Baltimore Injury Lawyer Blog

It is generally a good thing when a law firm issues a press release and as a result gets mentioned in the newspaper. I mean, that's the idea right? A press release is designed to garner attention. But it's not nearly as good if the attention consists of the reporter making fun of the content of the release and the law firm's motive for issuing the release in the first place.

Here, the Baltimore Sun's Jay Hancock takes aim at a local law firm with a blog post titled "Bowie & Jensen: Look at us! We're suing Ne-Yo!"

Hancock's primary target is a paragraph in the release listing all of the various awards and accomplishments of the defendant in the suit, whom I gather is a pretty well-known R&B singer. Here's what Hancock thinks: "Bowie & Jensen has put out a news release that's less about the merits of the case and a lot more about the fact that they're suing a famous musician and want you to know it."

Hancock plays it fair by contacting the author of the release for comment. But before revealing the author's explanation, Hancock comes off the top rope with a foreign object: "Karen McGagh, who wrote the press release for Bowie & Jensen, disavows any and all intention to draw cheap attention to the firm by seeming to go googy-eyed over a rap-star legal opponent."

At this point, I think it's fair to say this release has not had the intended effect, unless you are of the school of thought that any publicity is good publicity.

As I discussed here, law firms need to be very careful when issuing any kind of press release. The key idea is that it needs to always be about the client and the case. After reading the whole news release, I think that is what they were going for. The error was in the execution. I'm not a big fan of pre-trial press releases. Win the case. Then issue a press release. But if you do one of these pre-trial, its not a bad idea to make it about your client, rather than how famous the guy you are suing is.

When a law firm's news release results in the need to deny trying "to draw cheap attention to the firm," maybe it is better to refrain from commenting until a favorable result is achieved.

On the other hand, this news release seems to have also resulted in much more favorable treatment from the Maryland Daily Record. There, Rachel Pryzgoda turns in a pretty even-handed news item about the case with quotes from counsel for both sides, without making fun of either. I guess no two reporters are alike.

Hot of the presses is a new "study" on "Tort Liability Costs for Small Business" from the U.S. Chamber of Commerce's tort reform propaganda ministry, the dubiously named "Institute for Legal Reform."

I found this through the efforts of Walter Olson at Overlawyered. I'm ambivalent about reading, and linking to, Walter's site. It's not that his site is no good. In fact, just the opposite. The site is outstanding, and is a fantastic resource for news about the legal system. Its just that Overlawyered is a wholly owned subsidiary of The Man, Inc. And you know how I feel about The Man. Nonetheless, I will continue giving credit where it is due.

The report itself is more of what I have come to expect from this source. It wears the sheep's clothing of objectivity, but an examination of the sources and methods it uses reveals the wolf beneath. Consider this:

"In a separate survey of small business executives in Maryland, 91% indicated that lawsuits filed against corporations are hurting Maryland’s business climate. Nearly six in 10 respondents to that survey said they have increased their costs, reduced services, or changed products they offer. Fourteen percent said they even considered closing their business as a result of a lawsuit."

The source? A survey commissioned by Maryland Citizens Against Lawsuit Abuse and the National Federation of Independent Businesses. Seriously? That is as credible as citing a survey of cows to support the conclusion that steak is a threat. A biased report from the U.S. Chamber trying to appear objective by citing "independent" sources like a poll by MDCALA. Luckily for the Chamber, in an era defined by the 30-second sound bite most consumers will never read the footnotes or ask if the sources used are credible.

I haven't gotten through the whole "report" yet. I am sure I will have more comments.

I try to be pretty upfront about the fact that I obviously have my own biases that I bring to the table on these isssues. Otherwise, nothing I say about it could be taken credibly. That is a big part of the problem I have with "studies" like this. There is never any acknowledgment of the inherent bias presented by the source.

So if you haven't been following me closely, I am not surprised that a report sponsored by the largest business group in the United States concludes that lawsuits against businesses are bad. Considering the source, no other conclusion was possible.

I am slowly getting back into my daily routine after concluding a long trial in the Circuit Court for Baltimore City.

Regular readers (assuming there are some) know that I usually provide a summary of my cases that go to trial, but I have to sit this one out. In lieu of my usual post-game wrapup, I offer the following: "The matter resolved in a manner mutually agreeable to the parties, beyond which I have no comment."

Sorry, curious readers. Maybe next time.

But that's OK. On to the next case. And I have some interesting things cooking: a trucking accident that caused a brain injury, a retained foreign body medical negligence case, and an appeal involving the scope of a trial court's authority to confirm an arbitration award, among others. So I won't run out of cool stuff to do.

As a bonus, here is a step into Bizzarro-world. In Shady Grove Orthopedic Assoc. v. Allstate, Justice Scalia writes an opinion in favor of a class of plaintiffs, allowing a class action to proceed in federal court despite a state law that arguably would bar the action. Scalia? Plaintiffs? Wierd, huh? Really, I think this has more to do with the scope of Congress' rules enabling statute and respecting precedent than anything else. But nonetheless, Scalia gives one to the good guys. HT to SCOTUSblog.

Even more bizarre is the makeup of the majority: Scalia, Roberts, Stevens, Thomas and Sotomayor(?) Strange bedfellows indeed.

By way of full disclosure, readers should be aware that I have a man-crush on U.S. Rep. Bruce Braley.

Here's the deal. Braley is a former president of the Iowa Association for Justice, and despite that, won election to Congress. I am also an evil, greedy trial lawyer, and I happen to sit on the board of the Maryland Association for Justice. We recently held our annual Installation Gala recognizing our immediate past president Kevin Goldberg and honoring our new president, Robert Zarbin. Congressman Braley was our keynote speaker.

As part of Braley's talk, he played to us this clip of bad people shouting "trial lawyer" and "ambulance chaser" at him when he spoke on the House floor about patient rights during debate on the healthcare bill:

It's funny how things change. Since the bad guys shouted good old Bruce down, there was a little oil well explosion down in the Gulf of Mexico. People seem to like trial lawyers a lot more when the stuff that "can't happen to them," you know, happens to them. Check out this video (HT to PopTort) of Braley ripping into a Transocean executive because his company coerced traumatized workers from Deepwater Horizon to sign affidavits the day after the accident saying they weren't injured and didn't witness anything. Nobody's shouting him down now, are they?

I wish I lived in Iowa, just so I could vote for Bruce Braley.

Medicare liens are a topic of concern for most competent personal injury lawyers. It looks like Medicare is set to begin enforcing a federal law requiring reporting on injury claims made by individuals receiving Medicare.

The key thing about this law for injury lawyers is that if you fail to protect Medicare's interest, Medicare can go after anyone in the process to recover the payments made: the Medicare recipient, their personal injury lawyer, the defendant, the defense lawyer, or the the defendant's liability insurer. And lets face it- we all know that the client and the defendant won't have the money by the time Medicare comes looking. The feds are good at protecting themselves, and here they are doing it by putting a target on lawyers and insurers, which should not be a big problem as long as we are doing our jobs the right way.

Our practice at Miller & Zois is to discern early on in the client intake process whether the client is a Medicare recipient (or Medicaid,or state Medical Assistance). This lets us contact Medicare to put it on notice of the injury claim, and to request an itemization of the payments made by Medicare and a statement of Medicare's claimed interest.

Most of this ultimately operates for the protection of the client. First, the billing for the treatment is at the lower, Medicare rate. Once we have Medicare's itemization, we can make sure that the treatment listed is actually related to the case. It is not uncommon for a client who is in a car wreck and then suffers an unrelated injury a short time later, to have treatment for the second injury show up on a Medicare lien if the CPT codes for the treatment are similar. We also then have the opportunity to negotiate with Medicare to compromise the lien. Plus, if you don't do this stuff, not only is the client looking at Medicare coming after them to get the money back, they may find themselves with no coverage, or their Social Security benefits could be docked to recover the payment.

As part of serving on the board of the Maryland Association for Justice, I plan and speak at a fair amount of CLE seminars. These sorts of lien issues are always a concern because of the broad reach of Medicare's right to repayment. They are also a hot topic on our email listserve. I recommend that all lawyers do what they need to educate themselves on this issue, so they know the proper steps to take to protect their clients' interest and avoid committing malpractice. It looks like Maryland is heading towards implementing a mandatory CLE requirement, which should help raise awareness in this area.

Peter King is one of my favorite sportswriters. His Monday Morning Quarterback column for Sports Illustrated has a regular section called "Ten Things I Think I Think." He is an intelligent guy and a better writer than me, so instead of coming up with an idea of my own I stole his. So here are some things I think I think (but I might be wrong):

Walter Olson points out that the $75 million liability cap in the Oil Pollution Act of 1990 does not override state law remedies that may apply to the BP oil spill. His point is that the $75 million cap in the federal law may not be the upper limit of BP's actual liability, depending on the amounts recoverable under state law. Yeah, but: lots of states have damages caps that apply to common law tort claims arising under state law. I do not know if Louisiana, Missisippi, Alabama and Florida have caps that would apply, but I think it's an important piece of information to know if you are analyzing whether the damages cap in the federal law needs to be changed.

Many lawyers in Maryland (and elsewhere, presumably) beleive that to be admissible, expert opinion evidence needs to be accompanied by some sort of magic words like "within a reasonable degree of medical certainty." First, I think that is not the law. I think it is sufficient if it is clear that the standard is "more likely than not" for an expert in whatever field is applicable. And I think if the law is that some magic words are required, that is a stupid requirement that should be changed. It is clunky, cumbersome, overly technical, and a perfect example of lawyerspeak that clues the jury in to ignore whatever follows it. The court has just accepted the witness as an expert. It should be clear to everyone that his opinion testimony is offered as that of an expert in the field. Why do we go out of our way to make our legal proeedings as cumbersome, time-consuming and annoying for the jury as possible?

I think Bret Michaels is getting a lot of valuable exposure for having not died. I also think it is painfully obvious that the bandanna is because he is bald. One more reason to hit the Maryland State Fair.

I think the primary function of a "Motion for Reconsideration" is to elevate legal billings. In my experience, when trial judges are presented with an additional and more detailed recitation of facts that have already been presented to them, they rarely decide they were wrong the first time. I am sure these motions have some value in making a record for an appeal, but I can't recall ever having seen a trial judge grant one.

I think that when faced with a party or witness whose first language is not English, but has some limited proficiency, more lawyers should consider using an interpreter anyway and letting the witness testify in their native language. Interpreters have a cost and add more time to a deposition, but the transcript will be a lot more accurate. Particularly if the witness stutters and/or is a Seinfeldian "low talker."

You may remember me blogging about a defense verdict in a tough four-day trial recently. I think is was very nice of my client to send me a thoughtful personal letter saying what a great job I did, even though we didn't win. On balance, though, I would rather win and not get a nice letter.

I arrived at the office this morning only to find that we had no power. So then I walked the ten flights up to our office suite. Once I could breathe without feeling like I was going to throw up, I made some notes that became this blog post.

It has been awhile since my last post, so I will bring you up to date.

The week before last I was out with Laura Zois mediating a serious injury product liability case. Our client was crushed by an unsafe product, leading to bilateral skull fractures and emergency brain surgery. Our efforts at settlement did not work out, so we are getting ready for a long trial that should start in six weeks. It is a lot of work, but that is what we do here, and it is the fun part!

Then last week I had a four day trial in an auto accident case in the Circuit Court for Charles County. It involved a low property damage collision, where my client’s doctors concluded that she had developed a chronic pain syndrome secondary to a minor cervical spinal cord contusion. This is a tricky case to try, because juries typically put a lot of stock in vehicle photos, and because the injury sustained was of a type that often does not appear on diagnostic studies like MRI’s, and did not in this case. Ultimately, this was a tough case that resulted in an unfortunate defense verdict. The jury just was not persuaded that the car accident caused the client’s injuries.

You cannot imagine how much I just hated writing that. Perhaps like most trial lawyers, I am very competitive. I can’t help but believe that if I am smart enough and work hard enough, I can control the uncontrollable. I think I am supposed to win every time. But nobody wins every time. OK, nobody but Gerry Spence wins every time. Our saying around the office is that if you never lose, you aren’t trying enough cases. That is another way of saying we try to be aggressive- just because the odds are against something is no reason not to try. Plus, from a client’s perspective, a personal injury lawyer who is afraid to fight is of very little value.

As I write, I am looking at a print of Muhammad Ali standing over Sonny Liston after knocking him out to defend the championship Ali won in his first fight with Liston, a fight Ali was picked to lose. If you never fight, you never win.

Then I spent Friday and Saturday with all of the other lawyers in our office attending a trial skills seminar taught by jury consultant David Ball and noted trial lawyer Don Keenan. I learned trial techniques based on groundbreaking new research, and left excited and ready for the next fight. A great way to stay motivated and to share ideas with a group of talented lawyers, including the five M&Z lawyers I work with every day.

So that brings you current on what I have been up to the last two weeks. Did you miss me? I knew you did.

I am working on a few cases involving corporate defendants of various sizes. One of the most effective discovery devices around for these kinds of cases is the corporate representative deposition.

Md. Rule 2-412 allows a corporation or other organization to be deposed through a designated representative. The way it works, is that the party seeking the deposition sends a notice, where they "describe with reasonable particularity the matters on which examination is requested." Then the corporation must designate one or more people who will be prepared to testify regarding those matters "known or reasonably available" to the corporation.

This is a powerful discovery tool because the answers given by the corporation's deignated representative are binding. The entity is under an obligation to have the designee review the areas upon which the examination is requested, and be prepared to give answers that will be binding. There is law saying that once a designee testifies, the corporation may not later present affidavits or other evidence in contradiction to the answers given by the designee. Under some circumstances, even an "I don't know" can be binding on the corporation when said by its designee.

There is a great resource for preparing for these kinds of depositions produced by the National Institute for Trial Advocacy called The Effective Deposition. I started out trying cases as the only lawyer in charge of the civil docket for a small Baltimore firm concentrating in serious criminal defense. I worked with two outstanding criminal lawyers who were a great resource on trying cases generally, but not so much on civil cases. This means that to a large degree, I am self-taught, and early on The Effective Deposition was the main resource I used for preparing for depositions of all types. My subsequent experience has taught me that the advice in the book is right on the money.

I didn't include cites, but all of the statements I made above are supported by either Maryland case law, or federal law interpreting the corresponding federal rule. Because the Maryland Rules are largely patterned on the federal rules, in the absence of controlling authority, Maryland courts look to interpretation of the federal rule for guidance.

This is true for all of the Maryland Rules, not just those pertaining to depositions. This is a very useful rule to know. If you deal regularly with procedural issues in discovery, you know that there are often not a lot of Maryland appellate cases on point. First, discovery issues are not appealable until the end of the case, so if you get a verdict it may never be appealed. Second, by then the economic realities of the case may not allow for an appeal. Finally, even if there is an appellate issue and there is the will and economic ability to appeal, the standard of review that will be applied is the very deferential "abuse of discretion" standard.

However, there is a very large body of law interpreting the federal rules, because federal trial court decisions are often reported. These may be found either in F.Supp., or in the Federal Rules Decisions. So when you have a thorny legal issue involving Maryland pretrial procedure, don't forget that federal law may be very valuable in providing guidance. This is particularly true when you can locate and rely upon opinions authored by well-known local federal judges. I have found that Maryland trial court judges will place great weight on evidence and discovery opinions decided by Hon. Paul W. Grimm, for example.

So once you are prepared on the strategic and factual considerations involved, and know where to look for the law if you have a problem, the corporate representative deposition is a great way to learn facts and get binding answers in cases involving corporate defendants. Have fun!

Here is a great blog post by renowned trial lawyer Paul Luvera where he talks about representing victims of an oil refinery explosion. Paul is responding to people who were critical of the victims' families retaining counsel.

His main point is that when dealing with a large corporation, there is only one language the corporation understands- money. The only reason a corporation exists is the generation of a profit for the shareholders. All of its corporate decisions are governed by that overriding principle. Left entirely on its own, a corporation will generally do what is in its economic self-interest, whether that entails reasonable actions to promote safety or not.

When unsafe actions start to cost money (either through suits for money damages, regulatory fines, or bad publicity) is when corporate behavior changes. If you have ever seen the movie Fight Club, there is a scene where the main character describes his job as a "recall coordinator" for an automobile manufacturer. He says his job is to apply "the formula." This is how he describes it:

"A new car built by my company leaves somewhere traveling at 60 mph. The rear differential locks up. The car crashes and burns with everyone trapped inside. Now, should we initiate a recall? Take the number of vehicles in the field, A, multiply by the probable rate of failure, B, multiply by the average out-of-court settlement, C. A times B times C equals X. If X is less than the cost of a recall, we don't do one."

That is essentially the corporate decision making process. Where a decision making process is governed by money, the only way to change that process is with money. Here is what Paul says about it, and I agree with him:

"Those who complain the lawyers and the families are only in it for the money and that no amount of money can make up for the harm are really suggesting we let the corporation go without paying what they owe. A lawsuit for damages is the only way civilized societies ensure that justice prevails in a tragedy like this one."

We have a system in this country where we allow free enterprise and promote the generation of profit, sometimes to the detriment of the little guy. We also have a system where wrongdoers may be held accountable for the consequences of their actions.

It brings me back to one of my favorite quotes about the justice system. It is one of the truest comments I have ever heard:

"The system is there to bury you. Why can't it be there to save you?" -- Ice Cube.

I would rather represent David than Goliath, rather be Robin Hood than Sheriff John, and rather root for App. State than Michigan. I don't want to be one more lawyer piling on top of someone already buried under the weight of the system. What trial lawyers do is stick up for the little guy against The Man. At least, that's how I see my job. Maybe you disagree. I don't care.

Last night, the Maryland General Assembly passed a bill to put a contitutional amendment on the ballot in November raising the jury prayer amount in civil cases. Currently, in any civil case filed seeking more than $10,000.00, the defendant has a right to a jury trial. This provision does not have an escalator allowing it to rise along with the cost of medical care and wages lost.

This bill will permit a Constitutional amendment raising that amount to $15,000.00. Because this law relates to a constitutional amendment, it needed a 2/3 majority to pass. It will now appear on the ballot in November's general election, where it will hopefully be approved by the voters.

This is an important issue for car accident lawyers in Maryland. As an example, consider a typical soft-tissue injury case. There is an emergency room visit with X-rays and a bill from the ER physician. That's about $800, conservatively. The client needs 8 weeks of follow-up physical therapy. That's about $4600. Then include two weeks missed from work, at about $1400 total. That's $6800 in out of pocket losses. If the client needs an MRI to rule out a structural problem, you are looking at $8,000 in out of pocket damages for a relatively uncomplicated sprain/strain case. Filing for $10,000 does not really provide the potential to make a recovery to adequately compensate that client. But filing for more means that the defendant may pray a jury trial and delay the case for up to a year waiting for a trial date in Circuit Court, and requiring expensive, time consuming discovery. The plaintiff may need to miss even more time from work to appear at a deposition, a court-ordered medical exam, and a settlement conference.

If the voters approve the proposed change, that case can be filed in District Court for $15,000.00 and it will stay there. This is a good change. It will keep less serious cases from clogging the Circuit Courts, and will relieve our jurors of the burden of appearing to hear these cases. A jury demand is also used tactically by defense attorneys and auto insurers in cases in this value range.

In a county with a conservative jury pool, any case over 10k will almost always result in a jury demand. This means expensive discovery, delay, and the prospect of trying the case before a panel of jurors who may very well believe their time is being wasted on a case of that size. These cases can also be more difficult to try before a jury because of the nature of the injury claimed. A muscle strain can be very painful, and can take a few months to resolve. It also does not show up on an X-ray or MRI. Even if you achieve a satisfactory result for the client, you have taken a year to do what should have been done in six months. Of course, in counties where the jury pool is perceived as being more plaintiff-friendly, jury demands are much less common.

Hopefully Maryland's voters will make the right choice. In the context of a modern economy, $15,000 is not the huge sum it once was. The change will allow the District Court to fulfill its purpose of resolving less serious cases in a fair and expedient manner with as little cost as possible.

Look for more on this issue as the November election approaches.

Today I saw (via Overlawyered) a blog post by WhiteCoat where WC is critical of a poorly framed law firm press release.

He criticizes a press prelease issued by a medical malpractice law firm. It reads: "Prominent Beverly Hills Law Firm Awarded $16.5 Million Medical Malpractice Jury Verdict." The basis for WC's criticism is that it does not mention the client, thereby making it appear as if the award was made directly to the firm.

I don't think he believes anyone would be misled. I think he is really pointing out that it smacks of arrogance to leave the client totally out of the equation. As he says, "Screw the client."

I don't really see any functional difference between that press release and one that says something like: "Renowned Neurosurgeon Ben Carson Successfully Separates Conjoined Twins."

But I agree that it is a bad press release, and and for the same reason as WC: It's focused on the lawyers, not the client. As personal injury lawyers, we must constantly battle public perceptions that we are all greedy and arrogant and that our clients are all liars and fakers who are seeking "lottery justice."

What this release should have said is something like: "Jury Awards 41 Year Old Man $16.5 Million Compensation For Medical Negligence Causing Permanent Paralysis." It is more accurate, puts the award in context, and most importantly, shows that the money was given to compensate an innocent victim for a horrific injury that happened because somebody did something wrong.

At Miller & Zois, we keep this in mind whenever whenever one of our cases gets media attention. It is always about the client. Because the case itself is always about the client.

Every media inquiry is a chance to show that big awards or groundbreaking precedents happen because deserving victims secured the justice the law demands, with our assistance. Making it about the law firm or particular lawyer plays into the hands of the enemy, namely those who foster the perception that out-of-control juries give away huge sums of other peoples' money for every bump, bruise, or hangnail. Anybody who has ever stood before a jury in an injury case knows this isn't true. It is stupid and counterproductive to act in a way that fosters that perception.

Is this one release a huge deal? No. Somebody's PR people did a poor job. But cumulatively, this stuff matters. Its a subtle difference of perception that all personal injury lawyers and law firms should keep in mind in terms of media relations.

Today the Court of Appeals of Maryland issued an opinion addressing the extent to which expert witnesses who are retained solely for litigation may be forced to produce documentation of the amounts they earn providing expert witness services.

There are actually two cases, which were consolidated on appeal. The first is Falik v. Hornage, No. 60; the second is Falik v. Holthus, No. 90. They are both Miller & Zois cases. Rod Gaston was trial counsel in Hornage; I am trial counsel in Holthus, and I was privileged to brief and argue both cases in the appellate court.

In each of these unrelated cases, the defense retained the same neurosurgeon as an expert witness. Insurance companies and defense attorneys tend to use the same doctors as expert witnesses over and over. Because these witnesses are being paid, they may have an economic interest in continuing to serve as an expert witness, or they may have economic ties to particular lawyers and insurance companies. Obviously, an economic interest in the litigation may lead the witness to have a bias in favor of their employer, whether conscious or not.

Economic bias of this type is fair game for cross-examination in discovery and at trial. But where the problem comes in is in finding out whether the witness has told the truth. I have had doctors say they do not know what they make in a year for serving as an expert witness, or that they do not know how many times they have been retained by a particular lawyer, law firm, or insurance carrier. Or they will give an answer, but it sounds suspiciously low. I even had one doctor tell me that he did not know what he was being paid in the case he was testifying in, and that he could not tell me who would know.

Continue reading "Appellate Opinion On Expert Witness Financial Bias" »

There is a man who lives in York, PA named Albert Snyder. His son was in the military, and was killed in the line of duty. When Mr. Snyder tried to bury his son in Baltimore County, MD, the funeral was picketed by members of the Westboro Baptist Church. They showed up with signs saying things like “God Hates Fags.” Apparently, they believe that U.S. military deaths are God’s revenge for our society’s tolerance of homosexuality. Mr. Snyder sued the Westboro Baptist Church and got an 11 million dollar verdict. This has been in the news recently because Mr. Snyder lost on appeal to the 4th Circuit, and was ordered to pay the church’s costs of about $16,000.

The same day, there was a $1.44 million dollar verdict in the Circuit Court for Baltimore County in a medical malpractice case. This was a death case. The defendant was an ER doctor who failed to diagnoses sepsis, leading to the death of the patient. Baltimore County is one of the most conservative jurisdictions in the state. Because of this, this verdict was also in the news.

Our local paper’s website allows comments, and I read the comments to both of these stories. The comments to the medmal story pillory the plaintiffs and their lawyers. The plaintiffs are called greedy, their case was called frivolous, and one commenter said it wasn’t fair because $1.44 million dollars won’t bring the dead man back. This is a case where a man died.

The comments to the Snyder story support him fully, and are appalled that he now has to pay costs. There is no mention of the amount of the verdict, and nobody called him greedy, or his case frivolous, even though he sued essentially because his feelings were hurt at a very emotionally sensitive time.

Why do people think one of these cases is frivolous and not the other? Death case= frivolous. Hurt feelings case= not frivolous. I guess frivolity is in the eye of the beholder.

Don’t misunderstand me. I don’t think either of these cases is frivolous. But there is an incredible amount of hypocrisy in calling one case frivolous but not the other, simply because one case is wrapped in the flag.

Maybe Georgia hates plaintiffs less than I thought.

They have a "tort reform" law that limits non-economic damages in medical malpractice cases to an unconscionable $350,000. They also have a state constitution that says that "the right to a trial by jury shall remain inviolate." The Georgia Supreme Court recently held the cap to be unconstitutional, stating that "[t]he very existence of the caps, in any amount, is violative of the right to trial by jury." It is nice to see an appellate court take its role seriously in ensuring that legislative mandates conform to constitutional requirements.

But I don't practice law in Georgia. I am stuck here in Maryland, wishing that the Court of Appeals of Maryland had shown the same courage as the Georgia Supreme Court. But alas, the Court of Appeals of Maryland considered the exact same constitutional argument, and rejected it in Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1990). Our court defied logic, and held that as long as the jury determines the plaintiff's damages, the right to a jury trial is not impaired when a statute arbitrarily reduces the jury's award to a predetermined amount having nothing to do with the damages in the case.

I swear, I am not making this up. This is what the Court of Appeals of Maryland said in Edmonds:

"Section 11-108 fully preserves the right of having a jury resolve the factual issues with regard to the amount of noneconomic damages. Neither the $350,000 limit on recovery nor the provision that the jury shall not be informed of the limit, interferes with the jury's proper role and its ability to resolve the factual issues which are pertinent to the cause of action."

Basically, as long as the jury determines the damages, the Court of Appeals says that it is irrelevant that the jury's verdict will be arbitrarily ignored, and it is irrelevant that they will not be told this is going to happen.

It isn't just me thinking the Maryland ruling is illogical and legally unsupported. The Georgia Supreme Court considered the Court of Appeals' holding in Edmonds and called it "unpersuasive reasoning."

But wait! The Court of Appeals of Maryland has a chance to fix its mistake. On April 2, 2010 the court will hear argument in DRD Pool Service, Inc. v. Freed. That case has a constitutional challenge to the non-economic damages cap in non-medical malpractice cases. Hopefully, the court will get it right this time and do away with a law that does a terrible injustice to the most seriously injured Marylanders.

Our system of justice places an immense amount of trust in juries. Juries decide whether people live or die, go to prison or remain free. Why do we no longer trust them to determine damages? Presumably, the right to a jury trial was pretty important since they put it in the very document that provides for our system of government. Hopefully, our courts will restore the will of the jury to its rightful place in our civil justice system.

But I'm not holding my breath.

HB 825 is a bill being considered by the Maryland House of Representatives this morning. What the bill does is raise Maryland’s mandatory minimum auto insurance requirements. As I write this, I am listening to the debate on the House floor.

Currently, Maryland requires drivers to purchase insurance coverage with limits of at least $20,000 per person and $40,000 per incident. This has been the requirement since 1972, when the mandatory insurance law was passed. That amount has never been changed.

HB 825 would raise the minimum limits to $30,000 per person or $60,000 per incident.
This is a change that is well overdue.

The bill has a positive fiscal note, which includes sample premium increases for drivers insured by the Maryland Automobile Insurance Fund (MAIF). These are the only numbers available, because private insurers are not required to provide this information, and refuse to do it voluntarily. In fact, I was at the committee hearing on this bill, and the insurer’s lobbyists were asked this question, and responded that they “did not have” that information.

MAIF is the state’s insurer of last resort, required by statute to cover drivers who have been turned down by at least three commercial insurers. These are Maryland’s riskiest drivers to cover, who consequently pay the most to purchase car insurance. MAIF drivers who face the biggest increase in premium would have to pay about 9.3% more, about $14.50 per month.

So what we have is a 37 year-old insurance requirement that has never been raised. The bill will cost the state nothing, and will result in only a modest premium increase even for the state’s worst drivers.

Consider what a dollar bought in 1972 (thanks to Jim MacAlister, Esq.):

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Here is an article about a recent opinion of the Georgia Supreme Court (that state's equivalent to the Court of Appeals of Maryland) that uphold "tort reform" laws passed by the Georgia legislature. These laws were passed in 2005 as part of a package of "tort reform" laws.

The court upheld a draconian change in the standard of care for victims of medical negligence where the negligent doctor was providing care in an emergency room. In Maryland, doctors in any setting are held to a negligence standard. If the doctor failed to act as a reasonable health care provider would have under the circumstances, that is negligence.

Georgia has a different standard of care as a result of these 2005 laws. To recover for malpractice against a Georgia ER doctor, a plaintiff must prove "gross negligence" by "clear and convincing" evidence. I think Georgia is the only state in the country with a law like this. This changed the pre-existing law in two crucial ways.

First, it raises the standard of proof from a "more likely than not" standard. Essentially, this is the difference between 51% likely and 75% likely. Second, and most awfully, it raises the standard that must be violated to "gross negligence", which means a failure to exercise even a slight degree of care.

I am not a Georgia malpractice lawyer, but the way I understand this is as follows: If the doctor cuts off the wrong leg because he is drunk, there is gross negligence. If he cuts off the wrong leg because he simply misread the chart, there is not. I imagine this is small comfort for the guy who lost the wrong leg. But hey, it's all good- this law has reduced the number of medical malpractice lawsuits, and (thank god) has reduced doctor's malpractice premiums. Guess why? Because it basically means that it will always be impossible to prove the doctor breached the standard of care.

The Georgia court determined that the legislature's goal of making physicians' malpractice insurance more affordable was a "legitimate legislative purpose." This is just astonishing. I have a hard time conceiving a more unfair rule of law. Doing what is cheaper is not always the same thing as doing what is just.

This rule allows a Georgia ER doctor to to walk up to a family and say something like "I am really sorry. I messed up because I just wasn't paying attention. I am a little tired from staying up late to watch the playoffs. But I did my best, and I am sorry your mother is dead." Under Georgia's standard, that doctor is probably not liable for malpractice. If you can't tell what is wrong with that, you have my pity.

I love doctors. I have one myself. I am a huge fan of the ER docs and on-call cardiologists who helped my Dad when he had a heart attack. It is important to have these kinds of doctors available. But that should not be at the price of immunizing whatever they do as long as they try hard and don't intentionally hurt you.

Last week I spent three days trying a car accident case in the Circuit Court for Charles County. There were two defendants- the driver who caused the accident, and my client's insurance carrier. There was a direct suit against the insurance carrier because the defendant driver had the minimum insurance permitted in Maryland (20k per person, 40k per incident), and we alleged that the plaintiff's damages exceeded the defendant's policy limit. So we brought in my client's insurance company as a defendant, because there were underinsured motorists' benefits available to cover the damages that exceeded the defendant driver's policy.

When you are litigating against the tortfeasor and the UM/UIM carrier, there are two legal issues you should expect to address before the trial begins.

First, it is a near-certainty that the insurance company will make a motion to allow it to try the case without being identified to the jury. This makes sense from their perspective, because they do not want the jury to know that any damages will be paid by an insurance company, or that the Plaintiff was forced to sue his own insurer.

The only problem is that Maryland law on this issue is exactly the opposite. There is a 2004 case from the Court of Special Appeals of Maryland that is directly on point. It is called King v. State Farm. When the insurance company is a party to the lawsuit, it may not remain anonymous. The insurance company may be identified to the jury, and the jury may be told why the carrier is a party to the case. I keep a copy of this case in my desk drawer, and bring it to court whenever I am trying a UM/UIM case. Normally, once this controlling authority is presented to the trial court, the insurance compnay's motion to stay anonymous is quickly denied.

The second legal issue is that when it comes time for jury selection, the two defendants will ask the court to award them each separate peremptory challenges. In a civil jury trial in Maryland, generally each side gets 4 peremptory challenges, plus one for the alternate juror. What typically happens is that the tortfeasor and the UM/UIM carrier ask to be awarded separate sets of peremptory challenges. This would be bad for the Plaintiff, since it would give the defendants twice as much control over the makeup of the jury.

All Maryland personal injury lawyers who handle these kinds of cases need to know about Md. Rule 2-512(e). Under the rule, joint defendants are considered to be a single party for the purposes of awarding peremptory challenges unless the trial judge determines that there are "adverse or hostile interests" between the defendants AND that the nature of those interests justifies granting them separate peremptory challenges. In a typical UM/UIM case, separate strikes should not be granted because the two defendants have identical interests with respect to the plaintiff- defending on liability and damages. Even where tehre is a cross-claim between the defendants, normally their interest against the plaintiff will be identical, and therefore they should share a single set of challenges. See Kloetzi v. Kalmbacher, 65 Md.App. 595, 501 A.2d 499 (1985).

So before you head to court to try a UM/UIM case, always be ready to address these two issues. If you try a lot of car accident cases, I recommend doing what I do. I keep the authority on these two issues in a folder in my file cabinet, and bring it with me for all of my UM/UIM trials. Since the law is generally favorable to Plaintiffs on these points, it is nearly malpractice to be unprepared to present it to the court.

I have been away from the blog for a few days because I have been preparing for oral argument in the Court of Appeals of Maryland. See, when I ignore you readers it is only because I have been doing big, important lawyer-type things.

Yesterday I argued two consolidated appeals where the issue is the scope of discovery that lawyers can obtain into the financial bias of retained expert witnesses. Nearly every Maryland personal injury case involves some type of expert testimony.

Generally this falls into two categories. First are treating doctors who are drawn into cases simply because they happened to treat a patient who was injured in a way that later became the subject of litigation. These are not the people I am concerned with. Second, are experts who are only involved in the case because they are sought out by one side or the other to give opinion testimony for money, specifically for the purpose of litigation. The way this mostly comes up in what I do, is the defense side on an auto or trucking accident case hires a doctor to examine the plaintiff and to testify to one of the following: 1) There is nothing wrong with them; 2) There is something wrong with them, but it is not as bad as they say it is; or 3) There is something wrong with them, and it is as bad as they say it is, but it was caused by anything other than the accident.

What I see is the same group of doctors being used repeatedly by certain defense attorneys, law firms, and insurance companies. Many of these doctors are very well compensated for giving testimony. I have encountered doctors who have billed as much as a million dollars in one year for doing this type of work.

We want to put this information before the jury to show that the witness is biased in favor of those who are writing his very large paycheck. Often, the witness will not tell us how much they are paid for working as a professional witness, or will greatly under-report their earnings. So we subpoena financial documentation to see if we are being given a straight answer.

The Court of Appeals is expected to address the scope of the documentation we are able to obtain, and the means for obtaining it. The opinion could have broad implications for all Maryland lawyers handling injury cases. I think the oral argument went pretty well. If you are interested and have the free time, you can see the argument here. They are cases No. 60 and 90.

I am not sure how long it will take the court to issue an opinion, but I expect to wait at least a few months. I will post the opinion when it comes out. I am hoping the court will come down on the side of our juries having accurate information about the self-interest of the witnesses presented to them.

I wonder if the lawyer representing Terrell Suggs’ girlfriend has much experience in plaintiffs’ tort litigation. Here’s why. First- filing a 70 million dollar lawsuit before the final protective order hearing is a bad idea simply because it offers a great financial motive cross-examination to the other side. Second- it hurts your settlement leverage, because for famous people silence is worth something. Third- running to the courthouse to file a suit for money damages isn’t going to look good to your mostly conservative, Ravens fan Baltimore County jury when the battery case goes to trial. Maybe the amount of the ad damnum won’t come into evidence, but the timeline sure will. Fourth- for a case arising after 10/01/09, your non-economic damages are capped at $725,000. So I guess you have $19,250,000 in economic damages, right? That must have been a really, really bad broken nose. I guess filing for such a large amount, so quickly, did accomplish one of the goals- it got the lawyer’s name in the paper, and he smartly declined comment. I really think the primary goals- getting a determination on custody and the protective order- could best be accomplished without all of the sensationalism and media attention caused by the 70 million dollar lawsuit. After all, there are three more years to file the tort claim.

If this woman had come to me for legal representation, the first thing I would have done would be to find the most expert family lawyer I could to handle the custody and protective order case. I have handled protective order hearings before, but there are people who do that for a living, more expertly than I could. I wonder if the family lawyer representing her will associate with experienced co-counsel for the tort case? I’m curious to see how this turns out, but based on what I have seen so far, I hope Ms. Williams has some pretty compelling evidence or she could have a tough fight on her hands. Too bad there's no grounds to transfer venue to Pittsburgh.

WhiteCoat advocates a loser-pays system in medical malpractice cases. Sure. I’ll go along with that, if it comes with automatic liability for the physician if the patient is not cured. After all, it’s fair for he who does not succeed to pay, right? Why don’t we all agree that doctors know more about medicine than lawyers, and lawyers know more about the law than doctors?

Paul Luvera has some tips for cross-examining Defense Medical Exam doctors. Paul calls this a basic outline, which it is. Miller & Zois lawyers use a much more detailed approach, but Paul provides an outstanding basic foundation for the cross.

I had never heard of Moe Levine until I got an ad for a book about him from the American Association for Justice. Then I found a closing he gave in a case about a young woman who broke her arm in a car accident. This is an outstanding effort in a case all of us have tried at least once. He truly does a wonderful job of personalizing his client’s non-economic damages in a case where there is a real, but not catastrophic, injury. Thanks to Howard Nations for providing this wonderful resource.

The way people think and speak about time is a recurring issue in personal injury lawsuits, particularly those involving auto and truck accidents. All drivers are constantly required to judge speed and distance simply to get where they are going. This leads to the perception that drivers and witnesses are able to accurately estimate time, speed and distance. However, scientific studies by professional accident reconstructionists confirm that eyewitnesses are most often wrong when they try to estimate these factors.

Often, people speak in a very non-literal way about time. A minute is seen as a very short period of time by most people. A minute is about 1/1400th of a day. When a witness says something took “about a minute” they very rarely mean that it took 60 seconds. More frequently, they mean “not very long.”

This can be extremely important in intersection cases. It may arise in the context of how long the plaintiff or defendant had to see and react to oncoming traffic. Or where a vehicle was when a light changed, or how long it took for a vehicle to travel from point A to point B.

Witnesses never realize that when they are asked to estimate time, it is rarely simply because the questioner wants to know about how long something took. You see, time/speed/distance is really just a three-sided math problem. If you know any two elements, finding the third is a simple calculation.

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