Ron Miller is an attorney who focuses on serious injury and wrongful death cases involving motor vehicle collisions, medical malpractice, and products and premises liability. If you are looking for a Maryland personal injury attorney for your case, call him today at 800-553-8082.

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The Maryland Court of Special Appeals issued its opinion a few weeks ago in a negligence per se case, Paul v. Blackburn Limited Partnership. If you are a personal injury lawyer in Maryland, this is not optional reading. Because I’m betting money someone will win a legal malpractice case in Maryland one day because they did not heed the implicit lesson that just might be in this case. So ignore it at your own risk.

The defendant, in this case, owned an apartment that had an outdoor pool. Unfortunately, you know where this is going. Just about every pool case is the worst violation statute causationcase ever. A three-year-old boy wandered into the closed pool area. When the pool manager and lifeguard unlocked the gates, they found the plaintiff’s son unresponsive and submerged in the water.

(The question you have to be asking – the one far more important than the legal issues in this case – is how on earth did this happen? The boy’s 10-year-old half-brother was watching the child. The boy threw a toy, the 10-year-old ran down a hill to get it, leaving the child alone, and when he got back he did not find the boy. I will have a 10-year-old at the same time I have a three-year-old. I also have a swimming pool.)

As a result of the incident, the plaintiff’s son suffered a severe anoxic brain injury leaving him nonverbal, visually impaired, dependent on a gastric feeding tube, and requiring constant care from others. Again, the worst thing. The detective investigating the incident concluded that the plaintiff’s son had squeezed inside through the front gate because the lower half of the gate was loose. In addition, some parts of the fence could be pulled open because of missing metal crossbars.

The plaintiff sued, alleging negligence per se and negligence. Quick question: When you think you may have negligence per se, do you plead it in the complaint? You do? Okay, you’re a big liar. Our law firm has never done it and I have yet to find anyone who says they plead negligence per se as an ordinary practice. Heads up: I still can’t imagine a court kicking the case if you don’t, but as you will see below, you really don’t want to take the chance because the court here seems to assume that it has to be pled in the complaint. It is like I just told my law partner, I can’t imagine in a million years a court would require you to plead this in the complaint. But when the appellate decision on my case when I failed to mind the ruling, in this case, was coming down, I would be on the edge of my seat (You may not like this sentence, but I don’t know how else to say it). One rule of personal injury practice: do everything you can easily do with no risk of harm if you would sit on the edge of your seat when you were called out for your failure to do it.

Anyway, incredibly, the plaintiff’s lawyer pleaded negligence per se, claiming in the complaint that the defendant was negligent per se by failing to comply with Maryland’s COMAR regulations, the Montgomery County Code “MCC”, and the Code of Montgomery County Regulations (“COMCOR”). Second, the plaintiff contended that the defendant was negligent in breaching its duty of care to maintain the pool in a reasonably safe condition for all residents of the apartment. Continue reading

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The Maryland General Assembly passed a bill this week which would make talking on a handheld cellphone while driving a vehicle a primary offense. If the bill is signed by Governor O’Malley, as expected, a police officer could pull a driver over under this bill for talking on a handheld while their vehicle is in motion. The bill would allow you that quick phone call at a stoplight and you can still use your GPS on your phone.

maryland phone banA first handheld offense would be punishable by a fine up to $75 fine. A second offense could be $125, and a third could be $175.  A fourth offense?  Geez, do we need to even figure that out?  I think if you drive through the city screaming “Hey, look, no seat belt” you still are probably not going to get charged with this three times.

This is the progression of things. It is easier to pass the bill as a secondary offense and then bump it up in a few years. We are sheep and accept change a little better that way.

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Last summer, the Maryland Court of Special Appeals decided Dixon v. Ford Motor Co. (discussed by me here) in which the court reversed a $15 million verdict (reduced to $6 million by the cap on noneconomic damages, and down to $3 million because of a joint tortfeasor settlement), finding that although expert maryland asbestos casetestimony about the particular estimates of asbestos exposure was impermissible, the expert can testify as to the ranges of exposure and their approximate hazards… but saying there is “more risk” without an estimate will not get you there. Basically, the path the court suggested was having the expert testify using the plaintiff’s contentions as hypothetical facts and estimate the likelihood that the plaintiff suffered various exposures to asbestos, and the likely risks consistent with those exposures based on epidemiological data.

The case has been appealed to the Maryland Court of Appeals and has now been briefed. I read the plaintiff’s brief. They are arguing largely about what I did in my blog post (yet they didn’t cite me!): the jury was in a perfect position to make the call and they made it.

The Coalition for Litigation Justice and Product Liability Advisory Council, two shameless corporate hacks that have never seen a viable lawsuit in their lives – actually they are cool with lawsuits from anyone who is not injured (their worldview: a civil justice system only for big company battles and collecting debts from people) – filed amicus briefs arguing essentially that it does not matter if everyone using common sense knows where the exposure comes from – plaintiff can’t prove it on a hyper-technical level and therefore Ford should get a pass on the harm they caused. (I think that was what they argued… I couldn’t bear to read them all.) Does the court really read this garbage from cover to cover? Has a single appellate opinion in human history ever been swayed by one of these briefs?

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Another new Maryland lead paint decision

The Maryland Court of Special Appeals reversed a $5.1 million (reduced to $1.25 million by the cap) lead paint verdict in a 91-page opinion written by Judge Shirley M. Watts.

The first 58 pages of this opinion are facts. But there are two real issues: (1) did plaintiff’s expert, a pediatrician, have the qualifications to render the opinions that the lead exposure at defendant’s property caused the brain injuries alleged in this case, and (2) did the trial court properly sanction the defendant and his lawyer for alleged willful discovery violations.reversed lead paint verdict

I care little about the latter issue because I’m just not a big fan of monetary sanctions against counsel. I’m really interested in sanctions like spoliation instructions and other sanctions that give a tactical advantage. But the retail value of the paper used demanding monetary sanctions is greater than the actual amount of sanctions against counsel that have been awarded and paid. The issue, in this case, is interesting – the opinion breaks down in painful detail – but it is ultimately as useful to me as my recollection of the Baltimore Orioles 1979 batting order. (I do, however, recommend reading the details about these sanctions for the entertainment value. I’m amazed that Judge Watts did not even comment in an off-hand way about the trial court’s findings of extreme discovery violations. I would not have the same discipline.)

So on to the actual issue: the qualification of the expert. The court found that even though the pediatrician was a licensed doctor and all, he really was not qualified or even prepared to render an opinion in this case. He had limited experience in treating kids with lead paint poisoning, never evaluating or diagnosing children with lead exposure, or even following the progress of kids with lead exposure. In fact, he did not even recall treating a child for lead poisoning. His qualifications, distilled down to their essence, appear to be that he is a pediatrician who keeps up with the medical literature. Continue reading

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Last week, the Court of Special Appeals of Maryland reinstated an award of $1.1 million in the case of Barnes v. GBMC. This appeal focused on the certificate requirements of the Healthcare Malpractice Claims Act (HMCA) besides other procedural questions surrounding the case.

Facts of Barnes v. GBMC

First the facts. Plaintiff sees his primary care physician because he is experiencing weakness and numbness in his right hand, arm, and side. The doctor thinks the Plaintiff is having a stroke and sent him to Greater Baltimore Medical Center or, as we all call it, GBMC. He is not sent to the emergency room but to the urgent care department which typically gets, as you would think, less urgent cases. This is the origin of a lot of lawsuits to be sure.

Plaintiff’s note from his original doctor is misplaced during this process, so the initial assessment of a potential stroke was lost. So instead of getting the care he needs, Plaintiff is worked up for his wrist and diagnosed with carpal tunnel syndrome.gbmc malpractice verdict

Plaintiff goes home. The admitting nurse realizes the mistake and calls the Plaintiff and tells him to come back. It is determined that Plaintiff needed a medical evaluation by an attending physician. The Kaiser physician never appears, and the Plaintiff is discharged at 1:00 a.m. the next morning. Total mess, right? Later that day, Plaintiff suffered a full stroke.

The case goes to trial five years later in February 2010. Remember that massive storm we had where you lost your power? Plaintiff had the bad luck to have his case in the middle of that storm. So there is a mistrial and the second trial is set for March 2011.

The Verdict

At trial – finally, six years later – the case goes to trial. Plaintiff’s key expert witness testifies regarding the breach of the standard of care as the proximate cause of Plaintiff’s injury. This expert testimony is that if Plaintiff had been properly evaluated, he would have been placed in the emergency department where a physician could have delayed or prevented the stroke, a fact that seems obvious to all of us. Twice during the trial, the defendant moved for judgment as a matter of law on causation grounds. Both motions were denied, and the jury found for the Plaintiff. Damages were over $1.1 million.

After the trial, Defendant moved for a post-trial JNOV. The circuit court granted the motion on causation grounds. The court found that Plaintiff’s expert witness did not establish a sufficient nexus between the violation of the standard of care and the subsequent stroke.

I think the court did a smart thing and let the case go to a verdict before kicking the verdict. I don’t like the ruling and, as you will see, the Maryland Court of Special Appeals did not either. But you do both parties a disservice by dismissing the case and making them try it all over again if you get it wrong. Here, the judge gets it wrong, but it all works out from a judicial economy standpoint because this case was getting appealed either way.

The Appeal

The Court of Special Appeals took up three questions on this malpractice appeal. First, did the circuit court err in denying GBMC’s motion to dismiss for failure to file a legally sufficient report from a qualified expert? Second, did the circuit court err in granting the defendant’s motion for JNOV based on insufficient causation evidence? Finally, did the circuit court err in denying GBMC’s motions for judgment based on insufficient evidence?

To the first issue, Plaintiff’s medical malpractice claim requires a physician’s certificate because it falls under the Health Care Malpractice Claims Act. Where a plaintiff cannot provide a certificate of a qualified expert, the case will be dismissed without prejudice. So the question is whether the certificate was deficient.

Here, the certificate was properly filed, but the defendant claimed that the report lacked sufficient detail regarding the deviation from the standard of care and how GBMC caused the plaintiff harm. The court found the argument to be meritless because the expert properly supplemented the written report with testimony, thus fully explaining his opinion on the case. Also, GBMC had access to this expert testimony from the mistrial before the second trial. This means that once the second trial began, any problems with the initial testimony or report were fixed essentially because they were supplemented. The court noted that the defendant waited six years to raise this issue. Wisely, the court refused to reward the sandbagger. Continue reading

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The Maryland Court of Appeals rendered an opinion in Ross v. Housing Authority of Baltimore City last Friday that is important not only to Maryland lawyers handling lead paint cases, but to any plaintiffs’ attorney who is putting up an expert at trial. That’s all of us. The plaintiff, in this case, alleged that she had sustained permanent brain damage from lead exposure at two homes in which she spent her childhood. She enlisted the help of an expert witness to establish that the defendant’s building was the source of her exposure and her elevated blood lead levels. After the circuit court granted the defendant’s motion to exclude the expert testimony, the plaintiff appealed.

The circuit court’s decision was based on Maryland Rule 5-702, which reads:

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

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The Maryland Court of Special Appeals issued a new opinion in Nance v. Gordon, a medical malpractice case in which, once again, the defendant won a trial court victory, by getting an entire case struck on micro form over structure. Thankfully, the Court of Special Appeals rescued this one.

A certificate of merit before a medical malpractice lawsuit in Maryland allows a certificate from someone of a different specialty than the defendant. But the statute requires, as it should that it be signed by someone from the same “or related” specialty.

maryland court opinion

New Maryland Intermediate Court Opinion

Let’s run through the facts real quick. Man goes to the emergency department complaining of blood in his urine. The hospital performs a urinalysis, which reveals blood and protein in the plaintiff’s urine. Afterward, the plaintiff gets antibiotics for a urinary tract infection (“UTI”) and sent home. Around two months later, the plaintiff revisits the emergency department with the same complaint. This time, however, he also complains of fever, a sore throat, and right flank pain. The plaintiff is examined by a physician’s assistant, who discusses the plaintiff’s condition with the defendant urologist over the phone. The plaintiff is sent home again with more antibiotics for treating a UTI. He is never evaluated in person by an actual physician. Nearly two years later, the plaintiff returns to the emergency department, this time complaining of spitting up blood. Tests reveal that his kidneys were no longer functioning. A renal biopsy shows that he has severe irreversible kidney disease. Continue reading

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A Baltimore County Circuit Court judge ruled last week that Baltimore County’s contract with its speed camera vendor is illegal, because it allows the contractor to get a cut of every ticket generated. Although Judge Susan M. Souder’s ruling dismissed only a single ticket, this decision is believed to be the first time a judge has ruled against the legality of this so-called “bounty system” practice.

maryland speed camerasHere, Baltimore County’s contractor, ACS Xerox, received a whopping $19 from every $40 ticket. As you might imagine, the bounty system has raised many objections because it incentivizes contractors to maximize the number of tickets issued, which can lead to mistakenly generated tickets. In one instance, a motorist was cited for traveling 57 mph in a 25 mph zone although the driver was sitting still.

Maryland law, however, specifically seeks to eliminate profit incentives by banning bounty systems. Transportation Article § 21-810(j)(2) of the Maryland Annotated Code states, “If a contractor operates a speed monitoring system on behalf of a local jurisdiction, the contractor’s fee may not be contingent on the number of citations issued or paid.” However, this restriction is effectively nullified as long as contracts avoid using the term “operate.” The Office of the Attorney General even provided an advisory letter in 2008 instructing Montgomery County to change the wording of its contract to specify that the county, rather than the contractor, operated the speed cameras, thus skirting the restriction.

The present case is not the only lawsuit that has been introduced. The bounty system previously ignited a legal clash in 2008 when ticket recipients sued Montgomery County and several municipalities in the county. The Maryland Court of Appeals, however, ruled that the plaintiffs did not have the power to sue under the law, but did not decide whether governments can pay contractors a contingency fee based on the number of tickets generated by the speed cameras. Continue reading

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In mass tort cases, plaintiffs’ lawyers love MDLs. The hope for many lawyers who have mass tort cases is that they can sign up the client, let the MDL steering committee (a selected group of lawyers that take the lead on the cases) do the heavy lifting, and then join into the larger settlement. This is true when you have an enormous volume of cases that are settling for a small- or mid-sized amount of money. Because working these cases up individually is hard work with a limited payoff.hip replacement lawsuit

The plaintiffs’ lawyers instinctive love of MDLs dies quickly when they have a substantial case that they want to push forward as opposed to waiting for the sometimes torpid MDL to move forward. This is true when you have an outlier case that you think has great value than other cases.

This takes us to Davis v. Biomet Orthopedics. Biomet is one of the manufacturers of the much-maligned metal-on-metal hip implants. These hip implants have two components made of metal. When the patient’s leg moves, the metal parts grind away at each other. This causes metal bits to shave off and to fall into the surrounding tissue, and sometimes into the patient’s bloodstream. The plaintiff, in this case, alleges that she was harmed by a defective prosthetic Biomet hip implant.
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Last week, the Maryland Court of Special Appeals upheld a small verdict in a truck accident case. The issue was the exclusion evidence of the defendant fleeing the scene after a car accident, even though plaintiffs put on a good case that the act of fleeing itself caused the plaintiff’s injury. I understand the logic of the holding and understand how the court found as it did. But I disagree with the ruling.

Here are the facts is Alban v. Fiels. The plaindefendant bad behavior evidencetiffs, a married couple in their 70s, were injured when their truck collided with another truck in Baltimore County. After the accident, the defendant briefly returned to the scene and then fled. Witnesses said that the defendant laughed as he drove off. That sounds so crazy, I know. But that is what the opinion said. I’m picturing Jack Nicholson in his Joker prime.

The insurance defense lawyers wisely did not dispute liability. The case went to trial for compensatory damages. The trial court granted the female plaintiff $5,000 in non-economic damages and $5,000 to the couple for their joint claim of loss of consortium. The entire award was $10,000 plus costs. I don’t know what the underlying medical and injuries were, but if you are getting a $10,000 verdict in a jury trial, things didn’t go well.

The plaintiffs’ appeal was based on the inability to get in the “fleeing the scene” evidence. Their attorney argued that it was an error to exclude the testimony of accident witnesses and the plaintiff’s psychologist because emotional damages were part of the original complaint. Plaintiff said that her PTSD stemmed from the moments after the accident when the defendant returned to the scene. She testified that she feared they would be killed while they were trapped in the vehicle. Plaintiff said that she has had ongoing anxiety problems and has suffered from prolonged bouts of crying and sleeplessness since the accident. Plaintiff’s physician testified that she was permanently disabled with post-traumatic anxiety.

This is a good test case for admitting this evidence. Often plaintiffs’ accident lawyers just want to get this kind of evidence in order to inflame the jury to hate – appropriately – the defendant. Here, the plaintiffs at least arguably were really hurt by defendant fleeing the scene and it really – at least allegedly, is hard to read these things and know – caused harm. We have plaintiffs in their seventies… it is not a stretch by any means. The trial court stuck to the usual playbook and excluded evidence of the defendant’s post-accident conduct because of its prejudicial nature. Continue reading

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