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Articles Posted in Litigation Strategies

The issue of pre-impact fright is a big deal in wrongful death car accident cases in Maryland.

Why? Well, in non-malpractice cases we have a cap on wrongful death claims and a cap on survival actions. In Maryland – I know some states have it reversed – the survival action is the victim’s loss: his medical bills and pain and suffering damages. It is the only claim in the victim’s own right for the wrong done to them. Under this law, if you shoot a guy in the back of the head without him seeing you coming, there is no survival action. Like the cap itself, this is a dumb law. (Fill in here your own rant about how misguided the cap is. I’ve done it here many times before, but the subject is inexhaustible.)pre-impact fright

This matters because juries are not stupid. They want to compensate the victim in their own right and, accordingly, tend to inflate the value of pre-fright impact to make up for the fact that the law foolishly ignores the victim. My partner tried a case once where the jury awarded $3 million for a pre-impact fright when the victim uttered an expletive before he died (the driver lived and testified at trial).

Anyway, trying to blunt some stupidity of this law, the Maryland Court of Appeals in Benyon v. Montgomery Cablevision in 1998 told us you can recover in a survival action for mental anguish when you see what turns out to be your death coming. The court found that in survival actions where a decedent has “great fear and apprehension of imminent death before the fatal physical impact, the decedent’s estate may recover for such emotional distress and mental anguish as are capable of objective determination.”

The problem with pre-impact fright is it is wrought with evidentiary challenges. What did the dead guy think before he died? But the Maryland courts have shown some flexibility on this, in this case and, more recently, in concluding that a boy who drowned suffered although there was no evidence of this other than the correct application of common sense.

Regrettably, South Carolina went in another direction last week, ruling that there was no evidence to support a conscious pain and suffering claim in a fatal automobile accident case.

There are two issues that the parties addressed in their briefs. First, how much proof do you need to show to prove conscious pain and suffering (which Maryland addressed in the drowning case I just mentioned) and this question of pre-impact fright. The court largely dodges the issue because this case was not well plead – the plaintiff’s lawyer did not even bring a survival action although – adding to the complexity – they settled with other defendants on a survival action that was never pled). Instead, the court refuses to get down in the weeds of the facts of this case and punts on what South Carolina should do.

How boring for us. So let’s look at the defendant’s argument in the case.

In South Carolina, the cause of action for physical injury survives, even if the injured person does not, and the established law of South Carolina recognizes pain and suffering as damages in such a survival action, but the law requires that it be proven and that it be consciously suffered. Camp v. Petroleum Carrier Corp., 204 S.C. 133, 28 S.E.2d 683 (1944). Speculation is not allowed. In Camp, the evidence considered by the Supreme Court was that a man was heard groaning from within a car before he died of injuries sustained in the wreck. There was no evidence, however, that he was “conscious of pain and suffering.”

What? You had a guy who gets in an accident. Before he dies, he is groaning. Now, which is the more likely scenario: he was suffering, or he was not suffering? Let’s get Nate Silver or someone to poll people about which one is more likely. I bet 90% say it is more likely that he suffered before he died. Underscoring its credibility, the defendant also signs off on- get this – that evidence that a shooting victim crawled away leaving eight-foot trail of blood and clutched leaves and pine needles to his chest wound do not rise to proof of conscious pain and suffering. I kid you not. Continue reading

U.S. District Court Judge William M. Nickerson remanded an asbestos case back to Baltimore City Circuit Court, rejecting defendant’s efforts to remove the case to federal court because the defendant had joined non-diverse defendants.

The case is one of many asbestos cases on the docket in Baltimore City. Plaintiff alleges her mesothelioma was caused by exposure to asbestos from Colgate’s fraudulent joinder argumenttalcum powder. In answers to interrogatories, plaintiff identified Colgate’s Cashmere Bouquet talcum powder as the sole source of her asbestos exposure. In her June 2012 deposition, Barlow testified that she did not believe she suffered any other exposures.

There is a one-year limit on removal unless the court finds that the plaintiff has acted in bad faith to prevent a defendant from removing the action. Colgate tried to push the “unless” part of that rule, claiming the joinder was fraudulent.

Serious personal injury cases, where pain and suffering damages are high but less than the cap on non-economic damages, are the hardest claims to value and the hardest cases to settle without suing. Almost invariably in these cases, I’m telling my clients that the case’s value is likely to be higher after suing than the insurance company’s best pre-suit offer. The facts bear this out. I would estimate that our clients do well suing in 98% of the cases we file.

Why is that? On one level, there is a greater ability to generate comparables – “comps” to use the lingo” – in personal injury cases than there is in accessing, say, the value of real estate, where you have few comps because you are limited by tight geographical locations. I mean there have been about five zillion herniated disc cases with a laminectomy and fusion at C4-C5 where the client had no prior injury or degeneration. Why isn’t there just a well-established value for that? Continue reading

I rarely write about criminal cases because I find criminal cases uniquely depressing and because they rarely relate to what we, as personal injury lawyers, are doing. Venus and Mars. I have no idea how to handle a criminal law case and criminal lawyers have no idea how to handle a personal injury case. Yet, annoyingly, criminal lawyers think they do, which is why I’m constantly getting calls from potential clients complaining that a mostly criminal lawyer is screwing up their accident claim. (Did I just say that in my out-loud voice? Sorry.)

But this Maryland Court of Appeals case decided last week – Maryland v. Thomas – addresses two issues that are of interest to all trial lawyers: (1) what to do with jurors who – for good reasons and bad don’t want to be on the jury, and (2) under what conditions do appellate issues arise from juror communications to third parties – notably, in this case, with the court.

The defendant, in this case, was convicted of second-degree depraved-heart murder after a stabbing outside of a Baltimore County night club. I forget exactly what “depraved-heart” means, but it does not sound good. The Court of Special Appeals reversed the defendant’s conviction, finding that while the evidence was sufficient for the jury to convict, the trial court committed prejudicial error when it failed to promptly notify the attorneys of communication between the trial judge’s maryland court opinionsecretary and one of the jurors. Apparently, the juror called the secretary, and he wanted to get the prosecutor’s home number to ask her out. The judge thought this was no big deal.

Okay, I’m making that up. That would be over-the-top. This problem was far more nuanced. After the juror at issue was chosen, the juror told the judge and the lawyers that his grandmother is 89 years old and is expected to die any minute. The juror also clarified that he just had to be at the funeral if there was one and otherwise fully intended to serve.

The juror’s grandmother dies. Baltimore County Circuit Court Judge Michael Finifter reveals a note from the juror requesting off the jury to help prepare for his grandmother’s funeral. The judge also advises counsel that the judge’s secretary had been contacted by a member of the juror’s family to tell him about the death of his grandmother. The juror apparently said, without the lawyers present or notified of the issue, that he could continue. These conversations took place before the alternates were discharged. After this, the juror changed his mind, and once again requested to be excused.

Now the court is in a box and the defense attorney is mad that he was not made aware of the discussions with the juror. The judge refused the juror’s request to be excused. The defense lawyer – who probably saw the conviction coming – sought a mistrial which the judge denied. Continue reading

Last Friday, a federal judge in Washington D.C. issued an opinion on whether to impose discovery sanctions on Marriott that I think is an instruction for personal injury lawyers dealing with defendants that destroy evidence.

In Mahaffey v. Marriott, plaintiff’s lawsuit alleged that while exiting an elevator in a motorized scooter, the elevator violently lurched, throwing him off the scooter, causing the scooter to land on top of him, resulting in serious injury. (No, I can’t picture it either.)evidence spoliation instructions

I’m assuming the injuries are serious. He appears to have hired a Florida lawyer who retained local counsel here. Usually, people are not going through that effort unless they have an actual case, although some of the facts I’m about to get to will make you question just how badly the plaintiff was injured.

So the plaintiff’s attorney puts Marriott on notice of the claim. The letter was sent by certified mail. Lawyer gets back a green card, the whole nine yards. (Spoiler alert: The court says, incredibly to me, that “Marriott maintains that it has no evidence that it received the demand letter leaving open the possibility that it received an empty envelope.” Wow. The court backs off this later in the opinion. But a judge saying that I might have sent an empty envelope by certified mail is the very reason I live a paranoid life. And it lets you know the plaintiff will lose) The letter sets forth the name of the plaintiff and the date of the accident. It did not – and I can’t tell you why – tell Marriott the name of the hotel involved in the accident. Continue reading

You can call it a sad but true fact if you want: the value of a personal injury case in Maryland might double (or be cut in half) based on where the case is tried. I provide here our thoughts on where each Maryland county and Baltimore City ranks on the food chain of preferability for venue in personal injury shopping

Defense lawyers want to go back to olden days when plaintiffs did not forum shop, they just filed where it was most convenient and advantageous to the plaintiff. Defense lawyers are big into restoring traditions that never existed. I’ve never seen a stitch of evidence to suggest that venue has not been a battlefield since the Industrial Revolution. There are more opportunities where reasonable minds can differ as to the venue in 2012 because we are so much more cosmopolitan today. Just about every tort that arose 150 years ago was on some guy’s farm. So while the analysis is more complex now, there have always been different communities that had different values and this impacts the lens with which they view personal injury claims. Continue reading

Defense lawyers are reluctant to say that the plaintiff is lying. They will insinuate, suggest, intimate, and any other verb you can think of to lead that horse to water, but they will rarely come out and say it. It is largely a trial tactics decision, but it is also because defense lawyers are human. (No, really! It’s true!) It is uncomfortable to call someone a liar or a bad person, so most defense lawyers avoid it. The strategy for many is to turn it over to their medical expert, hoping that packaging it in a white coat makes it more credible.defense expert lying

Medical experts should not be testifying as to the plaintiff’s credibility. Under both Maryland and federal law, the credibility of a witness and the weight to be accorded the witness’ testimony are for the jury and, it is “error for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying.” Stated by the Maryland Court of Appeals: “It is the settled law of this State that a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth. Testimony from a witness relating to the credibility of another witness is to be rejected as a matter of law.” Continue reading

I’ve been following, with interest, opinions around the country dealing with the discoverability and admissibility of social media evidence and the issue of jury misconduct that involves the use of modern technology and social media. I found on John Day’s Twitter feed today an article that addresses the latter issue of jury misconduct social mediajuror misconduct. As John says, the article is written by two defense lawyers tripping over themselves to show potential insurance companies’ clients that drank the “plaintiffs must be stopped” Kool-Aid. But, it is a well-written article and a great collection of the case law on this topic.

In a footnote, the authors talk about a search they did on Twitter for “jury duty”:

On February 15, 2012, the authors of this article conducted a general Twitter search for “jury duty.” In the hour preceding the search, there were over 170 tweets referencing jury duty on Twitter, including such comments as, “Someone, pls take a bat & beat me senseless with it. Why am I here yo!?! Jury duty is so cornyyyyyyyyyy,” “Anyone ever have to go for jury duty? Do they let you text and email etc from your phone while you wait? Any other helpful info,”and “Hes guilty…Jury Duty is honestly the biggest waste of time….”

Continue reading

The Maryland Court of Appeals issued its opinion in Nicolas v. State, a Montgomery County criminal case.

The primary issue on appeal dealt with double jeopardy, merger of offenses, and a bunch of other stuff I have long forgotten about since law school. But the case also raised on appeal a rather novel issue regarding juror notes.appellate opinion criminal

I love juror notes. You spend days trying to read invisible juror tea leaves and then get actual tea leaves of what the jurors are thinking. Yet these are illusory tea leaves. My favorite story was when the jury came back with a single question: “May we see the Plaintiff’s damages board again?Continue reading

Ask the average person or even the average lawyer what they think of forum shopping. It is viewed as a crime against the people. So let’s talk about “forum selection” instead.

Forum selection is important, showed by the frequency with which parties contractually provide for and battle over venue. There are a host of reasons forum matters so much. There are choice of law, capacity to sue, the statute of limitations, caps on damages, and a host of other potential considerations. But for personal injury lawyers, we are forum shopping for one purpose: trying to find a jury panel that would be most receptive to our client’s claim.

In spite of all the hand-wringing about the crime against the people for plaintiffs’ lawyers to have – gasp! – options of where to sue, Maryland law defers in some measure to the plaintiff’s selection as the choice of venue if the venue is proper in the forum the plaintiff selects. The Maryland Court of Appeals has

best worst places lawsuit

Venue can mean everything in a personal injury lawsuit.

repeatedly held that it is “the moving party who must prove that the interests of justice would be best served by transferring the action…and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party.” But, let’s face it, the trial court has a lot of discretion on venue. A trial judge can ignore this rule with impunity and balance the interests as the judge sees fit. We joke that the “weighs strongly” rule is only the law if the motions judge agrees it should be the law. (This was never fully explained to me in law school, let me tell ya.)

If you are a plaintiffs’ lawyer, you are practicing two types of forum shopping selection: vertical and horizontal. Vertical forum shopping is moving a case to or from federal court. This is rarely an option in car accident and malpractice cases, but is a common question in product liability cases. The one thing that lawyers just don’t seem to understand is the nuances of the diversity of citizenship rule for filing in federal court. Many lawyers wrongfully believe there is diversity jurisdiction if you are suing an out-of-state defendant, even if you are a resident of that state. If you have a client who is domiciled in Maryland, and file against an out-of-state defendant in federal court, that defendant can get the case transferred to the Maryland county with appropriate venue. It is amazing to me how many lawyers don’t understand this. Continue reading

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