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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 while 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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I got tossed from a little league baseball game yesterday.

I know what you are thinking.  Keep your mind open. Continue reading

There have been some interesting developments in the da Vinci Surgical Robot litigation.

da Vinci Class Action Lawsuit Update

We reported last year on the efforts of some plaintiffs’ lawyers to combine existing and future da Vinci lawsuits into a type of class action lawsuit known as an MDL. An MDL groups similar cases together in federal courts for convenience and efficiency. Those cases would be handled by one judge and would have consistent general discovery, but would then have individual trials unless there was some sort of global da Vinci settlement. Well, the petition for MDL-2381, In Re: Intuitive Surgical, Inc., Da Vinci Robotic Surgical System Products Liability Litigation was denied on August 3, 2012. The original petition included four cases spread out over four states. The JPML denied the petition we think correctly, noting that the cases were “straightforward personal injury or wrongful death actions.” Essentially, there were very few cases, and those cases would rely on largely unique and individual facts that were better suited to a standard and stand-alone lawsuit. The plaintiffs would have had a better chance (though not a great chance) if they had argued for consolidation of specific subsets of injuries—for example, hysterectomies. However, the reports thus far indicate that there are several different causes of injury, even for hysterectomy procedures. This was the right decision.

Victim Stories

NBC recently aired a report featuring the stories of many victims of the da Vinci. Click here for the eye-opening broadcast.

Intuitive Surgical Wins the First Trial

The maker of the da Vinci robot won the first reported trial. Filed in Washington state, the plaintiffs argued that Intuitive negligently trained a doctor who used the robot to perform a prostatectomy (removal of the prostate gland). The surgery caused kidney failure, brain damage, and eventual death. However, the device’s manufacturer was able to successfully argue at the five-week trial that the doctor was solely at fault. Though unsuccessful against the manufacturer, the case settled against the doctor before trial. Continue reading

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.

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 $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.

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.

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 trials. In the Yaz lawsuits, the judge doesn’t think the bellwether cases will be useful at this time. Continue reading