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In Armacost v. Davis, the first appellate tort opinion in Maryland in 2019, the Maryland Court of Appeals was asked to examine whether a trial court’s instructions to the jury were inappropriate and prejudicial in a medical malpractice case alleging negligence after a four-level cervical discectomy and fusion surgery performed by the defendant left the victim with claims of permanent injury.   The Maryland high court ultimately held that:

1)    The trial court did not mislead the jury as to the applicable law by first giving them general negligence instructions before instructing jurors on the standard of care applicable to the defendant brain surgeon’s actions.

2)    The trial court did not abuse its discretion by telling jurors how much longer they would be required to deliberate after they had previously expressed concerns over the length of the trial.

After a serious accident or the loss of someone that you rely upon economically, the financial hardships can be overwhelming.  In even the best case scenario, justice is never immediate.  I’ve seen people suffer incredible economic losses Wallet with moneywhile they wait for justice, including losing their homes.

Some people file for bankruptcy.  What most victims and even personal injury lawyers in Maryland do not fully understand sometimes, your personal injury claim becomes the property of the bankruptcy estate, when a injury victim files for bankruptcy protection whether the claim is listed in the bankruptcy or not.   In my experience, the personal injury victim generally gets the claim back after the bankruptcy.  But as the victim’s lawyer you represent the victim, then the trustee, and then back to the victim again.  The whole thing is just an utter mess.

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scheduleScheduling depositions in car accident lawsuits usually is not a complex thing. You call the other side, you agree on dates, and you have your depositions. The key is cooperation. Rather than unilaterally serving a deposition notice, you just call opposing counsel and agree to the place, date, and time. There are rarely issues.

For some reason, and I’m not entirely sure why, scheduling depositions in medical malpractice cases always seems to be an ordeal. Common courtesies that I’m sure many Maryland malpractice lawyers accord each other in the rest of our lives sometimes go out the window. Sometimes, it seems like otherwise ethical lawyers have no qualms about making up excuses for why they or the deponents cannot attend a deposition that are not based in fact. Often, you can figure this out when you depose the witness. Continue reading

Another new Maryland lead paint decision

The Maryland Court of Special Appeals reversed a $5.1 million (reduced to $1.25 million by the cap) lead paint verdict in a 91 page opinion written by Judge Shirley M. Watts.

The first 58 pages of this opinion are facts. But there are two real issues: (1) did plaintiff’s expert, a pediatrician, have the necessary qualifications to render the opinions that the lead exposure at defendant’s property caused the brain injuries alleged in this case, and (2) did the trial court properly sanction the defendant and his lawyer for alleged willful discovery violations.baltimoreflag

I don’t care much about the latter issue because I’m just not a big fan of monetary sanctions against counsel. I’m real interested in sanctions like spoliation instructions and other sanctions that actually give a tactical advantage. But the retail value of the paper used demanding monetary sanctions is greater than the actual amount of sanctions against counsel that have been awarded and paid. The issue in this case is interesting – the opinion breaks down in painful detail – but it is ultimately as useful to me as my recollection of the Baltimore Orioles 1979 batting order. (I do, however, recommend reading the details about these sanctions for the entertainment value. I’m amazed that Judge Watts did not even comment in an off-hand way about the trial court’s findings of extreme discovery violations. I would not have the same discipline.)

So on to the real issue: the qualification of the expert. The court found that even though the pediatrician was a licensed doctor and all, he really was not qualified or even prepared to render an opinion in this case. He had limited experience in treating kids with lead paint poisoning, never evaluating or diagnosing children with lead exposure or even following the progress of kids with lead exposure. In fact, he did not even recall treating a child for lead poisoning. His qualifications, distilled down to their essence, appear to be that he is a pediatrician who keeps up with the medical literature. Continue reading

Our firm just got a huge 2-1 win in the Maryland Court of Special Appeals today in Buckley v. Brethren Mutual.

The plaintiff’s lawyer in this case, who later referred the case to us, settled the underlying tort claim against the at fault driver for $100,000. She had the client execute a general release that did not mention any exclusion for the underinsured motorist claim. Everyone agreed that the claim was worth more than the gavel$300,000 UM limits but Brethren Mutual – I would argue – really tried to hose their insured in a way that I don’t think the likes of State Farm, Allstate, and their brethren (get it? Brethren?) never would. The trial court granted Brethren’s motion for summary judgment. The Maryland Court of Special Appeals reversed.

I’ll try to break down the entire case later, hopefully tomorrow. Meanwhile congratulations to us, especially our client, Rod Gaston who handled the case, and John Bratt who wrote a great brief for us.

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A fedora will no longer suffice.

Starting Monday, the ridiculous pass that mopeds and scooters in Maryland have been given on the most basic safety precautions will end. Moped and scooter drivers now must equip their death traps by wearing a helmet and some kind of eye protection. Scooter drivers must also register their vehicles and have a valid drivers’ license or a moped/scooter permit.

Maryland was one of the few remaining states that did not require a license, registration, and insurance for mopeds (or mo-peds? I can’t decide).

The Maryland legislature is unlikely to jump right into Maryland’s pit bull controversy in spite of what is described as a bipartisan support to overturn the Maryland Court of Appeals ruling that imposes strict liability for pit bull owners in dog bite cases, according to the Maryland Daily Record.

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While the General Assembly is almost sure to debate the court’s ruling in Tracey v. Solesky, the legislature has apparently decided that the special session is not the time or place to address anything other than the budget crisis.

Yaz cases may be settling. This is big news for the thousands of women who took Yaz, Yasmin or Ocella and suffered from heart attacks, strokes or pulmonary embolism. The judge in the Illinois litigation abruptly canceled the Yaz bellwether trial (pulmonary embolism case), originally set for January 9. Judge Herdon, using the heavy hand of the law, is encouraging Plaintiffs and Defendants to sit down and talk with a mediator. The mediator assigned to the case by the judge is Professor Stephen Saltzburg of the George Washington School of Law. He’s got some good credentials, and I’m sure he’d love to add the “Yaz Settlement facilitator” feather to his overflowing cap of achievements.

Judges in MDLs have a lot of pressure to get things done. The MDL is so useful because it unifies cases that would otherwise be handled individually. Everyone has the same information, which makes it easier to put reasonable settlement or trial values to each lawsuit. One of the purposes of these bellwether trials is to get some preliminary data on how juries react to the cases, so that the parties can make informed decisions on settlement. Most cases settle after a few of these yaz1trials. In the Yaz lawsuits, the judge doesn’t think the bellwether cases will be useful at this time. Continue reading

The first Yaz birth control lawsuit, set to go on Monday, has been stayed. Judge David R. Herndon ordered the trial indefinitely delayed, appointing a mediation special master. The judge ordered Bayer and the plaintiff to engage in good faith settlement discussions.

Plaintiff’s Yaz lawyers have been eagerly anticipating this first bellwether Yaz trial. In these pseudo class action cases, the first few trials inform both plaintiffs’ yazlawyers and defendants about the real settlement value of these cases.

I can’t think that Bayer was racing to the courthouse steps to try their first case. If the first Yaz trial goes badly for them, and I think it will, the price of tea is going to go up dramatically. Bayer is between a rock and a hard place: Yaz is making them a fortune (although less so recently) and Bayer has kept Yaz on the market. If Bayer starts getting hit with verdicts, they are going to be forced to pull Yaz and start paying out big verdicts and, eventually, settlements.

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