Articles Posted in Maryland Courts

The Maryland Daily Record is reporting that Governor O’Malley today named Robert N. “Bob” McDonald to the Maryland Court of Appeals. Soon to be Judge McDonald is the chief counsel of the Opinions, Advice and Legislation Division in the Office of the Maryland Attorney General where he has been for 15 years.

McDonald writes or edits all formal opinions of the Attorney General’s Office. I don’t have occasion to read many Attorney General opinions and, even if I did, I don’t think it would be a great lens to predict how McDonald will vote. Ultimately, the AG is making the call on those opinions.

There are a lot of 4-3 decisions by the Court of Appeals. I have no idea how this will affect that court and I doubt many people do.

I was always into statistics. When I was little, baseball statistics were the outlet. I was doing Moneyball when Billy Beane was still learning what a double steal is. (This is hyperbole. I like to exaggerate the things I saw coming.)

Like a lot of us, I looked at risk differently when I became a parent. Now I’m more interested in what the authors of Freakonomics tell us about what matters when raising a child. (Here’s the transcript of a podcast I recently listened to which I found more than a little depressing. It really makes you question the efficacy of piano lessons.)

Freakonomics interests me because it uses statistics to assess the risk that questions largely held assumptions. I try to use statistics in parenting to make sure my kids are avoiding the risks that we can reasonably avoid. Car accidents are on a big blip on the radar screen. Car accidents are a major risk of serious injury and death for young children, a far greater risk that 95% of the things you worry about as a parent.

Three years ago, after the Maryland Court of Appeals denied certiorari in Allen v. Marriott Worldwide, our law firm stopped taking snow and ice slip and falls. Maryland appellate courts had been battering bad weather slip and fall plaintiffs over the head with the assumption of the risk doctrine. We distilled this law to be that if you are not running out of a burning building; you knew there was a possibility that you might slip and fall if there was a sign the weather was bad and you had a choice. Assumption of the risk became metaphysical “you had a choice, didn’t you?” that killed every case.

New Maryland Snow/Ice Slip and Fall Case

To my surprise, Maryland law took a clear, deliberate, and unanimous step back from this insane abyss last week in Poole v. Coakley Williams Construction.

What Happened in Poole

The Plaintiff, in this case, claims alleged that he slipped and fell on black ice in a parking lot in Montgomery County behind his place of employment. Plaintiff blamed the defendant who was at the site performing construction work for causing the black ice to form, and that there had been a stream of water that way for some time. In fact, Plaintiff thought it was safe because he had walked through that same stream a week before without incident. So it is as good as an ice slip and fall case as you can get because it is more than “you should have put salt down or shoveled the parking lot” case. Still, regardless of the injuries, we would not have taken this case post-Allen because it is still – on the bizarro world level the court used in Allen – the technical assumption of the risk. The summary judgment is easy, just ask the ole’ “you knew there was water, and you knew water can get cold, right?” setup.

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The Maryland Court of Appeals issued a game-changing lead paint decision today, declaring unconstitutional an awful Maryland law that immunizes most Maryland landlords who rent properties that cause children brain injuries from lead paint.

A Brief History of Lead Paint Lawsuit in Baltimore

Before I get to that, a little background. In the late ’90s, before I saw the light and became a Plaintiffs’ lawyer, I defended several lead paint cases in Baltimore City. These were the halcyon days for lead paint personal injury lawyers in Baltimore.

Many lead paint lawyers in Baltimore had such a good thing going that they didn’t bother to focus on the details, you just filed your lawsuit, then settled using one or two experts that said virtually the same thing in every case. Printing money in your basement would be less profitable. Plaintiffs’ lawyers rarely bothered to make a claim for economic damages, for future loss of income from their brain injuries. (Now, every lawyer with a lead paint case does this.)

Lawyers who had a big inventory of lead paint cases had plenty of time to decide which cases to file. There was tons of time because the plaintiffs were children that rarely had imminent statute of limitations issues. So, they filed the ones with the highest lead levels first. (The lead level in this recent case was less than 25. There were very few cases in the ’90s that had a level that low.) As a result, you had these great plaintiffs’ lead paint cases going to trial in Baltimore City. Plaintiffs’ lawyers had two other things going for them: (1) insurance companies had yet to put in lead paint exclusions, and (2) most cases in suit were not yet impacted by the 1994 Reduction of Lead Paint in Housing Act.

The Act slowed down, as was intended, the furious pace of lead paint lawsuits. The stated purpose of the Act was to “reduce the incidence of childhood lead poisoning while maintaining the stock of available affordable rental housing.” Strangely not mentioned purpose: protecting landlords who were needlessly exposing children to brain injuries from lead paint, which is exactly what it did.

This Act was a stunning victory of landlord lobbyists. The law completely immunized from a lead paid lawsuit negligent defendants if they registered their property with the state and offered payments of $17,000 to children injured by lead poisoning. “Sorry your child has lost 12 IQ points from lead paint that would could have easily remedied. Here’s is $17,000 when she turns 18. We are square, right?”
But, today, an incredible two-and-a-half years later, and almost 10 years after the lawsuit in the case was filed, a unanimous Maryland Court of Appeals struck down on constitutional grounds the 1994 Lead Paint Act if it immunized landlords from liability if they allow chipping or peeling lead paint from causing brain injuries to children. “For a child who is found to be permanently brain damaged from ingesting lead paint, proximately caused by the landlord’s negligence, the maximum amount of compensation under a qualified offer is minuscule,” retired Judge John C. Eldridge wrote in the court’s opinion. Agreed.

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The Georgia Criminal Appellate Blog writes about the concern that his clients will “over-learn” the lesson of Amanda Knox’s successful appeal:

For the criminal trial lawyer, the Casey Anthony verdict was the result that made it difficult to counsel clients on whether to accept a negotiated plea rather than risk a trial against an overwhelming case. Several colleagues have told me that clients have balked in the face of solid legal advice, reasoning “that girl in Florida got off.” Amanda Knox is, I fear, the appellate lawyer’s Casey Anthony. It does not matter that it’s a different legal system in a foreign country. The comparisons are coming. It is time to prepare with some key points when you face the inevitable comparisons.

This concern is equally applicable for clients of malpractice and accident lawyers. Amanda Knox, from a distance, represents what everyone wants in the appellate process: you keep appealing and appealing until you win and that appellate win is final. Sometimes, not just in law but anything, getting a little information about how the sausage is made can cause more harm than good because you lack context. There is, as always, a good cliché on point: a little information can be more dangerous than no information (or something like that).

(This is my problem in the stock market. I majored in finance in college so I think I know what I’m doing. But I get myself in trouble for making stupid bets, relying on something I heard in Investment Analysis my junior year in college. (2013 Update: I’m back, baby. I am a genius after all!)

Tort appeals are hard for both sides because most of the rulings from the trial judge to which plaintiffs’ lawyers take exception are evidentiary issue where the standard on appeal is the abuse of discretion. That’s a tough road to travel after a defense verdict. We have done it successfully, but most personal injury trials do not end with a quality appealable issue. Continue reading

Twitter is giddy about a Baltimore Sun report that a medical malpractice defense law firm lost a portable hard drive containing medical records for 161 stent patients in the lawsuit against cardiologist Dr. Mark G. Midei for alleged malpractice at St. Joseph Medical Center in Towson. Apparently, an employee of the law firm Baxter, Baker, Sidle, Conn & Jones left the hard drive on the Baltimore light rail. It is a good story anyway, but this one is extra juicy because it involves the most prolific malpractice lawsuit in Baltimore. So it is the perfect storm. The lawyers at Baxter, Baker must have muttered a thousand times by now: why this case of all cases?

The irony of all of this bad publicity for Baxter, Baker – which is a very good law firm – is that they did what their malpractice clients rarely do: they owned up to their mistakes. The law firm notified St. Joseph – its hospital client – and the malpractice insurer of the hard drive loss shortly after the loss and acted fairly quickly to let the patients know of the potential invasion of their privacy. Ultimately, while it is unfortunate that patients who have already suffered have to fear this potential invasion of their privacy, the good news is that this is very unlikely to cause anyone harm. There are probably far greater privacy risks for these patients out there. (Where is the defendant’s medical expert keeping these records?) The way Baxter, Baker could really screw up would be in the cover-up which they wisely did not attempt.

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