Maryland Injury Lawyer Blog

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" »

The Drug Recall Lawyer Blog has a post today supplementing/rebutting Mark Herrmann's blog post on the Drug and Device Law Blog on the Daubert issues in the Bausch & Lomb eye infection cases. Mark posted his blog at 5:00 a.m. and John responded a few hours later.

I don't think the Obama campaign had a better rapid response.

Our law firm is not involved in the Bousch & Lomb eye infection cases.

Zinc is common enough—it is even a dietary requirement. Humans should typically ingest between eight and eleven milligrams per day (often through red meat, nuts and grains). However, lawsuits alleging zinc toxicity of denture creams are showcasing how too much of a good thing can be harmful. A study in Neurology reports that some patients who used denture cream were exposed to at least 330 milligrams of zinc daily—far more than the maximum daily allowance of 40 milligrams. This and other studies form the basis for many of the existing denture cream lawsuits.

There are approximately eleven denture cream lawsuits filed against Glaxo Smith Kline and Proctor and Gamble for their denture cream products—Poligrip and Fixodent. The denture cream lawyers generally allege that the denture cream manufacturers failed to appropriately warn consumers about the risks of zinc toxicity. One defense is predictable—the plaintiffs did not use the product in accordance with the instructions. However, that defense lawyers' common argument - blame the victim - ignores the fact that a large portion of the denture-wearing population (34 million Americans) have somewhat ill-fitting dentures. The only way to keep them in place is a generous application of denture cream. This is common knowledge. Those people were never warned of the dangers of using denture cream beyond the instructions. From a consumer standpoint, a product that goes in your mouth must be safe to use. Who among us would think of a problem like zinc toxicity from denture cream?

So, here’s the science: zinc in denture cream is absorbed through the gums. High levels of zinc inhibit copper absorption, which can cause a copper deficiency and anemia (weakness). It can also reduce the function of the immune system. Among the more serious effects are paralysis and nerve damage. Symptoms can include numbness or tingling, and lack of balance. One plaintiff claiming injuries from denture cream, a man from east Texas, can barely walk, and only with support.

Though reducing zinc intake to normal levels can help, oftentimes the damage is not reversible, and there is no cure. Victims injured by denture cream may have extensive medical and other needs, which they cannot afford on their own. For example, they may need wheelchairs, transportation, and help working around the house or performing normal activities. Regardless, these are significant injuries that severely limit victims’ independence.

We recently added a sixth lawyer, John Cord, to our team at Miller & Zois. You can read his biography here.

John has started his own blog, the Drug Recall Lawyer Blog. This blog is directed a product liability lawyers handling drug and medical device case in Maryland and around the country. If you find it useful, add it to your list of favorites (as well as the Maryland Injury Lawyer Blog, of course).

The 1st Circuit Court of Appeals wrote a helpful opinion for product liability lawyers who get the name of the defendant wrong when filing just before statute of limitations expires. The court elevated substance over form in finding the the claim "relates back" under federal law.

The case involves an incredibly tragic auto accident. A 1987 Mercedes-Benz 300SDL parked on an inclined street in Puerto Rico began rolling downhill and crushed and killed a six-month-old child. The plaintiffs' product liability lawsuit alleged that design of the Mercedes-Benz caused the child's death, alleging a "gallimaufry" of product liability theories against Daimler-Chrysler Corporation.

Continue reading ""Relates Back" Lawsuit Reinstated: New 1st Circuit Opinion" »

We can can hold hands and agree with the Drug and Device Law Blog on few things related to drug and medical device litigation but this is one: we hate Medicare liens and the government is making life even more difficult for parties on both sides of the v. As usual, they have a very complete post laying out this issue, focused on the defense lawyers' perspective but much of it applies to plaintiffs' lawyers as well.

The FDA has warned users of weight loss drug Hydroxycut to stop taking the popular weight-loss product because of risk of severe liver damage. The Hydroxycut recall focuses us all for the zillionth time on FDA’s inability to sufficiently police so much as a high school prom. But nothing is ever done about it.

The FDA is officially in the "Britney Spears Zone" for just about everyone. If they accidentally approved heroin capsules tomorrow, the New York Times and the Washington Post's editorial sections would light up for a week. Then it would be back to business as usual and nothing would change.

Our lawyers are investigating Hydroxycut recall injury claims subject to this recall for patients with liver failure or jaundice. If you want to speak with a Hydroxycut lawyer about potential lawsuits involving Hydroxycut, call 800-553-8082 or click here for a free Hydrroxycut lawsuit case evaluation.

The FDA announced that it will now require Botox and its progeny to provide black-box warning. The FDA said the labeling is necessary to warn doctors and patients that Botox has potentially fatal complications, including problems with swallowing or breathing. The FDA has identified at least 225 reports of medical problems among patients treated with Botox and similar drugs.

If there was a stock available in 2004 called "The FDA Will Eventually Require Black Box Warnings for Boxtox But It Will Take Awhile", I would have bought a ton of it. Unbelievably predictable.

The Washington Post has an article providing more detail on Study 15, the Seroquel study that saw the same fate as many pharmaceutical company drug trials do that the companies don't like: they stick them in their glove compartment - even deeper than I would stick my parking tickets in college. The chickens came home to roost on my parking tickets about 9 months later. AstraZeneca has had this study stuffed away for 12 years.

For the folks that made a ton of money off Seroquel and have since left AstraZeneca, it all worked out just fine, didn't it? Is it that same warm fuzzy feeling I got when I learned that many of the guys that caused the AIG debacle got huge bonuses? No, the feeling is different for two reasons.

Continue reading "Seroquel Study 15" »

New England Journal of Medicine has an editorial from doctors who support federal legislation that would give injured patients the right to sue medical device manufacturers in state courts.

Sometimes I have a case against multiple defendants where each defendant would be better served by making a stronger case against the other defendant. But, as if by Pavlovian reflex, the defense lawyers will look to find common ground and bend over backward to avoid pointing to each other to the detriment of their clients.

I think the same Pavlovian reflex causes doctors to oppose the Medical Device Safety Act of 2009 that overrules Medtronic v. Riegel. This is rooted in doctors' disdain for medical malpractice lawsuits, which leads to the reflex that anything that helps injury victims bring lawsuits is a bad thing. Because barring lawsuits against medical device manufacturers will lead many injured plaintiffs to blame their doctor, the result will be more medical malpractice lawsuits. Preemption will also undermine, as doctors writing in the New England Journal of Medicine have previously opined, the confidence that doctors and patients have in the safety of drugs and devices. If doctors cannot trust that the device manufacturers have to make products for which they will be held accountable, doctors are going to resist using medical devices that are efficacious. If Medtronic v. Riegel remains the law, it hurts patients and, ironically, medical device manufacturers.

Wyeth v .Levine!!!! Plaintiffs' lawyers have seen drug (and medical device) injury victims take punch after punch. But in a huge win for patient safety, the Supreme Court upheld in a 6-3 ruling today that in a Vermont woman's verdict against Wyeth for injuries she suffered after taking one of the drug maker's medicines. Justice John Paul Stevens, writing for the majority, said FDA oversight of drug labeling doesn't prevent the filing of state tort claims.

It is a little bit pathetic that this is a huge win. Gee, the law for the last 90 years is not going to be completely uprooted. Yippy! But the Drug and Device Law Blog predicted victory and those guys have been on the winning side of most everything lately. (A guest Drug and Device Law blogger also broke down the justices individually and predicted victory but I cannot find the post to link to it.) So I'll admit I was more than a little scared. Now, I'm thrilled that even this conservative Supreme Court found decisively in favor of the Plaintiff.

The one downside: a loss may have mobilized Congress to act. This win in Wyeth v. Levine could ironically slow progress on a bill to overturn Medtronic v. Riegel.

You can find an article on the verdict here and comments on Justice Alito's dissent here. You can find the Supreme Court opinion in Wyeth v. Levine here.

The Supreme Court's ruling in Medtronic v. Riegel has largely been ignored by broadcast media. But I found a clip from MSNBC's “Countdown with Keith Olbermann” on preemption and President Bush's efforts until the bitter end to push for preemption.

Keith Olbermann's portrait on these things is not exactly "fair and balanced." I think it is a mistake not to present more fully both sides of the argument because it is hard to change minds without presenting all of the facts. But I'm just thrilled to see some broadcast media discussion - albeit MSNBC - of the perils of preemption.

This is the bill introduced in the Senate last year to overturn Medtronic v. Riegel. A similar bill was introduced in the House of Representatives about six months ago. If you look at the Senate bill, you will note that one of the cosponsors was the junior Senator from Illinois. Is President-elect Obama still with medical device victims?

In Bruce Springsteen’s song Jungleland, the police wrongfully shoot and kill the song’s hero. Yet his girlfriend just “sets out the bedroom light” and the “poets down here don’t write nothing at all.” Little did I know in high school that this song was going to relate to a mass tort medical device claim like the Medtronic defibrillator lead litigation.

Continue reading "Medtronic Lawsuit" »