional protection for torts does not make sense to me.

So Plaintiffs get another shot at putting on a case against the landlord individually. This is going to be an interesting case to try to a jury. Children claiming brain damage are almost invariably sympathetic but tenants in this case were not actually paying tenants. So there could be some "how can you sue the guy when he was not even the landlord?" sentiment from the jury (assuming there is no successful motion in limine to exclude that evidence).

The take home lesson here for landlords is that you cannot have property, even vacant or property that is not rented, that has chipping, peeling, or flaking paint. The lesson for doctors, lawyers and every other profession in this case: get insurance.

Brian Brown argued the case for Plaintiffs; James R. Benjamin, Jr. (Whiteford, Taylor, and Preston) argued on behalf of the Defendant.

You can find the full opinion here.

DePuy Orthopaedics, a division of Johnson & Johnson, is removing its DePuy ASR metal-on-metal hip replacement system that reportedly has a high failure rate. Our lawyers are now investigating these claims around the country.

Experts are questioning why DePuy did not recall the DePuy ASR hip replacement system because it had a design defect that made it difficult to implant the hip replacement device properly. Specifically, orthopedic doctors question whether ASR cups were not designed too shallow. Like Zimmer implants, there is a real question as to whether the lure of profits pushed DePuy to offer a "better product" without properly testing whether the device would be safe and effective.

According to the New York Times, the F.D.A. has received about 300 complaints on the ASR involving patients in the United States who received it since 2008. The vast majority of these 300 patients who received ASR hip implants had to have the device replaced, requiring another difficult operation for patients.

If you believe you may have a potential DePuy hip implant lawsuit, our lawyers are now investigating these claims. Call 800-553-8082 or get a free online consultation.

Gauging the next “move” based solely upon how much the other side has budged- “tit for tat” negotiations with no bearing on one’s own case evaluation is another common mediation mistake. It is understandable that negotiators and mediation participants desire proportionality and reciprocity in adjusting demands and counteroffers. The problem is that many adjusters think that plaintiffs have no ceiling on the amount that they can demand, whereas defendants can never offer anything less than zero. For this reason, arguments that, “We’ve come down by $100,000 so you need to come up by $100,000” often fall on deaf (adjuster or defense lawyer) ears.

Defense lawyers often set up mediations better than personal injury lawyers. The defendant's lawyer will call you and ask for a demand. You decide to be reasonable. So when you show up at the mediation, the range is between reasonable and zero. That is the wrong psychology to settle a case.

The best way to address this problem: if defendant puts you in this game, don't be above the game with your reasonableness. Your opening demand under this dynamic should mirror the defendants’ maximum exposure. Most states now have caps on non-economic damages. Add up your economic damages: past and future medical expenses, past and future lost wages, loss of earning capacity, vocational training and/or rehabilitation. Add that number to the amount allowed under the applicable non-economic damages cap. This should be a good approximation of the maximum exposure on the claim. With any luck you will be right around the amount of the reserve the insurance carrier has set for the claim. This should help in estimating the settlement value of the case on the continuum between maximum value and zero. This will let you calibrate your demands to where you want to end up on a case, not necessarily to match the other side amount for amount.

This tactic only works in a case where it is possible a jury would give such an award. Not likely but "best day possible." If you are demanding the cap in a soft tissue injury claim, you are also sending the wrong message. Similarly, when you demand $5 million in a case where your cap is $2 million, you are sending the same "I'm not exactly sure what I'm doing" message.

Sean Wajert's MassTort Defense Blog (c/o Torts Prof Blog) has an interesting post on a new opinion by the Iowa Supreme Court on the question of whether you can admit subsequent remedial measures in cases that sound both in negligence and strict liability.

The Iowa court found that Plaintiff's design defect and failure-to-warn claims involving the jack pin used on a boat trailer sound in negligence, rather than strict liability. Interpreting an Iowa law that, like Maryland's law, is substantially similar to Federal Rule 407, the court held that Rule 5.407’s carve out for strict liability in tort and breach of warranty claims does not apply to designed defect claims, but is intended only for product liability claims alleging a manufacturing defect.

Mr. Wajert supports the court's holding in his blog post:

Plaintiffs, and misguided academics, often assert that manufacturers will choose to make improvements to a product even if those improvements are admissible because the producer would otherwise risk litigation and negative publicity. But there is a substantial body of criticism of that notion, which overstates the relevance of subsequent remedial measures, appears to have an over-focus on mass product producers (when the rule applies to everyone), and invites confusion of the jury, both by diverting its attention from whether the product was defective at the relevant time to what was done later, and by facilitating, in the minds of jurors, an inappropriate equation between subsequent design modification and an admission of a prior defective design.

There is a lot to love about this quote. I like how Mr. Wajert uses "misguided" to modify academics but not plaintiffs. Academics are given a gentle pass for their foolishness. Can product liability lawyers be misguided too?

Continue reading "Subsequent Remedial Measures: New Opinion from Ohio" »

The Yaz lawsuits pending around the country in federal court were consolidated yesterday in MDL-2100, Yasmin and YAZ Marketing, Sales Practices and Products Liability Litigation. John Cord's Drug Recall Lawyer Blog provides all of the details of the transfer. You can find an explanation of what the Yaz MDL means to pending and future Yaz lawsuits here.

For more information on the Yazmin/Ocella/Yaz lawsuits, visit our Yaz attorney claim information center which provides a general overview the Yaz lawsuits, an update on what plaintiffs' Yaz lawyers are doing in these cases, an explanation of the how the Yaz lawsuits will proceed, the latest medical research on Yaz, and medical journal information on the potential association between Yaz and gallbladder injuries.

On Friday, the Maryland Court of Special Appeals reversed a $3 million jury verdict in Cecil County v. Dorman. That statement overmagnifies the ruling. The jury verdict of $3 million is misleading because Maryland’s Local Government Tort Claim Act limited the actual verdict to $200,000. But the legal issues presented in the case are of interest to Maryland accident attorneys who are looking for creative solutions to limited insurance coverage in catastrophic accident cases. This case closed down one potential defendant: the utility pole that has been there forever should not have been there when my client hit it.

The case involved a motorcycle accident that occurred near the intersection of Nottingham Road and Pulaski Highway (Route 40). Plaintiff suffered severe injuries which required the amputation of his right leg. The defendant driver’s negligence was not in serious question, but claims were maintained against Verizon and Delmarva Power and Light Company with respect to the location of the utility pole that Plaintiff had hit, which had exacerbated Plaintiff’s injuries. Plaintiff’s lawyer argued that the location of the pole was unsafe. Plaintiff's accident lawyer further argued that is Cecil County's duty to maintain its roadways in good repair and free from hazards or defects was ongoing so the fact that the pole had been put in 40 years go was no defense. Accordingly, there is a duty imposed on Cecil County when a utility pole is in such close proximity to the road that it was an "accident waiting to happen."

Continue reading "Maryland Motorcycle Accident Verdict Overturned" »

The Yaz and Yasmin litigation is just now starting to take off, with at least 11 lawsuits around the country. Lawyers evaluating Yaz/Yasmin cases need to pay particular attention to (1) the injuries; (2) the defendants; and (3) viable claims.

Continue reading "Yaz Lawyer: Information for Attorneys Handling Yaz/Yasmin Lawsuits" »

The Courier-Journal in Louisville, Kentucky has an article on an amazing lawsuit in Kentucky in yet another derivative claim of the fen-phen litigation. Plaintiff claims that her lawyers told her that her echocardiogram showed that her heart was "like a tire that might burst” as a result of the use of fen-phen.

The claim made by a former paralegal of the law firm handling the case is beyond stunning: medical tests were altered to show more heart damage than expected and destroyed test results that were not consistent with plaintiffs’ lawyers’ theory of the case.

The law firm did what a lot of plaintiffs’ law firms do in product liability cases where there is a chance of significant recovery: they offer plaintiff a medical test at no charge which is characterized as an independent medical exam. In this case, the test was an echocardiogram.

As many good stories do in 2009, this one also involves sex and (audio) tape. Plaintiff’s lawyer is accused of telling his client that she needed to “spend some time on [her] back” with him (later in the conversation he said he was kidding), that he wanted to touch her breasts, asking her how many people she had had sex with, and the like. Plaintiff taped the conversations because – get this – her husband did not believe her. The article gives the impression that Plaintiff never really voiced objection to these comments.

Who do you root for in a case like this? Not the lawyer who, on his best day, acted inappropriately in the case. Bar counsel in Kentucky has put on hold its evaluation until after the case, but eventually these claims are going to be heard. But it also hard to root for a Plaintiff who claims the lawyer and his law firm damaged her "mentally and emotionally" and "caused her a great deal of humiliation.” Exactly how much money are allegations like this worth? There is no question that the allegations are very serious. But there is an incredibly important difference between making allegations of serious misconduct and allegations of serious injury.

A hospital did not breach a duty of care as a matter of law to a police office who was injured responding to a traffic accident allegedly caused by a just-released colonoscopy patient, Massachusetts' highest court has ruled, affirming the trial court below.

The police officer responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, Plaintiff's police car was hit by another car, causing what were apparently pretty serious injuries. The pedestrian involved in the accident to which the Plaintiff was responding had earlier that day undergone sedation after a colonoscopy at Brockton Hospital. Plaintiff's theory of the case was had the hospital provided an escort for the patient/pedestrian, he would not have had to respond and the accident would not have occurred.

Specifically, Plaintiff argued that a duty of care existed under two theories to back door the foreseeability problem: (1) a "special relationship" the hospital had with the patient and with Plaintiff, (2) a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by "impaired" patients.

The case generated some attention. Amicus briefs filed by the Massachusetts Academy of Trial Attorneys in support of Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., in support of the hospital.

The Massachusetts high court found that both theories were not distinctions from the duty and foreseeability problem in finding that a hospital owes a duty of care to a nonpatient third party to prevent a sedated patient from causing injury after the patient leaves the hospital.

Whether negligence extends to "an innocent third-party bystander" was recently decided in Maryland in Gourdine v. Crews. In that case, the family of a man killed in an auto accident brought a lawsuit against Eli Lily claiming that his death was caused by a diabetic who blacked out while under treatment with two insulin medications.

Continue reading "New Massachusetts Opinion on Duty and Foreseeability" »