Baltimore Injury Lawyer Blog

Recently, we have been seeing more and more problems in trying injury cases involving Maryland uninsured or underinsured motorists.

Md. Insurance Code Ann. § 19-511 states the procedures that must be followed in settling UM/UIM claims. We call it the "pay to play" statute. Basically, it says that once the liability carrier tenders a policy limits offer, the UM carrier has 60 days to decide whether to consent to acceptance of the offer. If the UM carrier says no, they have to pay the inured person the amount of the settlement offer.

Essentially, this gives the liability carrier 60 days to decide whether to waive subrogation. If they don't waive, they have to pay the amount of the liability offer to the claimant, but the UM carrier retains its subrogation rights.

That's all well and good. The problem comes in when the liability carrier tenders the policy limits within 60 days of the trial date. The statute gives the UM carrier a mandatory 60 days to decide what to do. What has been happening is that when the liability policy is offered 60 days or less from trial, UM carriers have been objecting to postponement requests to allow for the completion of the 60 day period.

This has the effect of depriving the plaintiff of the amount offered. The plaintiff cannot accept the liability offer without the consent of UM, while the UM carrier has the entire 60 period to decide, and is simultaneously objecting to a continuance to allow for the statutorily required period. This clearly frustrates the intent of the statute and renders it ineffective in these factual circumstances.

There has to be a solution to this problem. I can think of a few possible ones. Maybe we will get an appellate opinion directing administrative judges to allow continuances to comply with the statute. This would require some judge to abuse their discretion and deny a continuance in such a situation. That shouldn't be too hard, since I understand several judges in Maryland are doing exactly that. Or perhaps the UM carrier's actions in trying to have its cake and eat it too will be determined to be indicative of a lack of good faith.

Probably the best way to fix the problem would be to amend the "pay to play" statute to fix this loophole. This could be a good issue for the Maryland Trial Lawyers Association's Legislative Committee to take a look at.

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On Page Two of today's Maryland section, the Baltimore Sun's Laura Vozzella reports the unusual way the paper learned of the apppointment of the Hon. Mary Ellen Barbera to the Court of Appeals of Maryland. Apparently, Judge Barbera was attending a medical appointment when she was overhead making telephone calls to various people to let them know of her appointment to the state's highest court. It turns out that there was a Baltimore Sun reporter a sitting few seats away.

This is something injury lawyers should keep in mind. You never know who is around to hear what you say. Your potential jurors, witnesses or opposing counsel may hear your comments in elevators, waiting rooms, or courthouse hallways. Remember, discretion is the rule of the day.

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The New York Times has an interesting article about the use of expert witnesses in court cases. Essentially, the article explores the idea that expert witnesses are inherently biased towards the side who retained them.

As a personal injury lawyer (something I'm proud of, by the way) I have quite a bit of experience dealing with expert witnesses. My experience is that there is some truth to what the article says, but it isn't fair to paint every expert witness with the same brush.

In Baltimore injury cases, there are several kinds of expert witnesses who may come into play. Most often you see medical experts, as well as economists, life-care planners, vocational rehabilitation experts and car crash reconstructionists.

As far as medical expert witnesses go, on the plaintiff's side normally the expert presented is one of the treating physicians. Generally these are not "hired gun" experts hired specifically for litigation, but simply the treating doctor who testifies about the injuries sustained, the medical treatment, and the reasonableness of the medical bills.

On the defense side, the reverse is true. Normally we see the "usual suspects"; doctors who are repeatedly retained as witnesses by the same insurance companies and defense firms. Often these doctors are designated as expert witnesses by the defense before they even know anything about the case, the injuries claimed, or the plaintiff. Could it be that the insurance companies have some idea what these doctors will say? Common sense tells us that if they were not providing the opinions the insurance companies want, there would be very little repeat business.

In Maryland injury cases, the defense has no right to a medical examination of a plaintiff. Such an examination can only be obtained by a court order, or if both sides agree.

At Miller & Zois, we make it a point to aggressively protect our clients' interests during this process. A forced medical examination is one of the greatest invasions of privacy imaginable. We do our best to make sure that this process is conducted in a way that is fair. Sometimes this means forcing the defense to obtain a court order to examine the plaintiff if we are not able to arrange acceptable terms through negotiation. We also go after these witnesses aggressively by obtaining the information needed to conduct an effective cross-examination. Often this means subpoenaing financial information to show that these witnesses make a lot of money testifying for insurance companies, so we can show the jury the financial interest these doctors have in providing opinions that are favorable to the insurance companies that hire them.

All plaintiff's lawyers should review their practices regarding defense medical exams. Our Attorney Help Center has examples of sample correspondence and pleadings directed at this issue.

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I just read an article in The Daily Record discussing the flood of incoming law students at Baltimore City's two law schools. There are only two law schools in Maryland, The University of Maryland School of Law ("UMD") and the University of Baltimore School of Law ("UB"), both located in Baltimore City.

The article reports that UB plans to admit 340 first-year students this fall out of 2700 applications. UMB plans to admit 317 students from 4000 applications. Combined, that is 6700 applicants competing for 657 seats. Even a liberal arts grad like me can tell that those are not good odds. These statistics show that a law degree is still in great demand.

This is curious, because the same publication also reports today on the lack of employment opportunities for recent law graduates. The article confirms what we all know- the top 10% of each graduating class generally has no trouble finding employment, whether in a prestigious law firm of through a judicial clerkship. But for the other 90% of law grads, the legal job market is tough, with many new attorneys getting by on temporary contract work (usually consisting of document review projects that are mind-numbingly boring and could be done by a reasonably intelligent high school student). They have quickly realized that the 100K in student loans may not have been the best idea. This is something law schools do poorly. They don't do a good job of preparing the overwhelming majority of students who are not in the golden 10%.

There are many successful attorneys who took career paths off of the "law review- top10%-clerkship-big firm" path. Often, personal injury lawyers in particular follow alternative career paths. In our firm we have personal injury attorneys whose careers have had stops in big law firms, insurance house counsel offices and small law firms. Some of us went to law school immediately after college. One of our attorneys spent several years in law enforcement before pursuing a career as an attorney. The fact is that I know more top-notch lawyers who weren't in the top 10% of their class than I do those in that category.

My point, if I still have one, is that there is no one set path to success. Law schools are good at supporting the top students, but not at preparing the average law graduate for the reality of the job market. And academic success is not neccessarily a predictor of success practicing law. The skill set required to be a good lawyer encompasses so much more than legal analysis. Organization, interpersonal communication, marketing, writing, personal integrity, professionalism and a desire for excellence are also required, and don't always show up in a GPA.

Most prospective law students will end up in the bottom 90% of the class (90% of them I suppose). These students should persevere- your GPA doesn't indicate your potential future success. However, law schools should do more to make sure these students know what they're getting into before they take out 100k in student loans. There's not always a pot of gold at the end of the rainbow.

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It was announced today that Governor O'Malley has appointed a new judge to the Circuit Court for Baltimore City. Marcus Z. Shar, a Baltimore City medical malpractice lawyer, will be the newest member of that court. I think this is a great appointment. I have met Judge Shar a few times through professional associations and his involvement with the University of Baltimore School of Law's trial advocacy program.

He strikes me as a very intelligent, open-minded person who has the right demeanor for a trial court judge. I think this is a good choice all around.

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Hey, plaintiff’s bar! Wake up! Summary judgment isn’t just for defendants anymore!

Too many of us view the summary judgment process as an obstacle to be overcome, rather than as an effective offensive weapon. Almost since the beginning of time defendants in civil cases have used the summary judgment process as an attempt to weed out claims that have a weak factual or legal basis, or where an affirmative defense may apply.

But to quote one of my favorite rap artists, Ice Cube: “The system is there to bury you. Why can't it be there to save you?” Esquire, January 2003.

I like to file offensive summary judgment motions where appropriate. There are a host of factual situations where such a motion has merit. I have filed these directed at the issue of liability in cases involving rear-end collisions, uninsured/underinsured motorists and the boulevard rule. The Attorney Help Center at www.millerandzois.com has several examples of these types of motions.

Often, the facts of the collision are not in dispute prior to trial, but at trial the defense may attempt to argue contributory negligence, or that under the circumstances that the defendant was not negligent. These claims may have a higher chance of success in front of a jury rather than the judge.

I like to take this option away from the defense whenever I can. Any experienced injury lawyer will tell you that it is in your best interest to narrow what you must prove at trial as much as possible. If summary judgment is granted, it is possible to position your case as a trial on damages only, and that is the name of the game. A ruling in your favor on liability lets you focus all of your efforts on proving damages. Remember, in drafting your proposed order, make sure it is tailored to exactly the relief you want. If you want a trial on damages only, put that in the order!

Plus, it’s always fun to put the shoe on the other foot for a change. I doubt defense counsel enjoy responding to summary judgment motions any more than we do.

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I recently finished a jury trial in a really tough uninsured motorist case. This was a case involving a woman who was struck as a pedestrian while she was crossing a parking lot. What made this particular case so difficult was my client’s history.

This unfortunate lady was involved in two other accidents the same month, luckily after the accident I was handling. Additionally, she had no less than five prior injuries to the same body part, one of which resulted in a 20% permanent partial disability. Her damages in my case included a torn lumbar disc documented by discography and a corrective surgery.

This case was against State Farm, an insurer known for its hardball tactics and low settlement offers. In fact, the American Association for Justice recently named State Farm the 4th worst insurer for consumers. The last settlement offer we received was $7,000.00, which we viewed as very low in light of the client’s injuries.

State Farm is unusual because in UM cases, once they establishes what they think the case is worth, they send the claimant a check for that amount. This is regardless of what recovery is eventually made. Namely, if the client had gotten nothing, she wouldn’t have had to pay it back. This is an admirable principle, but it would be more effective if the values placed on these matters were in the range of the actual value at trial.

In defending this case, State Farm followed its established “deny, delay, diminish” playbook. First, the insurer argued the accident was really the client’s fault anyway, despite the uninsured driver being ticketed, failing to appear in traffic court, and failing to appear for our trial. Second, they argued that her injury and surgery weren’t related to the accident, and that she only sustained a minor soft tissue injury. To that end, they hand-picked a doctor to create a five-page report saying so.

Thankfully, the jury was able to see past these tactics, and ultimately awarded my client $60,000.00. This is even though this case was in Anne Arundel County, which most injury lawyers view as a very conservative jurisdiction.

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I received a motion to compel my client to execute a medical records authorization in a personal injury car accident case earlier this month in Prince George's County.

If you are every faced with this issue, you can click here for my response. Even if you are not in Baltimore, the logic of the motion will apply to most jurisdictions and most states have rules similar to the Maryland Rules on this issue.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Car Accidents , Trial Strategy

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The tragic case of the beating of Zach Sowers is once again making news in Baltimore City. If you don’t know already, Mr. Sowers was beaten to death while walking to his home on the outskirts of Patterson Park in east Baltimore. The attack left him in a coma, and he eventually died as a result of his injuries. However, the three defendants in the case took plea deals that precluded prosecutors from charging them with murder if the victim subsequently died.

Anna Sowers, the victim’s widow, has been vocal in her displeasure with the way the case was handled by the Baltimore City States Attorney’s Office, and has advocated for changes in the law to give more protection to victims.

Maryland’s Daily Record reports that a protest was held yesterday in front of the Clarence Mitchell Courthouse. The protest was organized by Mrs. Sowers to call for the firing of Margaret “Marty” Burns, official spokesperson for the state’s attorney’s office. This stems from comments attributed to Ms. Burns in a local legal publication where she apparently minimized the injuries to Mr. Sowers in the context of defending the plea deals given to his attackers. Apparently she characterized his appearance as that of a “sleeping baby” despite the fact that he had just been beaten into a coma by three men. These comments were refuted in a public statement by Mr. Sowers’ treating physician.

We do not handle criminal cases at our firm. I am interested in this case because we deal with injury victims every day. This is a textbook example of how not to interact with victims, their friends and family. I understand that all of us occasionally let slip something that might be better phrased. However, when media and victim relations is your whole job, I think we can expect a little more intelligence and sensitivity. Regardless of the accuracy of the statements Ms. Burns made, the fact that she made them at all, in a high-profile case, in an interview with a reporter, is reason enough to question her judgment. This is especially important in a justice system that depends on cooperation from victims and witnesses. If this is an example of how victims and their loved ones are treated, its easy to see why there are segments of the community that have very little faith in the system.

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I just read on CBS News' website that a New Jersey man has filed a lawsuit against the sandwich chain Subway. Apparently, this gentleman bought a sandwich, and it turned out to have a seven-inch serrated knife baked into it. He bit into the part containing the knife's handle, but didn't swallow any of it.

He says that he got a stomache ache for a few hours, and that the knife "could've slashed" the side of his mouth.

It's certainly possible for reasonable lawyers to reach different conclusions on any given set of facts. However, I don't think I would have agreed to get involved in this man's case. I believe that news stories like this do more to undermine the civil justice system than any amount of insurance industry lobbying or tort reform.

I support the right of individuals to seek redress when they are injured by another's carelessness. I agree that there is no reason a customer should be sold food with a dangerous item in it. I also think its ridiculous to file a lawsuit over a tummyache, and the possibility that you could have been injured and weren't. This doesn't sound like anything that couldn't be fixed by a refund of the purchase price and a bottle of Pepto-Bismol.

I think its a shame that a big portion of the general public (and therefore the jury pool) forms their impression about personal injury lawyers and injury plaintiffs based on stories like this one. It isn't fair that victims of serious or catastrophic injuries will be stereotyped based on the media hype given to someone who wasn't even hurt, but filed a lawsuit anyway.

Posted by John Bratt | Permalink | Email This Post

Posted In: Frivolous Lawsuits

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The Maryland Daily Record's website reports that Attorney General Doug Gansler held a press conference to address the issue of dogfighting in our communities. The article notes that this is most prevalent in Baltimore City.

As a mascot, he brought in a pitbull terrier named Kane as an example of the kinds of animals commonly used for this brutal, offensive excuse for a "sport".

Baltimore injury lawyers see a lot of children injured as a result of vicious or unsupervised dogs. These injuries usually lead to moderate medical bills, but significant emotional trauma and scarring. Occasionally children are permanently disfigured or killed.

It is important to make sure to contact the appropriate authorities. They will conduct an investigation, and sometimes a hearing to determine what to do about an animal that causes this kind of injury. These hearings are recorded, and can be useful in presenting a claim for injuries from a dog bite.

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I always tell people that a big part of what plaintiff’s injury lawyers do is pure theater. Of course you need to have a solid grasp of the law and the procedural rules, but you also need some skill as a storyteller. I think this is most important in addressing the issue of damages.

In serious injury cases, this is paramount. The name of the game is driving home the seriousness of the harm to the factfinder. Pretty much every injury lawyer has their own favorite ways to do this, and there are volumes written about proving and demonstrating damages.

Medical damages are easy. They are what the medical bills say they are. The same goes for past lost wages and to some extent, future lost wages. They are easily proven using a witness from the employer, disability records from the physician, and sometimes by using an economist to calculate future lost wages and/or lost earning capacity.

The tough part is proving non-economic damages, namely pain and suffering and damages for permanency. This can require some creativity. Obviously, it’s easy to get the injury victim to testify about the pain and other difficulties caused by the injury, or the difference between their capabilities both before and after the injury. One disadvantage to this is that such testimony may be seen as self serving.

This is a good time to make use of demonstrative aids. I handled a serious injury case where my client had a severe shoulder injury that resulted in a complete shoulder joint replacement. This poor gentleman ultimately needed to have his complete shoulder replacement revised. All this means is that he had problems with his implant, and had to have a new one put in. I asked him to talk to his doctor, and see if the doctor would save the old replacement joint when he took it out. He got it and gave it to me to save as an exhibit.

Now, this client looked okay when you saw him sitting and moving around. He didn’t seem like someone who had a serious injury. But when you picked up the heavy hunk of metal that replaced his humeral head, you immediately had a new perspective on exactly what this man had gone through. I produced photographs of the implant in discovery, and took it with me to the court-ordered settlement conference to show the judge and defense counsel. I don’t know how much of a difference it made, but I do know that the case settled for a significant amount. I didn’t get to try and use it at trial, but I truly believe that any juror that picked this thing up and held it would instinctively reach up and touch their shoulder immediately afterward, just like I did the first time I held it.

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