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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.

The Defense Line – a publication of the Maryland Defense Institute – publishes a quarterly newsletter that includes a few “Hey, look, Ma, we got a defense verdict” pieces. Here is a sample:

Johnson, et al. v. Dr. Rosemarie Filart, M.D., et al. — Bonner Kiernan Obtains Defense Verdict in the Circuit Court for Baltimore City, Maryland — Alleged Medical Malpractice/Wrongful Death

A 53 year old man, [name deleted], developed deep vein thrombosis (DVT) after completing a course of anticoagulant therapy prescribed by Dr. Rosemarie Filart of Johns Hopkins. One of his primary care physicians, Dr. Mark Saba, subsequently placed the patient on a blood thinner to treat the DVT, but Mr. Johnson still went on to suffer from a pulmonary embolism (PE) and died. The decedent’s family (including a wife and two adult megaphonechildren) filed a lawsuit against Dr. Filart, Dr. Saba, and Dr. Saba’s partner, Dr. Lawrence Boas, alleging that Mr. Johnson’s pulmonary embolism was a result of the premature discontinuation of anticoagulant therapy (by Dr. Filart) and/or improper treatment of the DVT (by Saba and/or Boas). Drs. Boas and Saba, represented by E. Phillip Franke and Ace McBride of Baxter Baker Sidle Conn & Jones, were both voluntarily dismissed by the plaintiffs in the middle of the trial. Plaintiffs elected to continue their case against only Dr. Filart, represented by Carolyn Israel Stein and Jason Engel of Bonner Kiernan Trebach & Crociata. After a three week trial, the jury returned a defense verdict in favor of Dr. Filart after 45 minutes of deliberation. Plaintiffs had sought $1,200,000 in economic damages, plus noneconomic damages for the decedent’s alleged pain and suffering and the family member’s suffering due to the loss of their decedent.

This blog post summarizes Mattison v. Gelber, a new Maryland Court of Appeals opinion in a medical malpractice case with a unique issue with respect to whether there was an entry of final judgment without an award of costs. You can go to the jump at the bottom of the post. I take the dog for a short walk in the introduction.

When I started practicing law, one of the first cases that I was given was a plaintiff’s legal malpractice case. Except for a subrogation case – which really does not count as a plaintiff’s case – it was the only plaintiff’s case that I had in my first four years as a lawyer. Now, it has been ten years since I was on the other side of the v.law books

Anyway, in the malpractice case, the lawyer blew the time for filing a post-verdict appeal. He blew in the most bizarre way possible: he filed his Notice of Appeal too early before final judgment had been entered.

The idea of committing legal malpractice for doing something too early stuck with me. I have been paranoid to this day about deadlines in general but, in particular, post-judgment motions. In Mattison v. Gelber, the court dealt with facts that validate my paranoia.

This case started, as many malpractice claims do, with a battle over venue. Plaintiff filed in Prince George’s County against two doctors. There is not a medical malpractice attorney in Maryland who would not prefer Prince George’s County to anywhere else (possible exception: Baltimore City). But the malpractice happened in Howard County, one of the toughest places in Maryland to try a malpractice case. The Prince George’s County Circuit Court transferred the case, it did what it likes to do if there is a venue of issue: kick it out of their court.

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