Baltimore City settled a wrongful death and survival action by Freddie Gray’s family for $6.4 million. The criminally unfair Maryland Local Government Tort Claim Act would have capped these claims at $400,000. So Baltimore City settled for a whopping $6 million more than the maximum value of the case. Said another way, the settlement […]
Our primary focus at Miller & Zois is to further the interest of our clients by maximizing the value of their injury or wrongful death claims. But it is also an absolute joy when we can be a part of changing Maryland law that helps all injury victims get a fair shake in their claim. We did this last week when the Maryland Court of Special Appeals gave a victory for our client and justice in Peeler v. FutureCare Northpoint, a wrongful death nursing home case.
Nursing Home Arbitration Agreements
At stake in Peeler v. FutureCare Northpoint was the breath of an agreement to arbitrate any claims that arise between a resident and a nursing home. I’m Our client’s mother in Peeler entered a nursing home after she had femoral-femoral bypass graft at Johns Hopkins Bayview Medical Center. She was asked upon arrival to sign an arbitration agreement. Clearly, this was not a moment of great clarity, right? This is not uncommon. Most decisions you make when entering a nursing home are made in crisis mode resulting from a precipitous decline in health. So in the midst of this emotional powder keg, the incoming resident or their family must sign a million documents. There is no time to plan or weigh options. I’m a lawyer. There is no way I’m reading all of those documents in that situation. I’m certainly not feeling free to negotiate with the nursing home. I’m in the most unequal bargaining position imaginable. I just want — or I wanted my loved one to get — the needed care to get through the days ahead.
I’ve complained to you (all 14 of you) for years about Maryland’s ridiculous refusal to adopt dram shop laws to allow lawsuits against bars and restaurants who knowingly serve drunk people who then go out and hurt of kill someone. A divided Court of Appeals says the Legislature should take the first step. The legislature bows to the National Resturant Association lobbyists because there is no dead kids lobbying group that contributes money to Maryland General Assembly elections (except for MADD which does an awesome job with few resources).
The court did take a baby step in the right direction this month when it issued an opinion in two cases involving underage drinking that creates a path for victims and their families to bring civil lawsuits against adults who serve children alcohol.
This is a big step forward. The Maryland Court of Appeals has previously found that social host liability is a near relative of a Dram Shop liability. So it is not hard to imagine the court extending the reasoning of these cases as a logical move towards dram shop laws. It is also noteworthy that Judge Sally D. Adkins wrote the opinion. Judge Adkins wrote an amazing dissent in the last big dram shop case that came before the court, arguing that the law had to be changed because too many Marylanders were unnecessarily dying because drunk people are being overserved in our bars and our restaurants. It could just be me but I think this is a sign that Judge Adkins’ thinking will soon carry the day.
Here is an interesting look at the first 20 medical malpractice lawsuits filed in Maryland in 2016 with a brief summary of plaintiff’s allegations in the case.
- Hall v. Genesis Healthcare, LLC (filed on January 4, 2016): This is a bed sore case in Prince George’s County. Genesis Healthcare fails to take the proper precautions to prevent bed sores from developing on woman’s body. Woman dies, and her two surviving sons bring a wrongful death lawsuit.
- Stanford v. United States – (January 5, 2016): This is a cancer misdiagnosis lawsuit in U.S. District Court in Baltimore. Biopsy performed with an inadequate specimen. A better specimen would have revealed Stage I cancer that is usually curable by surgery. Stage III cancer discovered three years later. Prognosis is death within five years.
I have always had an interest in spoliation of evidence. Spoliation is the negligent or intentional destruction or alteration of evidence or the failure to preserve evidence for relevant to future, and sometimes even pending, litigation. This is not an issue we see often in car accident cases but we do see it in truck accident and product liability cases and, to a less extent in medical malpractice claims.
The Maryland Court of Appeals took a look at this issue in Cumberland Insurance Group v. Delmarva Power. This case involved the treatment of spoliation of evidence when the physical object destroyed is itself the subject of the case. The context is a little boring. This is a battle between an insurance company and a utility company so, in my world, this is a bad guy on bad guy battle. The destruction here was also negligent which is a lot less sexy than willful destruction.
Anyway, the claim centered on a house fire of a home insured by Cumberland Insurance Group. After the fire, two of Cumberland’s experts inspected the house, as well as the meter and meter box that were removed from the scene by the Fire Marshal. Based on its experts’ inspections, Cumberland believed the meter and meter box were the source of the fire and sought a subrogation claim against Delmarva Power, the electric company for the property. Cumberland received an estimate for demolition of the property and issued a check to the homeowner that appeared to include the cost of demolition. Although Cumberland sent Delmarva notice that Cumberland intended to file a claim against Delmarva for subrogation, the notification did not include information regarding the schedule for demolition. Subsequently, Delmarva did not send any personnel to inspect the property before demolition occurred, less than sixty days after the fire.
I’m passing along the latest information on Maryland transition to e-filing.
In 2014, the Maryland Judiciary launched the Maryland Electronic Courts (MDEC) system – a project that modernizes current case management systems and streamlines court processes to make case filings more convenient for litigants. Here are two updates
APRIL 4: New E-filing interface
Trump would not take this position. He is, by any definition, a celebrity. Many celebrities have a history of using lawsuit first recourse in settling disputes.
Yesterday, Trump threatened a lawsuit if Ted Cruz does not take a campaign ad down that is predominantly made up of Trump’s own words footage in a 1999 interview saying he’s “very pro-choice.” Cruz has, with good reason, mocked the viability of such a claim, giving the sound bite that Trump has been bringing frivolous lawsuits his entire adult life.
Trump certainly has filed a number of unbelievable lawsuits. Here are a few highlights:
- He sued two brothers for using the Trump name, even though their last name was Trump. Reportedly, these guys were worth more than ten times what Trump is worth, but somehow they were using the name to piggyback off of his success. The suit went nowhere.
- He sued his ex-wife for $25 million for talking about their relationship in spite of a confidentiality agreement. He might have technically been on the right side of this. But you get the point.
- Bill Maher joked that he would pay Trump $5 million if he could prove that his father was not an orangutan. Trump produced his birth certificate and sued for $5 million when Maher did not pay. This one has a real elementary school vibe to it, doesn’t it? Trump eventually dropped the case.
- He sued the Chicago Tribune for $500 million after the paper’s architecture critic, wrote he thought the Chicago’s Sears Tower would remain its world’s tallest building title even though Trump has made a plan to build a taller building on the East River in Manhattan. Reportedly, Trump did not even hire an architect for the building. A federal court judge dismissed the case, ruling that you cannot sue someone for their subjective opinions.
An amendment to Rule 1-311 went into effect on January 1st. The amendment requires that for all pleadings filed electronically with an electronic signature must include the attorney’s client protection fund number.
I cannot find the amended version of this new rule online. I highly doubt Judge Barbera is going to drive down to your office to compel compliance. But it would be a smart idea to start complying now. At some point, someone is going to argue that the pleading was not valid without the lawyer’s client security trust fund number. Do you win that battle? Yes. But you lose even when you won; when you are fighting a fight that should not have been fought in the first place. I also don’t want the clerk’s office calling and screaming at me. It never pays to make those people mad.
Rule 1-311 is the rule that requires an attorney signature on every pleading.
You’ve met your client, executed your fee agreement, gathered your facts and put your file together. Is it time to consider a settlement? It depends on the case.
Be Clear on Notice and Filing Deadlines
First and foremost, check the statute of limitations. If you have a statute problem, all bets are offer. If you have less than six months, file suit.
You can always serve the defendant, send a copy to the claims representative with whom you’ve been dealing, and agree to take no further action during a fixed time period, during which it is understood that settlement negotiations will be addressed. Also, be sure early on, when opening your file, whether there are any statutory notice provisions with which you must comply pre-suit. Sometimes they are obvious — clearly county-owned vehicle — and sometimes you are never going to be able to know unless you file suit and get defendant’s discovery responses.
You can always serve the defendant, send a copy to the claims representative, and agree to take no further action during a fixed time period, during which it is understood that settlement negotiations will be addressed. Also, be sure early on, when opening your file, whether there are any statutory notice provisions with which you must comply pre-suit. Claims against state and local governments typically have provisions such as these, which require specific notice to be given to designated officials. If you are an inexperienced lawyer or a pro se plaintiff, read that last sentence carefully. Because “Oh, come on, I’m sure it got to the right person” is not going to fly.
Ted Cruz has made a lot of enemies. I cannot remember a legitimate candidate for president who seemed to be as personally disliked as Ted Cruz. This quote in the Washington Post describes how he was viewed when he attended Princeton: “You either didn’t know Ted Cruz, you hated him, or you were David Panton.” That’s harsh.
What does this have to do with this post? Nothing, really. I just thought it was worth pointing out.
Cruz is very proud that he was on the front line in the tort reform battles, a point he will probably make in South Carolina – while I write this post. He defended appellate challenges to the 2003 Texas law that allows Texas doctors to commit malpractice as often as they please without any limitations. He was an author of George W. Bush’s “Let’s turn a blind eye to our federalism platitudes and install nationwide tort reform.”
After these accomplishments, Cruz gave being a private lawyer a spin. Even Cruz’ enemies who will now agree he is a fantastic appellate lawyer. He did what you would expect him to do in private practice: help big companies fight each other and squash the little guy. Also a personal injury lawyer, Ted Cruz defended, on appeal, two mammoth plantiffs’ verdicts in New Mexico that involved $110 million in damages between two plaintiffs. Keep in mind this was after he passionately fought against personal injury victims in Texas and throughout the country.
Why would such a committed tort reformer agree to represent victims? Cruz made clear that if he was going to get involved the “money had to be right.”
Baltimore City settled a wrongful death and survival action by Freddie Gray’s family for $6.4 million. The criminally unfair Maryland Local Government Tort Claim Act would have capped these claims at $400,000. So Baltimore City settled for a whopping $6 million more than the maximum value of the case. Said another way, the settlement was 16 times the cap for personal injury and wrongful death claims had this case taken the standard path and been heard by a Baltimore City jury.
High profile cases mold public perception in Baltimore and throughout Maryland about our civil justice system. People form impressions on how well the system performs when placing a dollar amount on personal injury and wrongful death cases.
On some level, Freddie Gray is a Baltimore specific McDonald’s coffee case. It has now been 24 years since Stella Liebeck spilled coffee on herself at a McDonald’s drive-through in New Mexico and that case continues to inform prospective jurors on how personal injury cases actually work. Freddie Gray may leave a similar legacy in Baltimore. What will that legacy be? What misimpressions will juror carry into the jury box as a result of this case? I believe there are unintended consequences to this settlement that will be felt for years.
I think these are the Freddy Gray takeaway messages: