Maryland Injury Lawyer Blog

Opening Statement is a Story

Sat, 25 May 2013 09:30:00 -0500

This is a pretty good blog post on storytelling, which is useful to any lawyer giving an opening statement.

Nothing earth shattering but good advice. The one thing I would add is what most lawyers don't do: talk in the present tense. People just listen better when the speaker is not using past tense.

We have on our website a number of sample opening statement transcripts. I think we have one up now for all of our lawyers.

Sorry for the lack of blog posts this week. I'll be back with a vengeance next week. Have a fun and safe Memorial Day weekend.

Timing of Discovery Obligations

Fri, 17 May 2013 09:28:43 -0500

Lawyers always argue over anything where there is not black and white set rules. (Actually, we argue when there are set rules, too.)

No one exactly knows the rules of the sequences of discovery because the rules are whatever the motions' judge says there are. So lawyers take positions on these issues with varying degrees of reasonableness.

A new Wisconsin cases is illustrative of this issue. In Dauska v. Green Bay Packaging Inc., the defendant filed a motion for sanctions and to compel the deposition of the Plaintiff who refused to be deposed. Why? Plaintiff's attorney refused to allow his client's deposition until he received discovery responses from the Defendant. Plaintiff's lawyer did not file a motion for a protective order but did make it clear his client would not appear for deposition.

Should We Lower BAC for Drunk Driving in Maryland?

Tue, 14 May 2013 13:37:47 -0500

Today, the National Transportation Safety Board (NTSB) said we should lower the blood-alcohol limit from .08, the current standard, to .05. The NTSB argues that the U.S. is too lenient when it comes to drunk driving and wants the U.S. to adopt the same standard as other countries, such as those in Europe.

Data from the National Highway Traffic Safety Administration tells us what we have known for a zillion years: alcohol plays a role in nearly one-third of traffic deaths in America.

But the NTSB tells us something incredibly new, providing data that the risk of a crash is reduced by half when the definition of “drunk driving” encompasses the .05 standard instead of the .08 standard. Depending on body size, the difference between .08 and .05 is one to two drinks over a three hour time span.

It is hard not to cut to the chase on this. There are 12,000 deaths, give or take, a year in this country from drunk driving. Now imagine in your mind 6,000 people in a room that could have been saved by everyone having just a few less drinks. Then imagine everyone who loved those 6,000 people in a room. I have to think the NTSB is on the right side of history on this.

(I just pulled a little trick there. The NTSB says "car crashes" and I turned that into "car crash fatalities." But if you reduce that 6,000 to 3,000, does it really detract from the point I'm making?)

We had been reducing drunk driving deaths for a while but we have hit a stopping point. We either need to increase penalties or reduce the BAC. Those, it seems to me, are the two weapons we have in our arsenal to get past the bottleneck.

Uninsured Motorist Claims: We Really Can Name the Insurance Company

Thu, 09 May 2013 12:53:51 -0500

Last week, the Court of Special Appeals of Maryland decided the case of Davis v. Martinez. This was an appeal where the trial court entered an order that permitted the underinsured motorist insurer (State Farm) to participate in the trial anonymously. State Farm was never identified to the jury, the jury was not told about the plaintiffs’ claims against State Farm, the jury was never told who State Farm’s lawyer represented, and the jury was never told that State Farm’s expert medical witness was testifying on behalf of State Farm.

I know what you’re thinking if you are a Maryland accident attorney - “But wait, doesn’t King v. State Farm say that the UIM carrier must be identified to the jury in cases where the insurer is a party?” Well, yes. That is exactly the holding in King. You’d think that would be the end of it, right? Of course not.

We have still been getting motions to conceal the identity of the UIM carrier, but in cases where (unlike in King) the insurance company is not the only defendant. Instead of the insurance company bringing the motion, the motion is made by the negligent driver, who argues that they will be prejudiced because they may be more susceptible to a large verdict by being associated with an insurance company whom the jury may view as a “deep pocket.” They argue that King can be distinguished because there the insurer was the only defendant, so there was nobody else to be prejudiced. They claim that it is different when there is another party who could be harmed by identifying the insurance carrier.

Now, this is a stupid distinction, because the rationale in King was that it was an error to conceal the identity of a party to a lawsuit because doing so harmed the integrity of the jury system by permitting “charades at trial,” and causing juries to speculate about the identity of the parties and who the lawyers in the case really represented. One defense attorney who has brought these motions has said that they are granted about half the time.

Your Umbrella Policy Does Not Say What You Think It Says

Mon, 06 May 2013 08:53:42 -0500

An insurance policy is a contract. Insureds are obligated to read and understand their own insurance policy.

Right? Except no one reads an insurance policy. I'm not just taking about Joe Six Pack here. . I'm talking about you, my dear reader: You, me, all of us. Why? Because our busy ~~and lazy~~ lives don't afford us the time to do it. "Just give me the nutshell" is the mantra even insurance lawyers have in their personal lives.

The problem with this is that there are rare instances where reasonable people would expect insurance coverage but they don't because they didn't read their insurance policies. What do we do in these cases when we know that it is reasonable to expect coverage?

The Maryland Court of Appeals gave the wrong answer to this question in Stickley v. State Farm last month. In this case, the plaintiff was riding as a passenger in a car driven by her husband when her husband negligently drove into an intersection and was struck by another car. The accident killed the plaintiff’s husband and left her with serious injuries. At the time of the accident, the plaintiff and her spouse had a motor vehicle liability insurance policy with State Farm Mutual Automobile Insurance Company, and an umbrella policy with its subsidiary State Farm Fire and Casualty Company. No, I have no idea why they do it this way.

New Opinion: Wrongful Death Malpractice Verdict Reversed

Fri, 03 May 2013 09:17:00 -0500

The first thing they do in a communist Nazi country is destroy the jury system. Why do they want to destroy the jury system? Because you represent the line between tyranny and democracy, right and wrong. You have the power. . . You have more power today than the President of the United States. . . . But the question is, will you have courage today? Do you have the God given courage. . . .

This is a line from a closing statement in a wrongful death medical malpractice case in Mississippi. Setting aside that the Nazis were not communist but bitter enemies of the communism, this is just unbelievably over-the-top, right? This line, Plaintiff's closing statement, a jury instruction stating that an element of the wrongful death claim was the "loss of the value of life," led a The Mississippi Supreme Court to revers a 1 million jury verdict in a wrongful death case.

This case is a classic "you could have saved her if you had taken the case more seriously in the ER" case. It happens every day in this country. In this case, the woman presented at the emergency room with a lot of problems: confusion, decreased appetite, tremors, renal disease, respiratory failure, and pneumonia. They did not take her to intensive care but gave her antibiotics, and the woman went into cardiopulmonary arrest. The opinion does not go into the merits of the case but you can be sure the doctor's attorney contested both negligence and causation.

A jury found the doctor negligent and awarded $1 million. The doctor appealed, arguing that the plaintiff's malpractice attorney made improper comments to the jury, including that the damages should include, "the value of a human life." Plaintiff's counsel was echoing the jury instruction that the jury may consider the "value of life" of the deceased when awarding damages.

The whole thing was a mess. It was not a great instruction and maybe a little misleading. Defense counsel also did not properly object to the instruction which would have given the court a chance to cure the problem or allow the plaintiff's lawyer to withdraw the request.

Chief Judge Bell's Replacment

Fri, 03 May 2013 08:38:24 -0500

Five have applied for the vacancy that will be created when Chief Judge Robert M. Bell retires in July from the Maryland Court of Appeals. Three of the applicants are on the Court of Special Appeals: Judges Stuart Ross Berger, Albert Joseph Matricciani Jr., and Shirley Marie Watts. A Baltimore City Circuit Court Judge, W. Michel Pierson, and Baltimore attorney, Mary Natalie McSherry, have also applied.

Chief Judge Bell's seat is the Baltimore seat so all of these applicants are from Baltimore.

I hope Judge Bell hangs around and continues to hear cases as many judges have when they reach retirement age. Go back and read this blog and find how many times I have used this space to suck up to judges.

Selective Insurance In-Person Settlement Negotiations

Wed, 01 May 2013 13:12:19 -0500

An adjuster with Selective Insurance called this week to ask to meet at my office to discuss the settlement of a personal injury car accident case. She said that Selective is looking to meet with counsel as much as possible to discuss these claims.

Selective is a regionally based insurance company that does business in 22 states and is around 46th in market share in Maryland. I'm surprised they would want to dedicate the resources to a face-to-face meeting, but I do appreciate the sentiment. I mean, they will probably offer half of what the case is worth, but I bet they are a lot nicer about it in person.

State Farm used to invite us to its yearly Settlement Day where we would traipse down to their offices in Owings Mills for some food and drink for the exact same awful offers they would have given me on the phone. For reasons that escape me ~~not in the slightest~~ , they have stopped inviting me. Actually, I don't think they do it anymore, but I prefer the more conspiratorial version.

Malpractice Lawsuits Against Foreign Born Doctors

Tue, 30 Apr 2013 11:00:53 -0500

We have been compiling jury verdict information on our website recently so I have been looking though a number of jury verdicts.

Someone needs to do a study of the statistical differences in outcomes in medical malpractice lawsuits against foreign doctors and those born in the United States. I'm telling you, I might be looking at this in an unscientific, way but the difference just seems to jump off the pages at you.

Okay, so why is this? The first theory is that American colleges and medical schools are just better and they are putting out better doctors than those schooled abroad. I'm sure this is true to a point. But I'll bet you if you thin sliced it further, you would find that the same non-American doctors who went to college and medical school here still perform worse at trial than American born physicians.

It is a pretty depressing commentary, really.

Good Samaritan Act Malpractice Opinion

Mon, 29 Apr 2013 09:27:08 -0500

The Maryland Court of Appeals issued an opinion in TransCare v. Murray last week.

This medical malpractice involves the transportation of the minor Plaintiff by helicopter from the Emergency Department at Easton Memorial Hospital in Talbot County, Maryland to the Pediatric Intensive Care Unit at the University of Maryland Medical System in Baltimore City.

The first battle in this case, the battle for venue. Plaintiff filed suit in Baltimore. Plaintiff argued that TransCare Maryland has its resident agent in Baltimore City, (2) the patient's medical records show that the doctors at Easton called the University of Maryland ExpressCare, which is located in UMMS in Baltimore City in order to effectuate a transfer from Easton to Baltimore City, and (3) air transport went to the University of Maryland to pick up a team of health care providers and then transported those people to Easton.

Plaintiff's lawyers also make another argument that we have tried to make as well (and also failed). If you need air transport during a serious medical emergency, this affects everyone in Maryland, including Baltimore City residents, in an equal manner.

Judge Sylvester S. Cox, sitting as Motions Judge in the Circuit Court for Baltimore City, found that while venue was proper in Baltimore City, Talbot County was the more appropriate venue. Tough blow. Let's face it, almost any personal injury case has greater value in Baltimore City than it does in Talbot County.

Let's get to the facts. Plaintiff had trouble breathing due to congestion and was rushed to Eastern Memorial where he was fitted with an endotracheal breathing tube. However, because the hospital was not equipped to handle intubated children, the hospital arranged for a helicopter to transport the plaintiff to a pediatric intensive care unit at another medical center. On board the chopper was an employee of the defendant, a commercial ambulance company under contract to provide ground ambulance services between the medical center and area hospitals. Shortly after take-off, the plaintiff’s endotracheal tube became dislodged, which blocked his airway and led to a drop in his heart rate and oxygen blood level. Members of the flight team scrambled to find an air mask, but could not locate it. The helicopter then made an emergency landing, where the crew located the mask and reintubated the plaintiff. The plaintiff’s cardiac activity returned to normal and the helicopter completed its trip to the medical center.

The plaintiff filed suit alleging medical malpractice. According to the plaintiff, the employee of the defendant failed to provide the requisite standard of care, and that the defendant was liable under respondeat superior. The plaintiff also claimed that he was left blind, deaf, and mentally disabled as a result of hypoxic brain injury from the incident. The defendant moved for summary judgment, arguing immunity arising from the Good Samaritan Act and the Fire and Rescue Act. Judge Sidney S. Campen denied the motion but then reversed himself and granted defendant's Motion for Reconsideration of their Motion for Summary Judgment. How often does that happen? Plaintiff appealed and the Maryland Court of Special Appeals reversed, ignoring the venue issue - a dead loser on appeal anyway - but finding that defendants could not use the Good Samaritan Act as a shield. Defendants than appealed to the Maryland high court.

Maryland Personal Injury Settlement and Verdicts

Fri, 26 Apr 2013 14:22:29 -0500

We have been compiling personal injury settlements and verdicts in a few different Maryland counties in recent years. We have pulled these from our own cases, jury verdict reports, and cases our friends and colleagues have handled.

Does Size Really Matter?

Fri, 26 Apr 2013 12:10:03 -0500

A Nate Silver wannabe breaks down the question of whether jury size matters in these jurisdictions, where a jury's verdict does not have to be unanimous. Clearly, the greater concern is in criminal cases where it does seem a bit odd to convict someone to life in prison, as you can in Louisiana, on a 9-3 vote.

I Had Jury Duty

Wed, 24 Apr 2013 10:31:40 -0500

I had jury duty yesterday which was unbelievably interesting. Turns out Anne Arundel County is a small town. The oral surgeon plaintiff might have done my root canal (it was definitely his office) and the defense lawyer represented the defendant in my first trial with Miller & Zois. (What happened in that case? Thanks for asking. We socked him with a $300,000 verdict in a low property damage case which I enjoyed sharing at the judge's bench yesterday.)

Shockingly, I was not chosen for the jury. I'm not sure if I was struck for cause; I'm going to try to find out. Technically, I can talk about the case since I was not on the jury, but because I'm going to share my impressions of the case - based on nothing but still - I'm going to wait until the case resolves before writing about it. So look for my post next week. It was a very interesting experience where I learned absolutely nothing but really learned a lot, if that makes any sense.

$90 Million Wrongful Death Verdict in Prince George's County That Means Very Little

Mon, 15 Apr 2013 13:08:24 -0500

When I read a newspaper article, I assume it is true. Why I do this defies logic and reason.

A little paper near my home with a limited budget wrote an article on a pedestrian accident wrongful death case in Prince George's County. You probably never heard of the paper. It is called the Washington Post.

The Post writes an article on a $90 million verdict in this case. You should read the comments - you have to read the comments - about the case. People are outraged!

The article left out one important details that could have nipped this conversation in the bud: there is a $100,000 cap on the claim. If there was not, there would have been a $680,000 cap.

It is crazy that the Washington Post can't even reference the possibility the County will not be forking over the full $90 million.

Are they lacking this level of accuracy when it comes to, say, North Korea. "Tensions are increasing as North Korea aims new mid-range missiles at Seoul." Do you think they leave out supporting facts like, "The missiles are armed with water."

Get the Baltimore Sun, the Washington Post, the Wall Street Journal and probably 10 different news magazines. Everything except for the Post rarely gets more than a passing glance. So it is particularly scary that my go-to source is putting out an article like this that is so unbelievably out of extent as to make the entire article more uninformative than informative for readers. If you are a layperson trying to understand our civil justice system in Maryland or even what will actually happen in this case, you would be better off not reading this article. That is a sad commentary.

I realize newspapers need to sell papers. So I tolerate it when they bury the lead and put it at the bottom of an article like this "This case is capped at $100,000 so after attorneys' fee, this poor family will get less than $60,000 for the loss of their dead daughter." But we don't even get that here.

New Maryland Opinion on Violation of a Statute and Causation

Mon, 15 Apr 2013 08:35:23 -0500

The Maryland Court of Special Appeals issued its opinion a few weeks ago in a negligence per se case, Paul v. Blackburn Limited Partnership. If you are a personal injury lawyer in Maryland, this is not optional reading. Because I'm betting money someone is going to win a legal malpractice case in Maryland one day because they did not heed the implicit lesson that just might be in this case.

The defendant in this case owned an apartment which had an outdoor pool. Unfortunately, you know where this is going. Just about every pool case is the worst case ever. A three year-old boy wandered into the closed pool area. When the pool manager and lifeguard unlocked the gates, they found the plaintiff’s son unresponsive and submerged in the water.

(The question you have to be asking - the one far more important than the legal issues in this case - is how on earth did this happen? The boy's 10 year-old half-brother was watching the child. The boy threw a toy, the 10 year old ran down a hill to get it, leaving the child alone, and when he got back he did not find the boy. I will have a 10 year-old the same time I have a three year old. I also have a swimming pool.)

As a result of the incident, the plaintiff’s son suffered a severe anoxic brain injury, leaving him nonverbal, visually impaired, dependent on a gastric feeding tube, and requiring constant care from others. The detective investigating the incident concluded that the plaintiff’s son had managed to squeeze inside through the front gate, because the lower half of the gate was loose. In addition, some parts of the fence could be pulled open due to missing metal crossbars.

The plaintiff filed suit alleging negligence per se and negligence. Quick question: When you think you may have negligence per se, do you plead it in the complaint? You do? Okay, you're a big liar. Our law firm has never done it and I have yet to find anyone who says they plead negligence per se as an ordinary practice. Heads up: I still can't imagine a court kicking the case if you don't, but as you will see below, you really don't want to take the chance because the court here seems to be assuming that it has to be plead in the complaint. It is like I just told my law partner, I can't imagine in a million years a court would actually require you to plead this in the complaint. But when the appellate decision on my case when I failed to mind the ruling in this case was coming down, I would be on the edge of my seat (You may not like this sentence, but I don't know how else to day it). One rule of personal injury practice: do everything you can easily do without any risk of harm if you would be sitting on the edge of your seat when you were called out for your failure to do it.

Anyway, incredibly, the plaintiff's lawyer in this case did plead negligence per se, claiming in the complaint that the defendant was negligent per se by failing to comply with Maryland's COMAR regulations, the Montgomery County Code "MCC", and the Code of Montgomery County Regulations (“COMCOR”). Second, the plaintiff contended that the defendant was negligent in breaching its duty of care to maintain the pool in a reasonably safe condition for all residents of the apartment.