Legal News

November 3, 2010

Maryland Jury Trial Threshold Increased

As expected, Maryland voters overwhelmingly rubber-stamp approved by a two-to-one margin a constitutional amendment to increase the damages threshold for civil jury lawsuits from $10,000 to $15,000. What does this mean? Any case pled in District Court in Maryland for more than $10,000 can be “bumped up” to a jury trial. This recent law increases the amount to $15,000.

There was no real debate on this issue. Pretty much everyone supported it, including small businesses, except for car insurance companies (you can find my overview of this issue here).

My theory on this, that I expressed back in April, is that most voters are like me: if there is a constitutional change on the ballot and you have not heard a debate about it, you figure there is an excellent reason for it. Why? Because given the absence of public debate that would make me more knowledgeable on the topic, I defer to the Maryland legislature and figure they put it on the ballot for a reason. Some people will vote against everything they don’t fully understand because they have a different world view. I suspect that most people who voted for or against the bill last night did so more because of how they view the big picture on these types of questions as opposed to the merits of the bill (which is why I made the rubber-stamping joke).

October 29, 2010

New CSA Opinion on Discovery

by Ronald V. Miller, Jr.

appellate court opinion Besides Kearney v. Berger, there was another interesting opinion that came down from Maryland’s appellate courts yesterday. The Maryland Court of Special Appeals ruled on an interesting discovery issue in a landlord-tenant case that has implications for Maryland personal injury lawyers.

The underlying case is a dispute between Checkers – I’m assuming it is the fast-food chain Checkers we are talking about – and its landlord. Checkers claimed it exercised an option to extend its lease. The case involved an estoppel certificate and a bunch of other things that I did not fully understand. Checkers sought documents from Gallagher Evelius & Jones (GEJ), a Baltimore law firm that represented the landlord. GEJ claimed a bunch of exceptions to the attorney-client privilege that were quite interesting. But the trial court never got to the merits of the argument because GEJ did not present its opposition to the motion to compel in the proper “set-up format.”
At first, I did a double-take when I saw the proper “set-up format.” There is a proper set-up format? But without knowing it, I think everyone here files their motions to compel in what the trial court saw as the proper setup format: setting up the controversy in the pleadings with the request, the response to the request, and the argument so the court is not required to flip back and forth between documents. I never thought it was a requirement and I’m still not sure that it is. But it seems like an excellent idea to avoid further annoying the trial court – usually rightfully so – that you have already annoyed with a discovery dispute.

October 11, 2010

11th Circuit Medicare Liens Ruling

by Ronald V. Miller, Jr.

Medicare liens are the bane of personal injury lawyers trying to settle every time. Settlements don’t and can’t parse out pain and suffering damages for medical bills. What goes to the wrongful death claim? What goes to the survival action? If you get a verdict at trial, this all gets resolved. But with undifferentiated settlements, it is hard to determine what money would have gone where.

Big picture: how to deal with Medicare on liens (2019 update)
Haro v. Sebelius: progress on Medicare lien process

Usually, the bigger problem is not that Medicare won’t reasonably reduce its lien. It is the cart before the horse logistics – it is virtually impossible to settle the lien before the case resolves, leaving clients up in the air and at Medicare’s mercy what their actual recovery will be. It would help settle personal injury cases with Medicare liens if clients could have a more clear ceiling to what the lien amount might be. The 11th Circuit Court of Appeals provided a little help on this with its recent opinion.

Underlying Facts of Case

The case was a Florida nursing home bed sore wrongful death case that settled for $52,500. (This was apparently the nursing home’s policy limit, which makes no sense to me.) Medicare had paid the medical bills so the plaintiff’s nursing home attorneys invited Medicare to take part in the settlement. Medicare did what I would not expect it to do in Maryland, claimed the entire amount. It also declined to take part in the probate hearing to divide up the settlement. So the trial judge moved along, valued the case over $2.5 million, and cut Medicare’s lien to $787.50.

The 11th Circuit ruled that Medicare may not claim full reimbursement from an undifferentiated settlement. The court found that Medicare must take part in any state-authorized process to prorate its lien claim or accept the result when it refuses to take part. Continue reading

October 1, 2010

Recreational Activity Torts

by Ronald V. Miller, Jr.

Recreational activity torts, the stepchild of personal injury cases, appear to be making a minor comeback. The Supreme Judicial Court in Massachusetts reversed a trial court’s order of summary judgment in a case involving a woman hit by a ball from twenty feet away during an outdoor party. The issue on appeal is whether the party’s hosts had a duty to stop a softball game that a reasonably prudent person would know posed risks to guests.

The softball game itself was not really a softball game, just people goofing around. Random people were just taking turns hitting the ball. In fact, participants were told to bunt or swing down on the ball. It was a party, I’m sure it involved alcohol, and some people probably took good swings and hit the ball well. One of those good swings landed close to the Plaintiff, and another hit her, causing the injuries that gave rise to the lawsuit.

The court reversed the trial court’s entry of summary judgment, finding that §318 of the Restatement (Second) of Torts did not absolve the homeowner as a matter of law:

If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor
(a) knows or has reason to know that he has the ability to control the third person, and
(b) knows or should know of the necessity and opportunity for exercising such control.”

I am a plaintiffs’ lawyer. Having chosen this profession, particularly after being a defense lawyer, it is not surprising that I lean towards plaintiffs on issues where reasonable minds differ. But I am mindful of imposing liability at parties when people are playing games involving risks that are open and obvious to everyone. The dissenting opinion, in this case, articulates this concern: Continue reading

August 31, 2010

How to Teach Lawyers Not to Steal

by Ronald V. Miller, Jr.

An Ohio lawyer has been suspended for two-year years suspension for submitting “false and fraudulent” time sheets. Theoretically possible for the workaholic? Sure. But three of her bills reflecting over 24 hours of work in one day, once billing 90.3 hours of work during a 96 hour period. In another, she billed 139.5 hours of work during a 144 hour period.

Although the number of lawyers who paid their bills is probably on the downside in 2010 as more companies are looking for more ways to trim legal budget fat, lawyers who bill by the hour have been padding their bills since Emperor Claudius lifted the ban on lawyers billing over 2,000 years ago. Little known fact: Abraham Lincoln was a notorious bill padder, sometimes charging clients five times the number of hours taken to complete the task. There were scores of client complaints about Lincoln about his billing. (Before you pass this information along, consider the possibility that I’m completely making this up.)

Anyway, while most lawyers don’t, the fact that one lawyer was caught ridiculously padding her bills in not actually a Page 1 story. But I found the defense to the crime particularly interesting: it was the law school’s failure to teach law firm management.

The first reason this is so ridiculous is obvious. As Carolyn Elefant points out, if you can’t figure out you are not allowed to bill more than 24 hours in a day, a law school class will not set you straight.

But the whole idea of Law Firm Management as a course is an exercise in futility. You have to make believe lawyers pretend to run a make-believe law firm with make-believe problems. Students just are not going to really digest the problem. It is like suggesting the guy that won your fantasy football league three years in a row would make a great general manager.

July 26, 2010

Titans Lawsuit Against USC

by Ronald V. Miller, Jr.

The Tennessee Titans have sued the University of Southern California and coach Lane Kiffin for “maliciously” luring away assistant running backs coach Kennedy Pola. The lawsuit claims the hire disrupted planning and “potential loss of confidence by players.”

The first complex legal question here is clear: do you really need an assistant running back coach? Wait, that’s not a legal question. Okay, how was it “malicious”? Was the purpose of the hire to destroy the Titans by hiring their assistant running back coach? What if they had gone after their head running back coach? Can you imagine the inhumanity?

Look, we all get it. Lane Kiffin is doing a lot of things to damage his reputation. But what kind of message do you send when you sue – against a university – for hiring a coach when the actual thing you are mad about is that Kiffin did not “ask” for permission to hire the coach?

February 5, 2010

Illinois Malpractice Cap Ruled Unconstitutional

by Ronald V. Miller, Jr.

The Illinois Supreme Court made big news nationally when it issued its much-awaited opinion in Lebron v. Gottlieb Memorial Hospital> yesterday, The court overturned in a 4-2 ruling the Illinois five-year-old medical malpractice cap on damages because limiting compensation for injured malpractice victims for pain and suffering violated the Illinois constitution.

Specifically, the court found that the Illinois malpractice cap violated the “separation of powers” clause because imposing a cap imposes on a decision that juries should make rather than legislatures.

The underlying lawsuit involves a catastrophic birth injury. Plaintiff’s lawyers alleged that the negligence of the hospital, her obstetrician, and a nurse caused the infant Plaintiff’s cerebral palsy.

The appellate path taken in this case was atypical. Plaintiff sought summary judgment on whether the cap applied, which the trial court granted before they tried the case. Procedurally, this is odd, and the dissenting opinion took exception to decide this case without a verdict. I understand the dissent’s thinking on this. But the parties at least are best served to take this path because they both know how the law will be applied. This makes the case much easier to settle and settle fairly whichever direction the court takes. After the trial court’s ruling, the Defendants appealed directly to the Illinois Supreme Court.

Essentially, the court found that a cap on damages is a legislative remittitur and the failure to leave the issue of remittitur to the court which decides the issue on a case-by-case basis represents a legislative intrusion on the powers vested in the court by the Illinois constitution.

One favorite part of the opinion for me was the way the court responded to the defendant’s argument that other states had damage caps: “That ‘everybody is doing it’ is hardly a litmus test for the constitutionality of the statute.” Continue reading

February 4, 2010

Gross Negligence Standard for Homeowners Defending Their Homes

by Ronald V. Miller, Jr.

Guy breaks into your house. You are terrified that harm will come to you, your spouse or your children. Yet something holds you back from taking decisive action to protect your family.. the threat of a civil lawsuit by the burglar.

Raise your hand if this has not happened to you on multiple occasions. (Last time, I put my gun away and sent my 12-year-old black belt son after the burglar so I could avoid the inevitable civil liability.)

To stop this insanity, House Delegate William J. Frank from Baltimore County introduced House Bill 207 to raise the negligence bar for people who use force against a home or office burglar to make them immune from civil liability unless they acted “with malice or gross negligence.”

Naturally, Maryland courts are clogged with frivolous lawsuits by personal injury lawyers representing criminals who were injured breaking into homes of the innocent. Just ask John H. Josselyn who is with the Associated Gun Clubs of Baltimore:

Far too many attorneys are willing to initiate a civil action on behalf of criminals who allege that the victim, who was acting legally in self-defense, did something that violated the rights of the attacker. Defending a civil action, even when it is a frivolous lawsuit, involves great expense.

Deconstructing This Nonsense

Let’s take a breath and break this quote down and get our arms around whether there is even a portion of it that is not demonstrably false on its face. Continue reading

January 29, 2010

Maryland Local Government Tort Claims Act | P.G. County v. Longtin

by Ronald V. Miller, Jr.

LGTCA is just plain unfair

Yesterday, The Maryland Court of Appeals decided Prince George’s County v. Longtin. The Plaintiff in this case was arrested for murdering his wife. When the real bad guy was found, Plaintiff brought a claim against Prince George’s County, alleging false imprisonment and, more significantly that police officers engaged in a pattern or practice of “unconstitutional and unlawful detention and interrogation” and “excessive force and brutality.” One fact that had to stand out to the jury to lend credibility to his claim: the police ignored DNA evidence that ruled out the Plaintiff, keeping him in jail another six months. The jury bought in, awarding over $6 million in damages, which included over $1 million in punitive damages collectively against the police officers. Why don’t you remember reading about any of this? The murder was over 10 years ago. The wheels of justice sometimes cruise casually.

The jury appeal is easy to see. It is transcendently awful enough to have your wife murdered. But being wrongfully accused when the evidence should have sent police in another direction and then being physically and mentally brutalized by the police? It makes anyone’s top 5 nightmares list. These police officers crossed lines that would make Jimmy McNulty blush. (I’m seeing him in a whole new light now in Showtime’s The Affair.)

July 9, 2009

New Maryland Appellate Opinion on Survival Actions

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals found Monday that the trial court erred in excluding the estate of a five-year-old drowning victim from presenting a survival action for conscious pain and suffering of the child while drowning. You can find the opinion here. I first blogged about this case two years ago after an Anne Arundel County jury awarded $4 million in a wrongful death action brought by his parents. The trial court dismissed the survival claim for lack of evidence that the boy suffered before he died.

The lawyers in the case on both sides did exactly what lawyers should do: make the best arguments for their clients. I would do the same. But it is haunting trying to explain this to your client in a wrongful death/survival action case. “No one knows for sure whether your child (or parent or sibling) suffered awfully before he/she died. But the likelihood is high because (fill in your own awful means of death). So we will argue that he/she endured unbelievable suffering that neither of us can ever imagine.” You don’t say it quite like that. But it is awful, and it makes you want to get another job.

After I frame the issue, the client almost invariably wants to win the argument. This is understandable. But the victim’s family finds themselves in the position of rooting that someone who has never met the person they love finds there was horrible suffering before the person’s death. But they hope and pray that it is not true. It is a grotesque paradox.

Defense lawyers have it worse on some level. I don’t know who the lawyer was in this case but what are the chances that the lawyer went home to their spouse at the end of the day proud of their victory in the trial court? “Honey, I won this argument today where I argued this little boy drowned and didn’t suffer because there is no proof the child suffered because he died – I’m so proud of my victory.” Do you think the lawyer does not know that child suffered? Don’t you have to sadly admit this as you explain the story of your “victory”? Again, I’d make the argument if I was the defense lawyer. Then I would go home and shower. Continue reading