A few points have been raised by other folks that I think are interesting. First- apparently there is a very remote likelihood of settment in any case involving WMATA (Washington Metropolitan Area Transit Authority). Because of this, many attorneys with experience in litigating against WMATA think filing suit quickly is the best way to make a recovery for the client without delay.

I get that, kind of. Sounds like litigating against MAIF. There's no point in negotiating, so many think it is best to just file.

Others have pointed out that in a case like this where there is a mass injury with many potential lawsuit filings, there is a good likelihood that the cases will be consolidated, so filing first may increase the chance that the early filers will have a significant role in controlling the course of the litigation.

Maybe I just have more of a fear of playing catch-up than other attorneys. The points above seem valid, but I would be interested in the "early filers" views on what the disadvantage to the client is as a result of waiting, other than the obvious time delay.

This was a bad accident that involving several deaths and many more injuries. Whenever something like this happens, I think it is expected that there will eventually be litigation. The litigation about this accident has already started. Train accident: June 22, 2009 at 5:02 p.m. First lawsuit filed: June 24, 2009. Two days later. The legal system generally moves like global climate change- slowly and inexorably. A lawsuit being filed two days after the injury is very, very fast.

Maryland has a three-year statute of limitations. This means that an injury lawsuit must be filed within three years of the date of the injury or it is forever barred. In this case, the victim is fifteen. Under Maryland's SOL, his lawsuit would need to be filed within three years of his eighteenth birthday.

My practice on injury claims is to avoid filing a lawsuit until the client is at Maximum Medical Improvement. All this means is that the injured person has recovered fully, or has reached the point where further medical intervention would not be helpful. The reason is that I want to have a full and complete picture of the client's damages before filing suit. This helps in many ways, such as in selecting and identifying the proper experts, determining the amount of damages to be sought, and allowing pre-suit settlement negotiations. It also helps to minimize playing catch-up, like trying to collect medical records and bills for a client who is still in treatment while simultaneously preparing the case for trial.

I don't know the attorneys representing the plaintiffs who have already filed suit. I'm not saying they did something wrong- there are a lot of "right ways" to handle a personal injury case. Sometimes cases are filed early because that is what the client wants. I am sure there are other reasons as well. I just usually take the opposite approach.

I am curious as to what the advantage to the client is as a result of filing so quickly. Obviously, starting the process sooner means completing it sooner. Other than that time savings, what does such an aggressive stance get the client? Maybe the publicity translates into a stronger negotiating position for settlement?

There are three government employees involved in a 5 million dollar lawsuit against a Domino’s pizza franchise in Ocean City, Maryland. DeMaune Millard, Mayor Dixon’s chief of staff, Jonathan Carpenter, a state Department of Transportation executive, and Donald R. Huskey, an assistant city solicitor, are the plaintiffs.

These three folks are suing the pizza place because they were denied service, and because it took the restaurant’s staff approximately ten minutes to let them back out of the restaurant after the decision not to serve them. These plaintiffs were in O.C. for the annual Maryland Association of Counties conference in August, 2008. They left an official event that ended at 10:30 p.m. at about 1:30 a.m., and were shortly thereafter buzzed into nearby pizza place. They say they weren’t drunk, and were denied service for no reason. Unsurprisingly, the pizza place says the opposite- that they were intoxicated, loud and uncooperative, and that they made a threat. Specifically, that they said the manager was “a punk, and that if he was in the city, things would be handled differently.”

There are no allegations of race discrimination in the suit, although it notes the three plaintiffs are African-American and that the store employees are “Middle Eastern”, Asian, or white.

The three are being represented by an attorney in the city solicitor’s office who is moonlighting on his own time. City Solicitor George Nilson was unaware of this until asked by the media.

I have a few thoughts about this. I doubt I would gotten involved in this case if these plaintiffs had contacted me.

The news articles make a big deal of the fact that Judge Nance has had judicial discipline issues in the past. I agree that the ten days was probably an excessive punishment. The detention center, particularly in the summertime, is a miserable cesspool. But I don’t have a problem generally with judges insisting upon the proper respect and decorum while court is in session. Yelling out and waving is not acceptable in court or in any other formal setting. Even elementary school children know that if they want to talk, they need to sit quietly and raise their hand.

I have only briefly appeared before Judge Nance, and I have never seen him do anything I though was improper. Some of the commentators in the various news pieces have claimed that attorneys are reluctant to report improper conduct by judges because of fear of retaliation. I think one part of the news coverage tells the most important part of the story:

I spent the majority of the weekend working on trial preparation for a serious traumatic brain injury case that goes to trial in Mongomery County Circuit Court at the end of the month. I was a big L.A. Law fan in my youth, and I don't remember ever seeing Susan Dey spending the weekend summarizing deposition testimony and medical records. If CSI can make forensic lab tests seem dramatic by playing "science music" in the background, why don't lawyer shows ever show the boring but neccesary stuff that leads up to the fun part?

I got a good break Saturday by getting in touch with my Baltimoron roots at Honfest. I enjoyed watching the crowd, especially the people dressed up as "Hons", and the people not dressed up as "Hons" (and the two were not that easy to tell apart). Apparently Honfest is an irony-free zone. This costuming issue also spawned a detailed discussion of whether a passerby was a man dressed up as a 1950's Baltimore Housewife, or just a poorly outfitted transvestite. A great way to spend a pretty summer afternoon enjoying a cool beverage. I did think it was strange that the only beers for sale were Heineken, Newcastle Brown Ale and Miller Lite. How can you celebrate the glorious quirkiness of the biggest small town in America with no Natty Boh? That ain't no Bawlmer, Hon.

This morning I was back in my old stomping grounds, Baltimore City Circuit Court for a hearing on a defense Motion for Summary Judgment in a slip/fall on ice case. I was before the Hon. Lynn K. Stewart for the motions argument. I had never appeared befpre Judge Stewart before in a civil case, but I had been in her court many times on criminal cases (in another life I ran the civil department at a Baltimore law firm specializing in criminal defense, so in the course of "helping out" I was before Judge Stewart many times). I have always loved being in that court because Judge Stewart is always prepared and on top of the issues, moves the docket along promptly, shows a quick sense of humor and does not suffer fools.

Slip/fall cases are always tough to prove, and have only gotten tougher recently with the Court of Special Appeals' opinion in Allen v. Marriott. The defense contended that I had no proof of notice of the dangerous condition because the area of my client's fall was inspected four times that day and no ice was discovered. I opposed the motion by arguing that since the temperature was never below freezing the day of the fall, the ice had to have been present, but not discovered, during each of the four inspections.

This argument did not change my opinion of this particular judge. She was familiar with all of the issues raised in the parties' motion papers and cut directly to the issue at the heart of the motion. I won the hearing, and my case will now go to trial. Moreover, our 10 a.m. hearing started at 10:03, and I was back in the car on my way to the M&Z mothership in Glen Burnie, Maryland by 10:39. That's how a motions hearing should work!

This case involves a dispute over a real estate investment made by former Baltimore Raven Michael McCrary. The Hon. Evelyn Omega Cannon entered a 33 million dollar damages award after holding various defendants in contempt, entering a default judgment, and precluding defendants from participating in the damages phase of the proceeding.

The Court of Special Appeals held that Judge Cannon abused her discretion because by failing to follow the proper procedures for a contempt proceeding, and barring defendants from participating in the damages proceeding.

The case is now being sent back to the Circuit Court for Baltimore City for a retrial on the issue of damages.

Michael McCrary won a Superbowl with the Batimore Ravens in 2000, playing defensive end on what many have called the greatest defense in NFL history. He is a member of the Ravens' Ring of Honor.

The CSA panel that heard the case consisted of Judge Eyler from Annapolis, Judge Wright from Towson, and the Hon. Emory A. Plitt of the Circuit Court for Harford County, who was specially assigned. I point this out for the conspiracy theorists out there- none of these judges is from the Redskins-loving DC suburbs (although Anne Arundel County is rife with Steelers fans).

Disclaimer: The author of this post bleeds purple and black, and thinks that the name "Redskins" is, in fact, racist. Chris Rock got this one right, although I won't restate it here.

A case where the injury is a burst eardrum that heals with no hearing loss will be valued much differently that a case where the physical injury to the ear resulted in a permanent imparment. You tend to see ear injuries fairly often in carr accident injury cases. I think this is because often the force of the collision will slam the side of the head into a door pillar or window, or because of the force of an exploding airbag.

I am handling a case now in the Circuit Court for Prince George's County involving an ear injury. My client was involved in an auto accident, and now suffers from permanent tinnitus (ringing in the ears). She has recieved 25k from the liability insurer. I don't think this is enough to cover her damages, so I am waiting to see what value the jury places on a permanent, irritating, ringing in the ears.

I have often written about the mostly imaginary problem of frivolous lawsuits. I say “mostly imaginary” because although I am sure meritless filings are made, I believe existing law and the rules of court provide ample mechanisms to discourage the filing of meritless claims.

Md. Rule 1-341, which is titled: “Bad faith- Unjustified proceedings”, is one of these mechanisms. Basically, this rule says that if any party brings or defends a pleading in bad faith or without substantial justification, the court may order that party or its counsel to pay the costs of the other party, including reasonable attorney’s fees.

Just one more way the law protects against frivolous lawsuits. I wonder why we never hear the “tort reform” people talk about these kinds of existing protections? Maybe they have an agenda outside the actual facts of the “lawsuit abuse” problem they claim exists?

One of the recipients of this year’s Civil Justice Award was Diana Levine. Who’s that, you ask? Have you heard of Wyeth v. Levine? Yeah, that Levine.

Ms. Levine lost an arm due to an inadequate warning label on the drug Phenergan. A Vermont jury awarded her 6 million dollars in damages. The drug maker appealed this case all the way to the U.S. Supreme Court. The argument was that because the FDA approved the warning label, Ms. Levine’s state tort claim was preempted by federal law. Well, they lost. Because of Ms. Levine, victims of pharmaceutical negligence can still pursue fair compensation through a claim of negligence, to be determined by a jury of ordinary citizens.

Her struggle shows the many levels on which the civil justice system can be a positive force for change. First, Ms. Levine was able to secure compensation for her injury. Second, Wyeth has the opportunity to change the drug labeling to protect consumers from similar occurrences. Finally, this protects consumers as a group by ensuring that drug manufacturers can not merely do the bare minimum required by the FDA and escape liability for the foreseeable consequences of negligent acts.

Miller & Zois, LLC has recently launched the drugrecalllawyerblog which may be of interest to people injured by dangerous pharmaceutical products and their attorneys. Look there for regular updates on issues of concern in this area.

Saturday night at 11:53 p.m., I received the following comment to a post I wrote on the "tort reform" movement and the issue of frivolous lawsuits:
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IP Address: 67.122.211.65
Name: Bob
Email Address: bob@gmail.com
URL:
Comments:

"Apparently these are a huge problem."

Duh. Are you for or against our legal system?

Frivolous lawsuits DO hurt the economy. Your article is two-faced and you sound like a greedy attorney. Go get a life you scumbag.
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OK. This is me again. I hereby issue an open invitation to "Bob" to contact me if he is seeking a real opportunity to discuss frivolous suits and tort reform. I am FOR our legal system, and I believe it has sufficient systemic controls to address meritless lawsuits. For example, the summary judgment procedure is designed to weed out meritless claims. After you get past that hurdle, then you have to convince six jurors who would rather be doing anything else.

Since I'm part of the system, I admit I am biased. But I do not believe my post can be described as two-faced, since I think it is clear about my beliefs and which side of the discussion I am on. Also, I think "greedy" is an unfair characterization, although I am committed to helping my clients seek the maximum compensation permitted under the law. My name and phone number are right on the website, and I stand behind my views.

So, "Bob", if you want to step out from behind the cloak of anonymity the internet affords you, I invite you to email me and tell me why I'm wrong. I will be happy to address any points you raise.

P.S.: Perhaps I do need to "get a life", but I'm not the guy responding to blog posts on tort reform at 11:53 p.m. on a Saturday night. I can only conclude that "Bob" lacks formal legal training in the "pot-kettle doctrine."

Maryland law allows discovery of how much a professional witness earns from testifying, as well as what percentage of his overall income is earned from working as a paid witness. At Miller & Zois, we don’t take the doctor’s word for it. Our practice is to issue a subpoena for the financial records that document the amounts the DME (Defense Medical Exam) doctor is paid by insurance companies and defense attorneys.

The doctors do not like this very much. Usually the response we receive is a Motion for Protective order from the doctor’s attorney asking that the records not be produced. If the court orders that the financial records be produced, usually that is the last you see of the DME doctor. Doctors will generally refuse to testify before producing these records.

I had a hearing on one of these motions filed by an DME doctor last week in the Circuit Court for Montgomery County. The doctor lost. He was ordered to produce the 1099 and other tax forms showing how much he has been paid in the last two years by insurance companies and defense attorneys. I am waiting to see if he appeals or just bails from the case. Every time this particular doctor has been ordered to produce these records, he has either appealed or withdrawn.

The doctors and the defense bar think we do this because we know that if the records are ordered to be produced the doctor will refuse to testify. Obviously that makes my job as plaintiff’s counsel easier. The truth of the matter is that we subpoena these records because it is the only way to ensure a good cross-examination. Otherwise the witness can make up any number that he thinks won’t make him look bad, or claim not to know the answers at all, because some mysterious “bookkeeper” has that information. I don’t think it’s my fault that these doctors will refuse to testify before they admit the extent to which their opinions are bought and paid for by the insurance industry and the defense bar.

Public Citizen's spokesman (who is also an M.D.) states that this "is troubling because it indicates many states are not living up to their obligations to protect patients from bad doctors." Maryland is ranked 45th and has been one of the ten worst states for the past six rankings.

In rebuttal, Irving Pinder (Executive Director of the Maryland Board of Physicians) called Public Citizen's findings flawed.

"I've always argued that Public Citizen's statistics are very misleading because ... they assume the pool of doctors is the same in every state," Pinder said. "Maryland has some of the best doctors ... in the country. If you need to go in for major surgery, would you want to be in Alaska or Maryland?"

Gee, Irv, I don't know. Is taking out a kidney major surgery? Let me find out if Alaska lets doctors remove the wrong kidney, lie about it, and then keep practicing medicine. I'll get back to you.

The conduct of licensed attorneys is governed by the Court of Appeals of Maryland. The Court sets the standards for admission to the Maryland bar, and handles disciplinary issues regarding attorney misconduct. The Attorney Grievance Commission acts as “prosecutor” of attorneys accused of misconduct.

I would like to contrast two cases to illustrate how this process works.

First: the case of attorney Jill Johnson Pennington. This lawyer was hired to handle a personal injury case. She failed to competently represent her clients by missing the statute of limitations. This effectively ended any chance the clients had to recover in court. OK. That isn’t good. It only gets worse. Compounding the problem, the lawyer lied to the clients about whether their case had been filed. Then she presented them with false settlement paperwork making it look like the party responsible was settling. In reality, the lawyer was paying her own funds to make the faux “settlement”. She never told the clients what had happened or about the possible malpractice claim they had against her.

It is black-letter law that attorney discipline proceedings are conducted for the protection of the public. The lawyer was disbarred. It’s a no-brainer.

If you lie to clients to cover up your own malpractice, and fail to advise them of their rights as a result of your misconduct, you deserve to be disbarred. Clients need to know that their attorney has a duty to them that will be enforced. The system cannot work if there is no trust that attorneys are acting in clients’ best interest, or if they may fail to do so without any threat of repercussions.

Second: The case of Brian M. Levin, M.D. Dr. Levin is a urologist. He was treating a patient with a cancerous tumor on the left kidney. Dr. Levin mistakenly removed the (healthy, except for a benign growth) right kidney instead. Then, he never told the patient he took out the wrong kidney, even when the patient and other doctors called him about the mistake. He never informed the hospital of his mistake or documented it in the operative note.

The Maryland Board of Physicians found that Dr. Levin violated the standard of adequate care, engaged in unprofessional conduct, made a false report in the practice of medicine, and made a willful misrepresentation in treatment. Now, for the sanction imposed- a public REPRIMAND. Dr. Levin also had to write a letter of apology, undergo counseling, monitoring, and continuing education.

Lawyer commits malpractice and lies to cover it up. Sanction- Disbarment.

Doctor commits malpractice and lies to cover it up. Sanction- told not to do it again and must say he is sorry.

This is a bad case for injury victims and personal injury attorneys. My reading of the opinion is that it greatly broadens the scope of the doctrine of assumption of the risk in slip and fall on ice cases. Now, a Plaintiff cannot avoid the assumption of risk defense merely because they fell on ice they never saw.

Essentially, if it is February, and wet, you assume the risk of falling on ice because it is common knowledge that the temperature goes below 32 degrees in February and that water turns to ice when it is that cold. I think this is ridiculous. Using this analysis, shouldn't those factors mean that property owners are on inquiry notice of a dangerous condition (ice) under those facts? I doubt we will see an apellate court in Maryland make such a holding.

With this coming so close to the Court of Appeals' opinion in Grady v. Brown, this is not shaping up as a good spring.

I am starting to believe that whatever can go wrong will. I also just learned that the proposal to raise the amount for jury trial prayers to $20,000.00 died in the General Assembly's House Judiciary Committee.

It seems like the burden of proof is a burden that just gets heavier. This all underscores the need for injury claimants to secure experienced trial attorneys to guide them through these legal minefields.

Also, we are extending a big M&Z welcome to John Cord. John is an attorney who will be working with us on mass torts, medical malpractice and auto negligence cases. He hasn't made it to the profiles page yet, so remember you heard it here first.