Maryland Injury Law Center

April 3, 2013

Baltimore Lead Paint Verdict Reversed

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.

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

April 1, 2013

$1.1 Million Malpractice Verdict Against GBMC Reinstated

by Ronald V. Miller, Jr.

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.

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

March 25, 2013

New Maryland Appellate Decision: Lead Paint

by Ronald V. Miller, Jr.

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.

March 18, 2013

New “Related Specialty” Maryland Malpractice Opinion

by Ronald V. Miller, Jr.

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.

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

March 11, 2013

Speed Cameras in Baltimore County Take a Hit

by Ronald V. Miller, Jr.

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.

Here, 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

March 7, 2013

Maryland Hip Replacement Lawsuit Federal Court Opinion

by Ronald V. Miller, Jr.

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.

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.
Continue reading

March 6, 2013

Trying to Get Defendant’s Bad Behavior Into Evidence

by Ronald V. Miller, Jr.

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 plaintiffs, 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

March 5, 2013

Premises Liability Verdict Statistics

by Ronald V. Miller, Jr.

Jury Verdict Research has some interesting statistics on verdicts on money damages awarded at trial in premises liability claims.

Also included in the report is a look at median awards in different types of premises liability cases. So, at least theoretically, we have on average the same injuries but different defendants. The median award for premises liability claims against owners/operators of industrial property was the highest at $250,000. The median awards for other premises liability cases, according to the studies, were: $125,000 against recreational facilities; $114,726 against government property; $95,883 against service establishments; $75,000 against residential property owners; and $82,500 against retail stores.

I’m probably overstating the case. Owners of industrial property are far more likely to be mixing with dangerous activities, I’m sure. Still, the differences in the data are striking. Juries definitely consider who their plaintiffs and defendants are and that invariably gets factored into the verdict. It shouldn’t. But juries are human beings.

March 5, 2013

Medtronic Infuse Bone Graft Lawsuit Update

by Ronald V. Miller, Jr.

We have the technology to essentially create bone. Just extremely cool. Drug and medical device companies come up with some unbelievable stuff that have really changed the world. Most of these companies are doing great work. Admittedly, I just focus on the negative. But it is worth nothing that most of these companies have changed the world and decreased human suffering. That is a great thing.

But…. there is a but. Bone grafts, as cool as they are, have to be done right, or the cure will be worse than the original problem. Medtronic is a company that, in my opinion, has a history of taking shortcuts that hurt patients. Most prolifically in recent years was the way they botched their defibrillator leads. The cases would have been worth billions but the Supreme Court completely bailed them out with an awful preemption ruling. Continue reading

March 4, 2013

Verdict for Railroad Worker in Baltimore City Affirmed

by Ronald V. Miller, Jr.

The Court of Appeals of Maryland decided a negligence case, CSX Transportation, Inc. v. Pitts last Thursday. This blog post goes deep into issues that are related to the Federal Employers Liability Act (“FELA”). Looking back on it, I probably would not have spent this much time on it because I don’t think FELA is a hot topic to most of you and you may not want to get deep in the weeds of this case. But if you are handling FELA cases, this is obviously a must read.

The plaintiff filed suit in Baltimore City under FELA, alleging that the defendant railroad company was negligent in using large ballast instead of small ballast on the tracks. (Ballast is just crushed rock. Large ballast is used to support railroad tracks, while small ballast is used for walking surfaces.) The plaintiff, who had worked for the defendant for 40 years, claimed that walking on the large ballast caused him to develop severe osteoarthritis in both knees. Over the long course of his employment, the plaintiff walked anywhere from half a mile to six miles a day on the job as a conductor, brakeman, fireman, hostler, or engineer. The plaintiff first felt knee pain in 2003 when he was in his early 50s, but he did not see a doctor until 2007. The plaintiff discovered then that he had osteoarthritis and subsequently sued for recovery. Plaintiff sued and received a $1,779,000 verdict from a Baltimore City jury. Continue reading