Maryland Injury Law Center

August 6, 2013

How Safe Is Talking on the Phone While Driving?

We can all agree that texting while driving is a death wish. We don’t need an educational campaign. Everyone knows this now. The question is just whether you are stupid enough to risk your life and mine.

The bigger question engendering more real debate is cell phone use in general. I have always been in the camp that the big issue is distracted driving generally. I don’t use the phone when I’m driving with my kids in the car. (No, I can’t explain why I don’t extend this to your kids who are on the road with me when I drive alone.)

The real issue is distracted driving

July 25, 2013

Does Maryland Have a Dram Shop Law? | Warr v. JMGM

by Ronald V. Miller, Jr.

Lots of big opinions coming down from the Maryland Court of Appeals lately. In a tight decision- much tighter than I would have predicted – our high court affirmed long-standing Maryland laws that protect bars and restaurants who serve people they know or have reason to know, will drive drunk, and put our kids at risk. You can tell by the way I loaded that statement how I feel about it.

This was a great case for plaintiffs to bring to test this law. A 10-year-old girl was killed in a high-speed crash on I-270 by a guy who had been served 20 drinks at a Gaithersburg bar. The poster case for why we need to enact dram shop laws.

The Court’s Opinion

July 23, 2013

$55 Million Turns to Zero | Baltimore Malpractice Verdict Reversed

by Ronald V. Miller, Jr.

Last summer, we were talking about the $55 million cerebral palsy malpractice verdict against Johns Hopkins. This summer the verdict – which was reduced to $28 million – is hanging by a thread after the Maryland Court of Special Appeals overturned the verdict. Unless the Maryland high court sees the case different, this case will go back to the trial court in Baltimore to start all over again.

New Trial in Baltimore Birth Injury Case

This appeal hinged on the decision by Baltimore City Circuit Judge Marcus Z. Shar – considered a top judge by plaintiffs and defendants alike – to exclude evidence of the negligence of the midwife before the baby got to Hopkins.

The judge’s logic was that it really did not matter why the child was in a tough spot. So whether or not another health care provider created the crisis, the ultimate issue is whether Hopkins could have saved the child from these awful birth injuries if it had not deviated from the standard of care. Judge Shar found that:

[T]he defense was not prevented and did, in fact, present evidence that the midwife’s conduct was dangerous under the circumstances, why it was dangerous under the circumstances that it caused the damages, and how it caused the damages.

Defense was free to vigorously argue that the midwife’s conduct was the proximate cause. They were, however, prevented from characterizing the conduct as “negligent.” Telling the jury that a nonparty is negligent as opposed to how the conduct affected what happened to the plaintiff would have been prejudicial and not relevant to the case.

July 11, 2013

Medical Assistance Liens in Maryland Personal Injury Cases: New Rule

by Ronald V. Miller, Jr.

We have rejected several tort cases because Medical Assistance made payments for the victim’s outstanding bills. Why? Because the state refused to significantly reduce (or at all) its lien to account for attorneys’ fees. Sure, DHMH could reduce or waive their lien if it will cause “substantial hardship.” But “substantial hardship” was not defined and I think we had a very different definition than the subrogation folks at Medical Assistance.

It might sound a little heartless, but it is the exact opposite. The Medical Assistance problem did not affect our attorneys’ fees but had a real impact on how much money the client could recover in the case. If we don’t think we can make the client happy at the end of the case, we will not pursue the claim, regardless of how much money we think we can make on the case.

But things are now a lot better because of new rules that have adopted by the Department of Health and Mental Hygiene and codified as COMAR 10.09.83. Pursuant to these new regulations, the state will now allow for attorneys (I’m not sure about pro se plaintiffs, I need to read it again) to negotiate a reduction in the lien to account for the victims’ legal fees.

July 9, 2013

Does Maryland Have Comparative Negligence? (Updated in July 2022)

by Ronald V. Miller, Jr.

The Maryland Court of Appeals ruled today that Maryland will not make the leap to comparative negligence, choosing instead to defer to the legislature. The court has the power to change the law; it wants you to know. But it chooses not to do so.

Contributory negligence still inexplicably remains the law of the land in Maryland.

I think contributory negligence is inane, which is why so few states have kept it. Should the court defer to the legislature to make the call? I really don’t know.

July 2, 2013

Judge Barbera to Be Named Chief Judge of Maryland Court of Appeals

by Ronald V. Miller, Jr.

Judge Mary Ellen Barbera will be the first female chief judge of the Maryland Court of Appeals, our highest court, according to current Chief Judge Robert Bell who told the AP of the selection.

It is a strange way to make the announcement of this magnitude. Was Chief Judge Bell talking out of school? Maybe he was given the courtesy of knowing in advance and he spilled the beans, maybe inadvertently. I suppose they could have told Bell to leak the announcement, but I doubt it. Governor O’Malley refused to talk about Bell’s announcement when asked by reporters after an event he attended recognizing pro bono attorneys. A news conference is scheduled for Wednesday.

Chief Judge Bell, who is a true legend and hero to many, has taken a lot of shots on his way out the door of late. He will reach the mandatory retirement age of 70 on Saturday.

July 2, 2013

Another Reason Why the First Settlement Offer Is Usually Terrible

by Ronald V. Miller, Jr.

It’s been a bit since I’ve written about how awful insurance companies’ first settlement offers are in serious injury cases. But I’m sure I’ve given a client the speech in the last 24 hours. I do it all the time.

The primary reason the first offer is usually far from the true settlement value is that the insurance company is giving a gut check to the plaintiff. They are implicitly asking them whether they will throw some punches to get the money they are entitled to get. Plaintiffs’ lawyers complain about this as if it is some holy war between good and evil as if insurance companies have some moral obligation to offer the trial value to settle. I hate insurance companies and all. But I have to admit that if I were them, I would do the same thing. Their job is to make a profit for their shareholders, not offer third-party plaintiffs what the insurance company really thinks the claims are worth. The game is the game.

But there is another reason the first settlement offer is wildly out of line with the true value of the case: most insurance adjusters are lazy (as are most plaintiffs’ lawyers). To get to the actual value of a case, peel that onion again and again. So they take just a cursory look at the case, knowing that even if the settlement offer is rejected, they have multiple more bites of the apple down the road. So think about it, what would you do if you were an adjuster in that environment? Dig deep and risk that someone auditing your cases will say you overpaid for it? Or just put it off a little while? With GEICO and a lot of other insurance companies, you are not even kicking that can to yourself, another adjuster will get the file after suit has been filed.

Among the major insurance companies, State Farm and Allstate are the two that will often stick their feet into concrete on what they think the case’s value is. They stick to their early values more than the others, probably because they rely on computer-generated data to value claims more than many others. Why is this? Ever read or hear about the Checklist Manifesto? That book is that ER doctors looking at cardiac patients are better off using a checklist to evaluate the risk of a heart attack or stroke, then they are using their own independent judgment. Sounds crazy. But some data seems to bear out that you would be better off with a nurse with a checklist than an experienced board-certified cardiologist in a lot of cases.

I like to brag on this blog and our website about the times Allstate and State Farm – particularly State Farm because it happens a lot – get it wrong, and we hit in excess of their insured’s policy limits. There is an implicit, “they are so dumb, we are so smart” aroma to the whole thing, I’ll admit. “We got 35 times the settlement offer,” I like to brag. And I will not stop, either. But that does not mean in the big global picture it is not a smart strategy. Continue reading

June 26, 2013

Maryland Bans Crib Bumpers

by Ronald V. Miller, Jr.

On Friday, June 21st, Maryland’s ban on the sale of “hazardous” baby bumper pads will go into effect.

The Maryland Department of Health and Mental Hygiene has said that they intend the ban to help educate parents about safe sleep practices for babies. The ban applies to crib bumpers that are made of non-mesh type material, and are intended to rest directly above the mattress, along the length of the interior sides of the crib.

Violations for selling crib bumper pads to Maryland consumers involve warnings or a fine of up to $500 per item shipped or sold. I don’t think anyone was selling them here, anyway. I think just gets the word out of the risks of these pads and that is a good thing.

June 18, 2013

Can Lawyers Properly Value Personal Injury Cases?

by Ronald V. Miller, Jr.

When trying to figure out the settlement value of a personal injury case, trial attorneys pull from usually only one resource: their own experience. We pull from our own cases and from cases we have heard about from other lawyers. But how good are we at valuing cases?

First, it is important to underscore how unbelievably important this skill set is for trial lawyers. Mostly when a case goes to trial, it is because someone miscalculated the value of the case. The insurance companies rely heavily on data in valuing cases (which sometimes reliably cements their reputation as unfeeling robots). While they deny it, they continue to believe that they can predict how much money a jury is likely to award based on the relationship between the amount of special damages (medical bills and lost wages) and the award for noneconomic damages. Sometimes this logic holds. The key skill for personal injury lawyers if being able to identify which cases defy the data because of intangibles that data cannot measure.

Twelve factors that matter in evaluating injury claims
What I have learned from reading reports of thousands of jury verdict reports
Writing demand letters

Most notably, insurance companies invariably devalue the character, or lack thereof, of the plaintiff, which is just an unbelievably critical value marker. So the insurance company’s predictions misfire both ways. Knowing when the insurance company has miscalculated the value of a case gives you a tremendous advantage over the insurance company because you know which offers or demands should be accepted – some will be steals – and which cases should be tried.

An article titled “Predicting Civil Jury Verdicts: How Attorneys Use (and Misuse) a Second Opinion” written in the Journal of Empirical Legal Studies provides the answer how personal injury attorneys do as a class in estimating verdicts: not good.

The average accuracy error for lawyers in predicting the value was 0.387. For a verdict of $100,000, this is equivalent to an estimate of $244,000 or $41,000. That’s a big range. With those estimation skills, it is a wonder more cases don’t go to trial.

The study found that when you averaged the estimates of more lawyers – testing the idea of bouncing case value off other attorneys – the average estimation error dropped to 0.228, which on a $100,000 case is equivalent to an estimate of about $169,000 or $59,000. When expanded to 28 lawyers, the average estimation error was 0.130, equivalent to an estimate of $135,000 or $74,000. Continue reading

June 4, 2013

New Maryland Rule

by Ronald V. Miller, Jr.

Technology is slowly eroding our privacy. Personally, and I’m in the minority, I’m think it is a fair trade-off. I’m okay if Apple and Google know where I am every second of the day. I’m not doing anything all that interesting.

But most people are increasing worried about technology and Big Brother. The Maryland Court of Appeals is trying to stem that time. Effective, next month, a new rule will go into effect that instructs attorneys and others who file documents with a court to keep unnecessary personal information out of the court records when possible.

While I’m not a big privacy guy, I think appellate opinions (and blogs) should leave out the names of parties to a lawsuit. I don’t use names because I don’t want someone Googling their dead father and find my blog discussing impersonal details about their death and how they lost their case trying to seek justice for his death.