Articles Posted in Legal News

The Maryland Court of Special Appeals turned back another injured victim under the archaic “Really, do we still have that in 2011?” doctrine of sovereign immunity.

The plaintiff alleged she suffered an ankle injury when she slipped and fell on a wet platform after exiting a train at the Cheverly Metro station in Prince George County. The defendant, the beloved Washington Metropolitan Area Transit Authority, made all the usual – and appropriate – defenses. You knew the platform was wet, didn’t you? You even saw a yellow warning cone that the platform was wet, right? No one appeared to have mopped the floor to make it wet, did they?

The plaintiff’s lawyers got creative and did some research. They found out that WMATA used a cleaning agent “Super Shine-All” to clean its train platforms. The coefficient of friction on the floor, the plaintiff argued, was that it should have surprised no one that the woman would fall. In a trial before Judge Maureen M. Lamasney, a Prince George’s County jury agreed and awarded damages (I’m not sure how much). Continue reading

The Washington Post reports that Montgomery County Judge Brian G. Kim resigned after reports of a road rage incident circulated.

Apparently, Judge Kim was accused of tailgating a woman – yes, it matters to me – because he was believing he’d been cut off. She reported to the police that Judge Kim was “zooming up beside me, yelling through the windows and gesturing.” She also said that the Honda reached about 70 mph and zoomed over to her lane, causing her to slam on her brakes to avoid a wreck.

I don’t know if it made a difference, but judges that make a lot of enemies on the bench have a much harder time making it through a minor scandal. Court Watch Montgomery was not really excited about Judge Kim after sitting in on six months of restraining-order hearings in Montgomery County.

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Awful story. Young and handsome 17-year-old boy is killed in a car accident. Inexplicably, the city morgue displays the child’s brain. Sure enough, the boy’s classmates go on a field trip to the morgue and see the boy’s brain floating in formaldehyde. How did they know it was his? The boy’s name was on it. (The story gets even worse.)

Seriously? The story sounds made up, right down to the part about the kids going on a field trip to the morgue. But no one disputes the facts. Incredible. I usually try to avoid “what a bunch of morons” type rhetoric on this blog. I’ll set that aside for this one. What a bunch of morons. The jury in this case agreed, awarding the family a million-dollar verdict.

Everyone at that morgue should be fired. No doubt. Still, we have to value the loss not of the boy but of the morgue’s negligence. The actual loss here is the boy’s death in the car accident, not what happened to some part of his body after the accident. The plaintiffs’ lawyer told the jury that the boy’s sister dropped out of school at age 14 because of devastating survivor’s guilt and relentless teasing by other students. Beyond tragic. But this is not what was at issue in this trial.

News and thoughts from this week:

• Baltimore moves closer to settling a claim brought by a man who was injured while doing sanitation work as his court-mandated community service.
• The Maryland Daily Record has a big Monday law story on a woman was suing her medical malpractice lawyer. I can’t speak to the merits of the case – who know if the allegations are true.=? The problem with these “someone filed a lawsuit against Joe Smith” stories is that everyone remembers the story of the lawsuit but no one will remember if he gets a defense verdict. I’m not saying these stories should run. But it is a minor tragedy if the trial comes out differently than the allegations alleged in the story.

I love when someone does a study confirming one of my pet theories. My theory: juror skepticism towards plaintiffs is fueled by unwarranted perceptions in the media as to whether jurors are reaching fair verdicts.

The Center for Justice & Democracy has published a study showing that the media distorts the public’s perception of how much juries award in personal injury and other civil cases. The study tracked the news over an 80-day period and found that jury verdicts reported on in the media are 192 times higher than the national average of damages awarded. The plaintiffs’ verdicts reported by the media in the study had a median jury award was $4.6 million, instead of the real national median jury award of $24,000 awarded to victorious plaintiffs.

The problem is easy to see. The public sees that every celebrity death ends in a wrongful death lawsuit. Every silly celebrity and pseudo-celebrity dispute also ends up as a lawsuit. Look at this crazy battle published on Deadspin today, involving Erin Andrews. You can find one every single day if you look. So, the public weighs the merits of these lawsuits, finding that more often than not they are unsustainable and, at worst, ridiculous. The take-home message? These suits indicate all lawsuits.

These same people then read, almost daily, media reports of some $25 million verdict here and some $50 million verdict there. These stories might mention in the last paragraph that there is a cap on noneconomic damages that cuts 90% of the award, or that the defendant did not even have a lawyer and there is no expectation the victim will ever see a dime of the verdict. Putting these things together, should we really be surprised that jurors come in with the rebuttable presumption that our clients are just looking for money and not justice? Continue reading

1. I read four personal injury-related appellate opinions published last week that I think are worth reading:

Thibodeaux v. Trahan: Like most personal injury lawyers, I have been hit with post-trial remitter motions from defense attorneys claiming that the jury’s verdict was unreasonably high. But no plaintiff’s lawyer is silly enough to file a post-trial motion for additur to raise the verdict because it will never work. I think federal law prohibits additur in federal court jury awards. Someone forgot to tell the Plaintiff’s lawyer in this rear-end accident bus case in Louisiana who appealed the trial court’s failure to award future pain and suffering. The appellate court changed not only the comparative negligence allocation but also increased the plaintiff’s damages, finding that the trial court failed to award enough damages.

Crazy, right? The facts were unique. This was a bench trial where the trial judge specifically found that the Plaintiff will need future surgery for her knee but did not award damages. Juries, I guess, get a pass on inconsistencies in their verdicts because it could result from compromise. But a trial judge deciding damages cannot form a compromise in her own mind and has to make an award consistent with the court’s findings. (Actually, I read this malpractice opinion that was decided last Thursday that makes a similar point.)

Louisiana law allows the appellate court to increase the award to the lowest amount reasonably within the trier of fact’s discretion. I don’t think Maryland law prohibits additur but there is no recorded case in Maryland where the trial court increased a damage award. I don’t know why, if we have remitter we should have additur under Goose v. Gander.

Osorio v. One World Technologies: The First Circuit affirmed a $ 1.5 million award in a product liability case in Massachusetts involving a defectively designed power saw that Plaintiff’s employer bought at Home Depot.

Plaintiff’s hand injury occurred on a construction site while operating a $179 Ryobi Model BTS15 benchtop table saw bought at Home Depot. While cutting a piece of wood, the Plaintiff’s left hand slipped and went into the saw’s blade.

Plaintiff’s attorney put up a witness at trial who invented a device that allows a table saw to sense when the blade comes into contact with the user’s body and stops the blade from spinning. This is very cool. But none of the major table saw manufacturers bought the invention.

Plaintiff’s theory why? Basically, an Oliver Stone-ian conspiracy theory that the manufacturers’ failure to incorporate this invention is because of a collective understanding that if any of them adopts the technology, then the others will face heightened liability exposure for not following suit.

Honestly, I’m not sure that entirely even makes sense and I really doubt that happened. The messenger is suspect, too: the guy who failed to sell table saw manufacturers on his technology. Continue reading

If you have the time, here are a few opinions of interest from the past few weeks for personal injury attorneys. If you don’t have the time, I have tried to provide a quick summary of the relevant facts and law.

• Rosenfeld v. Oceania Cruises: This is the classic slip and fall case that, honestly, my firm never would have taken. Plaintiff slipped and fell on a wet ceramic surface while walking to the bathroom at the dinner buffet on an Oceania Cruises cruise ship. Worse still, the Plaintiff did not really remember at deposition what type of floor she was on when she fell. Plaintiff brought in an expert from Austria (seriously, Austria) who testified that the tile Plaintiff’s lawyers claimed she slipped on had an inadequately low coefficient of friction. Really, just the worst imaginable case. Still, the 11th Circuit overturned the district court and found that this expert’s opinion should survive a Daubert challenge. So this case goes to the jury despite its Swiss cheese holes.
• Fritch v. University of Toledo College of Medicine: This is a brachial plexus medical malpractice case. Plaintiff’s expert testified that there were four possibilities what happened: (1) there was some traction on the nerves during surgery; (2) there was bleeding that no one saw (or couldn’t see) and they pulled traction on the nerve; (3) they stretched the nerve by stretching the arm; and/or (4) a scalene block injection caused the brachial plexus. Plaintiff’s doctor held up on direct examination, testifying that it was more likely than not that the injuries occurred because the surgeon negligently stretched the nerve in surgery from moving the arm or retracting on the retractor. The doctor’s experts testified as to the other possibilities of the harm that were possible but did not say that any of those likely were the cause. Plaintiff appealed to the Ohio Supreme Court, arguing that the doctor’s experts should not be able to testify about causes, only those that are more probable than not. The court rejected this claim. A Maryland appellate court would as well because there is no requirement that the defendant’s expert witness is required to state an alternative possible cause in terms of probability). Plaintiff also made a res ipsa claim which failed (although there are viable res ipsa malpractice claims in Maryland in very limited circumstances.)

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In what I would like to be a regular feature, I have provided a summary of opinions in the last week or so that may interest Maryland tort attorneys. Maryland opinions are important, but I think reading opinions from other jurisdictions also give a better understanding of the arguments and issues in areas of unsettled law in Maryland or wherever you are practicing. Half of the issues that come up in a case, during discovery or at trial, are issues of first impression. Reading case law formed elsewhere on personal injury issues helps lawyers not only understand the arguments they might want to bring, but it also helps spot issues in the first place.

With that pious, self-referential speech now complete, here are the opinions:

• Bad faith claim in Alaska fails

The first lawsuit has been filed over the Indiana State Fair stage collapse that killed six people last week. The suit claims that flimsy stage construction and failure to heed warnings of “severe thunderstorms” caused the injuries and deaths that ensued.

Ultimately, and I have written this before, I think it is hard to gather all the facts and figure out all the defendants in a case like this within a week. Besides getting some good publicity for the lawyers who file the case, I think there is rarely wisdom in racing to the courthouse steps after an accident.