Articles Posted in Legal News

malpractice law

Are they really going to settle these Subway foot long lawsuits?

Subway just got hit with a lawsuit alleging that its footlong subs are not actually a foot long. Plaintiffs who ate what is probably an 11-inch sub, are seeking money damages for their injuries. The case was filed in New Jersey.

I stick pretty close to personal injury related issues here. So why am I writing about a frivolous lawsuit claiming that a foot long sub is not a foot long? Because I think it is related. Lawsuits like this – and celebrities that sue for every possible slight – really sends a message to people, who later become jurors, that the judicial system is not often a place for serious justice.

So when an injured plaintiff begins a trial, she does not begin on the 50-yard line. She starts deep in her own territory. That’s not an impossible mission for a worthy plaintiff by any stretch – people flip quickly when they learn facts. But it makes the hill a tougher climb and it can change the way they value personal injury cases.

Subway says the word “footlong” should not be taken literally, as it is a trademark and “not intended to be a measurement of length.” But they are misleading people. They misled me. I thought it was a foot long till I read this story. But consumers who think like me have two reasonable choices: (1) decide not to buy the Subway subs because they are mad at the false advertising, or (2) remain annoyed but say, “Hey, Subway is not perfect, I don’t think many big companies are, but I think make a good sandwich and I’m going to eat it.” (I pick the latter. Subway makes a good low fat sandwich, albeit with a ridiculous amount of sodium.).

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I read a few opinions last week that did not rise to to the level of a full post on this blog but are still worth noting:

  • Illinois State Bar Association Mutual Insurance Co. v. Greenfield(Illinois):: Lawyer screws up a will and does the right thing, writing a letter to the beneficiaries informing them of the mistake. Legal malpractice insurer says that by failing to inform it of the letter before sending it, Greenfield violated a condition of his malpractice policy and refused to provide him a defense to the legal malpractice claim that ensued. “What a jerk move,” an Illinois appeals court said, finding the malpractice carrier could not bail on their client. (Please note: I might be paraphrasing.) Anyway, if you have insurance through ISBAMI, keep in mind they will pull this kinda garbage on their clients who try to do the right thing.gavel
  • Bougere v. Northrop Grumman (Louisiana): wrongful death claim’s statute of limitations begins to run not from asbestos exposure but from decedent’s death. Maryland would rule similarly.

A Florida judge was disqualified from a wrongful death tobacco case after comparing the defendant’s former CEO to Nazi war criminal Josef Mengele.

No brainer decision? I’m not so sure. Here is what happened. During trial, a hearing was held outside of the presence of the jury on whether a 1971 – remember 1971 – videotape of Philip Morris’s CEO Joseph Cullman should be admissible at trial. In the video, the CEO says that lower birth weights caused by smoking may maryland-lawactually be better for women who “might prefer having smaller babies.”

All right, so exactly what is the appropriate response. “Gee, that remark is unfortunate,” probably does not quite cut it. So the judge took it a little further, comparing the remark to Dr. Josef Mengele who conducted some of the most evil experiments on humans in modern times at Auschwitz. Continue reading

In Bailey Lumber & Supply Company v. Robinson, the Mississippi Supreme Court reversed a $1 million award in a slip and fall case, finding that while plaintiff’s medical expert – an internal medicine doctor – could testify about the plaintiff’s hip problem, he did not have the expertise to offer the opinion that the slip and fall aggravated the man’s osteoarthritis, necessitating hip replacement surgery. This opinion is a good reminder for personal injury lawyers in Maryland that, when in doubt, make sure you have an expert that is qualified to give the opinions you need at trial.

This case is a pretty good slip and fall case on liability for the plaintiff. Defendant operated a building-and-lumber-supply retail store. Plaintiff needed paint. Defendant’s employee says, “Follow me back to a dark, creepy and dangerous room” (I may be paraphrasing) that was for employees only. The room was dimly lit and plaintiff tripped over a two-inch step in the threshold of the doorway between the two rooms. Plaintiff says defendant’s employee said we “should have fixed that floor a long time ago.” (To me, this sounds made up.) Plaintiff drove himself home.

I’m not feeling a million verdict at this point. Are you? Oh, yeah, and he has osteoarthritis, eventually necessitating hip surgery. Continue reading

As the Maryland appellate courts continue their summer of personal injury enuni, we turn our attention to a uninsured motorist case issued by the Supreme Court of Rhode Island, in New London County Mutual Insurance Company v. Karoline Fontaine. This opinion works through some issues about uninsured policy provisions, something we find ourselves doing quite frequently at Miller & Zois in our sometimes mad quest to find insurance coverage to get our clients compensated for their injuries.

The facts on this one are both simple and tragic. A husband and wife were on their motorcycle, and got into a collision. As is too often the case in motorcycle accidents, the husband was killed. The accident was not the couple’s fault, which is also often the case in fatal motorcycle accidents. But, of course, that is little consolation to the man’s family.

Neither the other vehicle nor its driver was insured. The motorcycle was insured by a policy with Foremost Insurance Company, and Foremost paid the full $100,000.00 under the uninsured motorist provision. Continue reading

A few months ago, the Maryland high court ruled in Tracey v. Solesky, that in dog bite cases involving a pit bull or cross-bred pit bull mix, a plaintiff no longer needs to show that the dog in particular, or pit bulls in general, are dangerous in order to bring a claim against both the dog’s owner and the landlord – the deep pocket in many dog bite claims. (You can find my posts on this case (here and here). This opinion was one of the most controversial tort opinions issue by a Maryland court in recent years. (NOTE: THIS LAW DID NOT PASS BUT THE MARYLAND HIGH COURT ACTED ON ITS OWN TO REVERSE PART OF THIS RULING.)mdstatehouse3

The new law may not last long. The Maryland Senate took a quick break from its efforts to bring table gambling within 100 yards of every man, woman, and child in Maryland and passed a new law that would create a strict liability standard for owners – but specifically not landlords – in all dog bite cases. The vote was a whopping 41-1, with Carroll County Republican Joe Getty casting the only dissenting vote. Senator Getty apparently claims that dogs are people too, just like corporations. (I may have made that up.) Continue reading

New Dog Bite Opinion in Minnesota

We have our own issues here in Maryland with dog attacks and dog bites, particularly now that no one really knows what the law is and whether it’s going to change with regard to pit bulls (see our post on Tracey v. Solesky). Right now, the legislature seems poised to come up with some solution to the high court’s problematic ruling that pit bulls are inherently dangerous.

The question is one of what the solution will be—a return to the status quo and the “one free bite” rule; or a rule that all dog owners are responsible for any injuries caused by their dogs. One thing is for sure—the legislators should read up on Minnesota’s rule for guidance on how to best craft their rule.

Minnesota’s rule is problematic, as indicated by this month’s Minnesota Supreme Court ruling, Anderson v. Christopherson. Minnesota’s rule (Minnesota Statutes § 347.22) is deceptively simple:

If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term “owner” includes any person harboring or keeping a dog but the owner shall be primarily liable. The term “dog” includes both male and female of the canine species.smalldog

Reading just the rule, it appears to make sense. To me, it sounds like “the owner of any unprovoked dog who attacks or injures a person is responsible for those injuries.” That is a good, common-sense rule. If you own a dog, and that dog causes harm, you are responsible. Doesn’t matter if the dog is a pit bull or a poodle. Doesn’t matter if the dog never harmed a fly, or has bitten ten people. That rule seems to place responsibility squarely on the shoulders of people who should accept that responsibility—the dog owners.

Let’s be clear: this would not be an anti-dog rule. No one Reasonable people do not blame the dog when they bite. It certainly does not mean that the dog should be put down. It means the dog’s owner is obligated to take responsibility because the owner should bear the loss instead of the person who got bit. Many of the comments to my prior posts on Maryland’s new dog bite law for pit bulls (here and here) were from dog rights activists who also believe this should be the law.

Anyway, back to Minnesota which has a hodgepodge of judicial opinions interpreting the decision, some contradictory, and they mutate what seems like a simple rule into something that is anything but simple. A prior court opinion interpreted the phrase “attacks or injures any person” to mean one of two things: (1) attacks means that the dog moves with violent intent; and (2) injures means nonhostile behavior (like playfully jumping up on a person in greeting) that injures a person. Never mind that “injures” actually means “to cause injury.”
So now we have a law that a dog owner is responsible for injuries caused when the dog attacks a person, or causes injury to a person when not acting violently. In this case, the Minnesota Supreme Court was then asked to decide in Anderson whether a dog owner was responsible in this scenario: Dog A (50 lbs) attacks Dog B (20 lbs). Dog B’s owner was lawfully walking Dog B. Dog B’s owner tried to save his dog, and falls in the process, breaking his hip. Continue reading

This is a collection of blogs and news articles I read last week while I was on vacation that I though many of you might find of interest:

  • The vast majority of injury lawyers are not “ambulance-chasers,” and anyone who tars all of us with that label is pushing a political agenda, Kennerly writes. Personally, I don’t have the energy to fight the misconceptions. I think I’m helping society which is why I chose to do what I do. (But, too many personal injury lawyers think they are doing God’s work and ours is the most noble profession of all. Please. You are not saving the world as a personal injury lawyer and, honestly, you are not even trying. You are just a spoke in the wheel, albeit a productive one that helps society.) No one is going to change their mind by anything that I say. So, I’m just going to help our clients the best I possibly can, feed my family, and let the world be the world.guyreadingpaper
  • Do English-only product-safety warnings constitute adequate warning for the purpose of tort claims? I think it has to be. We can’t make product warnings in a zillion different languages and expect to keep our businesses competitive. If you are using a product and you don’t know the language of the warning, you need to make sure you take the appropriate steps to make sure you know what they are.

The University of Baltimore School of Law has a new dean. Ronald Weich, former Assistant Attorney General for Legislative Affairs at the Department of Justice, will take the helm at UB.

I discuss now Dean Weich and the other candidates for the top spot at UB law school here. He was my original second choice who was later ( via sour grapes ) upgraded to my first choice.

He's the one on the left.

He’s the one on the left.

Most personal injury appellate opinions involve a high level of human suffering. If you stopped and connected with every opinion that involved human suffering, you would spend all day looking into the abyss. Every wrongful death case is awful. But this appellate opinion last week from Indiana just has unbelievably depressing facts.

A woman asks the defendant, her boyfriend’s stepfather, if she and her children – ages 3 and 4 – can stay with him. He says no. But while he is away, she has a pool party at his house. He comes home and says what you think he would say: “Get out.” She asks if she can stay until the morning after breakfast. Defendant reluctantly agrees.shutterstock_155967620[1]

Defendant goes to work in the morning. Defendant’s stepson lets the boys play outside around 10:30. Mom was, of course, still asleep. She wakes up, sees the kids playing outside, and goes back in the house leaving them to play by the pool. The woman comes back to find her son, but can’t locate him. They look everywhere until it finally occurs to them that he might be in the pool. The boy is at the bottom of the pool. He was taken off life support the day after the incident when it was determined that he was brain dead.

It is easy to be judgmental of other parents. You have to try to fight the compelling urge to judge because you can’t put yourself in anyone else’s situation. Walk a mile in their moccasins and all of that. But I don’t have any energy to fight that judgmental feeling on this one. Continue reading

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