Articles Posted in Litigation Strategies

The Maryland Daily Record reported yesterday that U.S. District Judge Richard D. Bennett dismissed the complaint filed by prison inmate Byron Smoot against hip-hop mogul Russell Simmons, finding that Simmons and co-defendant Missouri based Kellwood Company lacked the requisite minimum contacts with Maryland that would make them amenable to jurisdiction in Maryland.

As an interesting footnote to this case, in 1999 Smoot began a romantic relationship with the prison psychologist. Smoot and a convicted murderer escaped later that year by climbing over the prison’s fence. They ran into town and made a phone call to the prison psychologist. The men were caught two days later after a massive manhunt. The psychologist pled guilty to an accessory charge for housing the men and was sentenced to six months in prison. HBO had a series that aired years ago called “Oz” where the prison doctor fell in love with one of the inmates. I remember thinking the plot seemed outlandish. But this story sounds equally bizarre.

Maryland Long-Arm in Action

Rene Stutzman of the Orlando Sentinel reported this week the post-trial tactic of the defendant’s medical malpractice lawyers after a $28 million verdict in Florida. The tactic: if you lose the trial, put the jurors on trial. Defense attorneys say three of six jurors lied during jury selection and are seeking to bring the jurors back into court to explain themselves. As I explain below, I think this request, if allowed, is a blow to the integrity of the jury system we have. This request would be denied under Maryland law.

The medical malpractice action in the Florida stemmed from a minor surgery performed by Dr. Robert Bowles, an obstetrician-gynecologist, for minor incontinence. Plaintiff alleges that Dr. Bowles negligently performed the procedure and, as a result, she cannot urinate naturally. Instead, the Plaintiff must catheterize herself twice a day for the rest of her life. We are talking about serious damages in this case.

An Offer the Doctor Should Have Taken

Still, the Plaintiff’s attorney told reporters that he had offered to settle for $275,000 before trial. Instead, the doctor and his attorneys rolled the dice, and they got hit with a $28 million verdict. Florida has a cap on pain and suffering damages so she will receive nothing resembling $28 million in even the best-case scenario. (But would you take $28 million for this woman’s injury?)

The doctor’s attorney now alleges that three jurors lied during voir dire, claiming that two jurors did not disclose that they were involved in lawsuits and a third did not mention all the lawsuits she had been involved with in the past. Most of these lawsuits, however, involved unpaid debts in which she was a defendant.

Our Experience with This Nonsense

One of our attorneys tried a case recently where the defense lawyers in post-trial arguments claimed juror misconduct. These lawyers contended that although a voir dire question was asked in the present tense, the juror could not have possibly understood that the question was in the present tense because the question was presumably read quickly. The logic of the argument is that although the juror inadvertently answered the question honestly, she had malice in her heart because she must have understood the question in the present tense. Why? Because she could not possibly have understood the question posed “in an instant during voir dire.” The defense attorneys claimed that while she told the truth, she must have meant to lie.

It flabbergasted me. Can you imagine making this argument with a straight face? Calling this argument ridiculous seems drastically understated. The Anne Arundel County trial judge summarily rejected the argument. Defendant’s attorney noted an appeal but shortly thereafter agreed to pay the entire judgment.  Why?  The claim was just silly.  Continue reading

A former insurance law student of mine asked this week whether Pittsburgh Steelers quarterback Ben Roethlisberger’s failure to wear a helmet in his motorcycle accident earlier this month would be contributory negligence under Maryland law. Good question! Under the current state of the law, the answer is a qualified no.

The Maryland Court of Appeals addressed this issue 36 years ago in Rodgers v. Frush, 257 Md. 233 (1970). This case involved a motorcycle collision case in PG County where the Defendant sought to introduce evidence at trial from a medical doctor who would testify that the Plaintiff’s failure to wear a helmet exacerbated his injuries from the motorcycle accident. The Plaintiff argued that this evidence was not relevant to contributory negligence because it did not involve the Plaintiff’s or Defendant’s standard of care. The court agreed, and our high court affirmed. The court noted that while Maryland had passed a helmet law three years after the accident, this did not establish a standard of care.

I earlier said the answer is a qualified no because the court said there was not a standard of care that one should wear a helmet. There is now a helmet law in Maryland. But this appears to be dicta, given the core of the court’s holding that failing to wear a helmet does not go to the question of the standard of care.

A related question is whether this evidence could be admitted under the doctrine of avoidable consequences. Plaintiff compliance with the appropriate safety requirements could have avoided similar to the contractual rule of mitigation of damages, the damages that could have been avoided are reduced from the recovery.

The Court of Appeals in Rodgers considered this issue. The court determined that the doctrine of avoidable consequences applied only to conduct that occurred after the tort (again, analogous to the mitigation of damages). The court also cited a North Carolina case with approval that articulated that it also would not apply the doctrine of avoidable consequences because it would (1) not ask jurors to parse damages because this would invite verdicts on prejudice and sympathy contrary to the law, (2) create ‘unnecessary conflicts in result,’ and (3) degrade the law by reducing it to a game of chance. (I frankly do not understand how the latter two factors apply to the doctrine of avoidable consequences.)

The arguments on this helmet issue are very similar to the arguments on failing to wear a seat belt issue, which was addressed in an earlier blog post.

Here is how a few other jurisdictions have addressed this issue:

Continue reading

In his blog last year, Evan Schaeffer attached an article by Chicago attorney Paula E. Litt titled “Tips for Making Damages Testimony Come Alive.” Ms. Litt’s article offers twelve tips: (1) Speak plainly; (2) Establish credentials wisely; (3) Tell a good story; (4) Play from higher ground; (5) Show pictures; (6) Get the expert moving; (7) Use examples; (8) Keep it simple; (9) Be enthusiastic; (10) Don’t get caught short; (11) Know your expert; and (12) Don’t underestimate the jury.

Ms. Litt handles mostly copyright and insurance coverage cases so some advice seems tailored toward business litigation (it would be odd for an accident attorney to “be enthusiastic” when discussing with an expert the loss of future earnings of a father who was killed in a car accident). I also do not agree that attorneys should assume that the jury knows as much about the damages as the lawyer does, which she articulates under the otherwise sound notion of not underestimating the jury.

The only other “problem” with this article is that most of her sound advice is really directed to the expert, not the lawyer calling the expert to testify. As much as we would sometimes like to, we cannot change our witnesses.

Voir dire is the selection process in which prospective jurors are questioned and challenged to weed out jurors who may hear the case with an inordinate amount of prejudice and bias that lurks in the thinking of every Maryland juror. In most jurisdictions, the potential jurors are examined either by the prosecutor or, in a civil case, the plaintiff’s attorney for both cause and peremptory challenges.

Unfortunately, in Maryland, voir dire is limited to questions proposed by counsel to be asked by the judge. There have been studies done in the voir dire context that show questioning from a judge inhibits juror candor. What then do Maryland lawyers rely upon in picking a jury? Gut instincts and stereotyping.

Before every trial, I read anything I can get my hands on to get a better idea of what I am looking for in potential jurors who will be receptive to my client. One very early morning, around 1:00 a.m., before a huge trial, I went to my good friend Google and did a search. I found a law review article from Ohio Northern University (have you ever heard of it?) from 1990 that summarized the literature on stereotypes in juror selection.

What Jurors Do You Want?

I disagree with at least a full third of the article, but it is fascinating. Here are some conclusions of the studies/article summarized: Continue reading

Most insurance adjusters tell personal injury lawyers that they need a recorded statement from the lawyer’s client to “firm up liability” or to “assess credibility.” But providing a recorded statement is typically a “loose-tie.” It rarely results in a finding on liability in favor of the accident attorney’s client. Not that this is always the case, but absent special circumstances, the downside far outweighs any benefits.

Defense attorneys use recorded statements to parse sound bites out of context, often giving ample fodder for cross-examination against your personal injury client at trial.

• Here is one fun trick when the third party insurance carrier asks for your client’s recorded statement

A lawyer in Virginia emailed to ask me if failure to wear a child seat is contributory negligence in Maryland?

Setting aside for a moment the abject irresponsibility of this mother who failed to ensure the safety of her child, the answer is no.

Maryland Law

The Maryland Transportation statute that requires the use of child safety seats specifically states that a violation of the statute, while a crime, is “not contributory negligence and may not be admitted as evidence in the trial of any civil action.” Maryland Transportation Code § 22-412.2(i).

Parenthetically, the same logic holds true with failing to wear a seat belt in Maryland. While it may be a crime, a “party, witness, or counsel may not make reference to a seat belt during a trial of a civil action that involves property damage, personal injury, or death if the damage, injury, or death is not related to the design, manufacture, installation, supplying, or repair of a seat belt.” Maryland Transportation Code Annotated. § 22-412.3. In summary, the failure of a personal injury plaintiff to use a seat belt or a child seat is not admissible at trial, although it is a misdemeanor crime (I feel compelled to continue to repeat this).

Concerning the admissibility of the use of seat belts in Maryland, this sword cuts both ways in that personal injury lawyers often want to present evidence that the lawyer’s client was wearing a seat belt to underscore that the injury victim did everything that he or she could to prevent serious injury. But this testimony is also not permissible under § 22-412.3.

Nationally, there is a split of authority whether, under principles of mitigation of damages or as contributory or comparative negligence, an injury victim’s failure to wear a seatbelt can justify a reduction in the number of damages that he or she receives. But even in jurisdictions that allow such evidence, a reduction is usually justified only if the Defendant’s attorney can provide medical evidence to a reasonable medical certainty that Plaintiff’s injuries could have been eliminated or reduced had Plaintiff been wearing a seatbelt when the accident occurred. See DiPirro v. U.S., 181 F.R.D. 221 (W.D.N.Y. 1998). Continue reading

Psychologist David Ball has published a second edition of his book on damages called, appropriately, Damages.  The book costs $85 (only $35 in 2017). The first edition was a similar price, felt, and looked like a thin, big print paperback. But looks are deceiving in this case. The book is excellent, offering insight based on systematic research on how jurors decide damages. Dr. Ball discusses juror motivations for awarding money, why some jurors are reluctant to award compensation, and specific strategies to enhance damages for voir dire (which does not really apply in Maryland), opening, direct and cross-examination, and closing.

I heard Dr. Ball speak last year at the Maryland Trial Lawyers Association convention. He was impressive. Like me, he believes in juries and realizes they are far smarter than most personal injury lawyers believe they are. Dr. Ball does not give you information to “trick” the jury because he knows juries almost rarely fall for such artifices. Instead, Dr. Ball looks at some of their motivations for not giving fair compensation and how to overcome those obstacles.

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