Three years ago when Reptile came out – the book that has revolutionized how many plaintiffs’ attorneys approach a tort case – I wrote what I thought was an interesting post about the use of religion at trial based on the research provided in the book. The premise was that the rules of Scripture are power rules that guide the thinking not only of the pious but command authority as the “ultimate rules” for not only the faithful but the agnostic and even atheists.
The Maryland Court of Appeals issued an important opinion that is helpful for plaintiffs’ lawyers, albeit attorneys who are not on top of their game when it comes to getting their case ready for trial. I just got back from vacation last week and found it interesting enough to put down the 1,000 things that I have to do and read it.
Business organization law is not my wheelhouse. It is not something I blog about often. But the Court of Special Appeals just issued a new opinion regarding personal liability for directors of unincorporated businesses that I think does have implications for tort lawyers (although probably not my firm).
This breach of contract case involves the PRC (Pikesville Recreation Council), an unincorporated, nonprofit organization. From what I can gather, PRC provided recreational and educational programs to residents in the Pikesville area and was funded mostly by the registration fees that the organization charged (think community-wide soccer tournaments, among other things). PRC also ran a number of preschool programs and employed teachers on a contractual basis to teach the children who registered.
The Court of Appeals has issued an opinion regarding sanctions for bad faith claims that has a lot of lawyers on both sides of the “v” talking.
The background of the case is just plain goofy. Mr. W and Mr. G are neighbors who live in Montgomery County. Sometime in February of 2000, Mr. W is shoveling snow in his driveway when a man comes up with a video camera and starts videotaping him as he shovels snow. The man with the camera is actually Mr. G, but because there’s a large camera in his face and he’s wrapped in winter clothing, Mr. W doesn’t recognize him. Mr. W says to the man with the camera, “Can I help you?” but he gets no response. Mr. W then sets down his shovel, walks toward the man and tells him to stop videotaping. Sometime after that, Mr. W realizes the man with the camera is his neighbor, Mr. G, and at that point, Mr. W allegedly pushes the video camera out of Mr. G’s face. Obviously, these are neighbors with a history of bad blood.
- Sanctions for scheduling and cancelling — repeatedly — depositions
- Rule 11 sanctions for not conducting competent legal research
A Prince George’s County jury on Friday awarded our client $5.5 million dollars for the wrongful death of her mother as a result of medical malpractice. The offer to settle before trial: zero.
Here’s what happens. A woman goes in for a cardiac bypass surgery. Her surgeon and two surgical technicians successfully bypass the problematic areas of her heart with vein grafts taken from one of her legs. Right before they close her up, someone (more on that later) places pacing wires on the surface of her heart. The surgeon and techs finish everything up, and the patient goes to recovery.
Keep in mind the pacing wires are a precautionary measure. When a patient’s chest is closed, the opposite ends of the wires are left outside the body. If a doctor needs to regulate a patient’s heart rate after surgery, the ends of the pacing wires are hooked up to a little machine that stimulates the heart just enough to get it to beat regularly. When the wires are no longer needed, they are either gently pulled out of the body or they are clipped at the skin level and left in.
So, after the surgery, everything goes according to plan. Soon, our client’s mother is out of the ICU and in a regular hospital room. She and her daughter spent Saturday evening watching a TV program with Barbara Walters about open-heart surgery, and the entire family makes plans to watch the Super Bowl together in the hospital room the next day.
Our client and her mother reflect on the past few days as they watch TV, feeling like the worst was behind them. That’s the worst feeling. You think you have made it over the hill only to find out you have not even seen the hill yet. The daughter leaves the hospital to get some much needed rest, not knowing that she had spoken with her mother for the last time.
I was expecting and got a call Monday night. My parent Laura Zois was in trial in Frederick County in a rear end car accident case. I got word of the verdict: $291,000 and some change. A verdict in excess of the at-fault driver’s of $100,000 and the uninsured motorist policy of $250,000. This is not our first excess verdict against State Farm and it won’t be our last. But it always feels goo.
State Farm claims are always a challenge to settle. More than any other insurance company, they just do not make settlement offers that entice victims to settle before trial. The settlement offer in this case was $8,200. I felt like we should have gotten and even larger verdict in this case. I was a little disappointed we did not. This speaks volumes of where were are, at least in Maryland, with State Farm. We can get a verdict 35 times the settlement offer and still not view it as an epic victory. Because State Farm’s offer was not even remotely in the range of reasonable.
I’m a big fan of science. I would think there would be one best way to approach a personal injury case. But I’m always amazed at how trial lawyers with such unbelievably different approaches and different styles can be successful. But it is not just trial lawyers. If you look at the best of the best among politicians, musicians, actors, athletes, mathematicians, you name it, they are all different and approach their craft very differently, albeit with some common threads.
The same is true with insurance companies. They all have the same general idea: take in lots of money in premiums and pay out as little money as possible in claims. I think, for example, State Farm and GEICO have unbelievably different business models when it comes to running their business… including their approach to handling personal injury car accident claims. Obviously, both of these companies are making money hand over fist. But there is clearly not one single correct business model when trying to reduce the amount of money you are going to pay out in claims. You need to know the model you are facing to figure best our how to maximize the value of the claim. All roads lead to this Rome: you need to devise the tactics to get as much money for the claim as you possibly can whether it is a $50,000 claim or a $5 million claim.
One of my jobs here is to discuss strategy with our lawyers on the cases they are handling in litigation. It is one of my favorite parts of the job. I’m providing strategy and tactical advice without having to do the heavy lifting. Whether it is an accident or a medical malpractice case, one of my first questions is, “Who is the insurance company?” (and “What are the policy limits?). Because you have to have some idea of who you are dealing with in trying to settle the claim or even when you know you are going to try the case.
State Farm and Nationwide, for example, could have different approaches to personal injury cases. At Nationwide, a verdict that exceeds the policy limits by a $1 is a federal case. Alarms go off, file audits are conducted, and the world gets turned upside down. At State Farm, they call a day like this Tuesday. It is just an ordinary thing that happens. This is a critical thing that you need to know when you are going into settlement negotiations.
Where to Find Detailed Analysis of the Insurance Company You are Facing
Below, I have analyzed the insurance companies/adjusting companies we deal with in 97% of the motor vehicle accident cases we handle. You can find it here. Jump on the first link at the top and locate the insurance company you are dealing with on your claim or just look for the box that lists the major insurers at the top of the page.
|We have fought and won at settlement or trial scores of serious herniated disc cases. We know the science and we know how to present these cases to the insurance companies and, if necessary, to juries. Call 800-553-8082 or get a free online consultation.|
Jury Verdict Research provides some incredibly interesting data on a topic of great interest to accident lawyers: disc injuries. Eighty percent of disc injuries that go to trial are from injuries suffered in motor vehicle accident cases. The median verdict in a disc injury case is $50,000. The average disc injury verdict is $340,328, which includes the 7% of disc injury cases where the award exceeded $1 million.
Many disc injury cases are complicated by either a preexisting injury or because of degenerative disc disease. (Defense lawyers blame spondylosis for just about everything, even if the plaintiff had never had so much as a backache prior to the accident.) For degenerative disc disease injury, the average jury award is $51,678 ($11,482 median). For aggravation of preexisting disc injuries, the average award is $152,932 ($29,379 median). Obviously, you can drive a Mack truck through the differences in the value of disc cases on this single issue. As I explain more fully here, this gets factored into the calculation of cash value.
But each case has to be evaluated on its own merits. We have earned literally millions of dollars in verdicts and settlements in herniated disc injury cases where the client had some preexisting injury, either with radiological findings that suggest a previous injury or actual symptoms that the patient had before the crash.
Too often, plaintiffs’ lawyers allow defense lawyers to frame the issue this way. Oh, the injury was already there. That is not what matters. What matters is what is the patients level of pain and suffering now and what would it have been if this collision had never occurred. How you explain these cases to a jury really matters.
The one thing unclear is how the study determined whether the disc injury was a preexisting injury. The victim’s treating doctor and insurance company’s doctor frequently disagree on this point, particularly when the patient is over 40 years-old. There are some defense doctors who remain convinced that every injury you get after high school has to be an exacerbation of a preexisting injury.
The difference in the values between bulging/protruding disc versus a herniated or ruptured disc was rather pronounced. For bulging/protruding discs, the average jury award was $140,311 ($31,000 median). The average jury award for herniated or ruptured discs was $413,917 ($60,000 median).
Getting a Lawyer for Your Case
If you live in Maryland and would like my help in navigating your disc injury case towards the best possible outcome, give me a call and let’s see if I can help you. You can reach me at 800-553-8082 or you can get an online consultation here. If I am not available, you can ask for any trial lawyer here. Between all of us, we have handled over a 1,000 cases involving a herniated disc claim. We know these cases frontwards and backward.
The biggest intangible dealt with by personal injury lawyers in settling or trying a personal injury case is noneconomic pain and suffering damages. These damages defy ready conceptualization and the law provides little in the way of assistance to jurors who make the final call in the end.
In many of our personal injury cases we have used per diem reasoning to juries to articulate pain and suffering damages. Per diem arguments give some tangible basis for a pain and suffering award. In psychobabblespeak, per diem arguments are a form of anchoring — the cognitive phenomenon of the tendency of people to make estimates with a value in mind. After an anchor is established, there is a bias toward that value to the exclusion of other evidence.