Maryland Injury Law Center

January 24, 2013

Subway Footlong Lawsuit

Are they really going to settle these Subway foot-long lawsuits?

Subway just got hit with a lawsuit alleging that its Footlong subs are not actually a foot long. Plaintiffs who ate what is probably an 11-inch sub, are seeking money damages for their injuries. The case was filed in New Jersey.

I stick close to personal injury related issues here. So why am I writing about a frivolous lawsuit claiming that a Footlong sub is not a foot long? Because I think it is related. Lawsuits like this – and celebrities that sue for every slight – really sends a message to people, who later become jurors, that the judicial system is rarely a place for serious justice.

So when an injured plaintiff begins a trial, she does not begin on the 50-yard line. She starts deep in her own territory. That’s not an impossible mission for a worthy plaintiff by any stretch – people flip quickly when they learn facts. But it makes the hill a tougher climb and it can change the way they value personal injury cases.

Subway says the word “footlong” should not be taken literally, as it is a trademark and “not intended to be a measurement of length.” But they are misleading people. They misled me. I thought it was a foot long till I read this story. But consumers who think like me have two reasonable choices: (1) decide not to buy the Subway subs because they are mad at the false advertising, or (2) remain annoyed but say, “Hey, Subway is not perfect, I don’t think many big companies are, but I think make a good sandwich and I am going to eat it.” (I pick the latter. Subway makes a good low fat sandwich, albeit with a ridiculous amount of sodium.).

January 14, 2013

Advice on Negotiating Car Accident Claims with Each Insurance Company

by Ronald V. Miller, Jr.

Negotiating with Insurance Companies

I’m a big fan of science. I would think there would be one best way to approach a personal injury case. But I’m always amazed at how trial lawyers with such unbelievably different approaches and styles can be successful. But it is not just trial lawyers. If you look at the best of the best among politicians, musicians, actors, athletes, mathematicians, you name it; they are all different and approach their craft differently, albeit with some common threads.

The same is true with insurance companies. They all have the same general idea: take in lots of money in premiums and pay out as little money as in claims. For example, State Farm and GEICO have unbelievably different business models for running their business… including their approach to handling personal injury car accident claims. Obviously, both companies are making money hand over fist. But there is not one correct business model when trying to reduce the amount of money you will pay out in claims. You need to know the model you are facing to figure best our how to maximize the value of the claim. All roads lead to this Rome: you need to devise the tactics to get as much money for the claim as you can whether it is a $50,000 claim or a $5 million claim.

One of my jobs here is to discuss strategy with our lawyers on the cases they are handling in litigation. It is one of my favorite parts of the job. I’m providing strategy and tactical advice without having to do the heavy lifting. Whether it is an accident or a medical malpractice case, one of my first questions is, “Who is the insurance company?” (and “What are the policy limits?). Because you have to have some idea of who you are dealing with in trying to settle or even when you know you will try the case.

State Farm and Nationwide, for example, could have different approaches to personal injury cases. At Nationwide, a verdict that exceeds the policy limits by a $1 is a federal case. Alarms go off, file audits are conducted, and the world gets turned upside down. At State Farm, they call a day like this Tuesday. It is just an ordinary thing that happens. This is a critical thing that you need to know when you are going into settlement negotiations.

Where to Find Detailed Analysis of the Insurance Company You are Facing

Below, I have analyzed the insurance companies/adjusting companies we deal with in 97% of the motor vehicle accident cases we handle. You can find it here. Jump on the first link at the top and locate the insurance company you are dealing with on your claim or just look for the box that lists the major insurers at the top of the page.

January 11, 2013

I Hate the Collateral Source Rule Today

by Ronald V. Miller, Jr.

An opinion in the U.S. District Court of Maryland last week began like this:

This case is rooted in a hunting trip in South Africa, during which Dennis Danner, Alexander Danner, and Michael Coletta, plaintiffs, each killed a “trophy quality” male lion. The lion skins and skulls (the “Lion Trophy” or “Lion Trophies,” or “Cargo”) were shipped to the United States for tanning and taxidermy, but at some point were lost in transit. The Cargo was found several months later at a warehouse in Vancouver, Canada. By that time, two of the Lion Trophies had suffered irreparable damage, allegedly due to exposure to moisture and bacteria.

Oh, my. The plaintiff’s hunting trip with his son cost $250,000. He sued the freight companies for nearly $100,000 because not bringing home these dead lions just ruined all the fun.

January 10, 2013

Supreme Court Looks at Medicaid Liens

by Ronald V. Miller, Jr.

Trying to successfully resolve clients’ medical liens has to be one of the toughest challenges facing personal injury lawyers in large cases. I have had many cases where the case’s hardest part was not getting the settlement or verdict’ but getting the medical liens resolved. It also can be most frustrating because while defense lawyers take a lot of crazy positions in our cases, the threat of an eventual trial usually allows logic and reason to surface. In dealing with medical lien holders, logic and reason and even their own economic interest are rarely prominent players in the mix.

We share most of these frustrations only among plaintiffs’ lawyers and their clients while the rest of the world worries about their own problems. This is why I have enjoyed watching the U.S. Supreme Court wrestle with these issues in Delia v. E.M.A.

At the center of this tragedy sits an oblivious twelve-year-old girl who lives – peacefully, I pray – in Taylorsville, North Carolina. Because of medical malpractice during delivery by a doctor who had a history of drug abuse, and surrendered his North Carolina medical license, she has severe mental retardation and suffers from a seizure disorder. She is deaf, blind, unable to sit, walk, crawl, or talk.

[Brief intermission: You know, I’m writing about this case because these lien issues impact many people. This matters to people who are suffering and really deserve justice, which is money damages in our judicial system. And I can’t tell you how often I drive by the most horrific facts in a case, digging for some teachable point on the collateral source rule, without giving it much thought. I like myself 15% less than I otherwise would because of this, but what choice do we have? Become immersed in every case that we read and put ourselves in the shoes of everyone suffering? But, this one today just gets me and I’m finding myself imagining being in the shoes of every single person in this tragedy.]

The case settled for $2.8 million. The settlement agreement did not – because it really can’t – allocate separate amounts for past medical expenses and pain and suffering and other damages. North Carolina’s Medicaid claimed its one-third lien. The law allows the state to take the lesser of either the total lien or one-third of the court-ordered malpractice payment.

The one-third rule has a real upside: it is easy. Bright-line rules are always that way. But as the Supreme Court told us in Arkansas Dept of Health & Human Serus. v. Ahlborn, pure bright-line justice is not always acceptable and the sum allocable to medical expenses must be determined by some reasonable process before the state can recover on its claim. The 4th Circuit agreed, overturning the North Carolina law because North Carolina statute’s one-third cap on the state’s recovery against a Medicaid recipient’s settlement proceeds did not satisfy Ahlborn because there was no showing that the settlement proceeds should compensate the plaintiff for that amount of the medical claims. The case was remanded to the trial court for an “evidentiary hearing” at which the district court would figure out how much DHHS should get. Continue reading

January 7, 2013

Physician Risk Management: Is a Doctor’s Purpose Just to Avoid Malpractice Lawsuits?

by Ronald V. Miller, Jr.

Every now and again I read a publication called “Physician Risk Management.” Billed as a publication to help doctors minimize liability and protect them from lawsuits, it is a well-written publication written by people who do seem to know what they are talking about.

Here is why I don’t like it. It is just not self-conscious enough about its own motives. An example comes from this month’s article “Defend non-compliance with guidelines in the chart.” The article begins by repeating the title. The next sentence is, “The plaintiff’s attorney will use it against you.”

This is all fine and good. Doctors sometimes should deviate from clinical guidelines, and they should explain why they did not conform to them. And, yes, plaintiffs’ medical malpractice attorneys will shove it down their throat if they do not document their deviation and the basis for it.

Fair enough. But could they at least mention in a footnote that what they are faking the doctor to do is also 100% consistent with what you are supposed to do to, you know, properly care for a patient? Isn’t one of the key purposes of medical records in the first place to determine upon the course of care and provide a rationale for that care to both document the treatment and explain the care to future doctors treating the patient?

The article quotes a neonatologist, Dr. Jonathan M. Fanaroff, who is both a physician and a lawyer, to make the point. “It is important to show both your clinical reasoning and also that there was an adequate reason to deviate from the guideline.” (Note to my four children: if you can get a gig as a neonatologist, don’t dampen my joy by becoming a lawyer, too. Please.)

No kidding, really. In fact, as I started reading the article, I thought maybe the doctor was being quoted out of context talking about excellent patient care. But then the doctor describes a Mississippi case from 2006, Vede v. Delta Regional Medical Center 933 So.2d 310 (Miss. Ct. App. 2006), that ostensibly proves this point.

This was a case where the plaintiff developed a decubitus ulcer – a bedsore – allegedly as the result of a hospital’s negligent failure to turn the plaintiff at regular intervals, which the standard of care requires in preventing a bedsore. But the doctors at the hospital had a good reason for failing to turn the patient: they found that he was struggling with airway clearance and were afraid of a fluid volume deficit and an infection from the turning based on the patient’s specific case.

This is such a straw man. We all agree these could all be excellent reasons in a particular case to turn the patient less frequently (although, geez, I wonder about informed consent on a call like that). We can all also agree that writing it down makes it seem less like you are making excuses in hindsight for negligent care if you spell out what you are doing. But couldn’t the article – albeit short – point out that this weapon to fight off medical malpractice lawsuits is not the endgame, but just a fortunate byproduct of properly caring for and treating patients. Continue reading

January 6, 2013

The Limits of Texting Accident Lawsuits

by Ronald V. Miller, Jr.

Click to enlarge

The 4th U.S. Circuit Court of Appeals on Thursday affirmed a summary judgment ruling dismissing a trucking dispatching system manufacturer from a personal injury accident lawsuit. The court ruled that the company could not be responsible for a crash allegedly caused by a texting driver.

Interesting facts are presented in this case. Plaintiffs’ lawsuit arose from a truck crash on Route 40 in North Carolina. The defendant driver in his loaded tractor-trailer rear-ended several cars in front of him. Rear-end truck accidents are probably the least likely to cause a death. Tragically, this was a relatively rare exception. One of the plaintiffs’ infant children was killed.

January 2, 2013

Where the Million Dollar Verdicts Are

by Ronald V. Miller, Jr.

Jury Verdict Research has some interesting data on which injures comprised the largest proportion of cases in which juries or courts awarded the victim over $1 million. Here is the category followed by its relative percentage of million-dollar verdicts:

Death – 28%
Brain Damage – 14%
Leg Injuries – 6%
Spinal Nerve Injuries – 6%
Disc Damage – 5%
Emotional Distress – 5%
Paralysis – 4%
Arm Injuries – 2%
Cancer – 2%
Foot Injuries – 2%
Sexual Assault – 2%
Vertebra Injuries – 2%
Other Injuries – 22%

Did you see any major surprises here? I didn’t except for seeing leg injuries with 50% more million-dollar verdicts than paralysis injuries. Thankfully, I think this might be most because of the fact that paralysis is, relatively, a rare injury in a car accident.

Where are the million-dollar verdicts geographically? The Southwest – composed of Arizona, California (which I suspect did a lot of the heavy lifting to push these numbers), Colorado, Hawaii, New Mexico, Nevada, and Utah – has the highest percentage of million-dollar verdicts with 19%. The Northwest – with Alaska (which has high awards actually), Idaho, Montana, Oregon, Washington, and Wyoming has the lowest percentage of million-dollar verdicts at 7%. No shock there, either.

December 26, 2012

Plaintiffs Forum Shop and Lose Entire Case: New Maryland Court of Special Appeals Opinion

by Ronald V. Miller, Jr.

On Christmas Eve, the Maryland Court of Special Appeals issued a treatise of an opinion written by retired Judge Charles E. Moylan in Antar v. Eagan. I will not give you a complete analysis because it is Christmas, but this case is worth talking about for Maryland personal injury attorneys. It highlights the perils of filing suit where there are two possible jurisdictions. The plaintiffs got a raw deal in this case, although I think they probably could have avoided the problem with more careful treading. Whether Maryland law truly reflects the court’s holding here is something for the Maryland Court of Appeals to decide.

Plaintiff sued Defendant in Pennsylvania, although they had jurisdiction in Baltimore City. Why leave Baltimore City, a jurisdiction that the anti-lawsuit folks tell us is “Easy Street” for Maryland plaintiffs? Well, this was a fire insurance case where the plaintiff alleged first-party bad faith. Maryland’s first-party bad faith law is of a joke, so they went to Philadelphia (which is considered more favorable than Baltimore for plaintiffs anyway).

The Philadelphia County court dismissed the case for forum non-conveniens with leave to refile their lawsuit in Maryland. The plaintiffs instead appealed and lost. Then they came back to Maryland and sued. Defendant won (again), this time on the statute of limitations.

December 20, 2012

Finally, I’m on Board: Allstate is Awful

by Ronald V. Miller, Jr.

I just hung up with an Allstate adjuster. At-fault carrier (Safeco) put up 50,000 so we turn to the UM carrier for the additional $50,000. She offers $2,500 on top of the $50,000. She said something to the effect of, “There is only $50,000 left so what incentive do we have to offer that anyway?” When I reminded her of the fact that she just committed an offense that the Maryland Insurance Commission would fine Allstate for, she quickly backed down.

I’ve defended Allstate in the past, arguing that they are comparatively not as bad as everyone says. I’ve made flowery, loving statements like, “in spite of Allstate’s reputation, our Maryland accident lawyers [geez, that’s a painful use of keywords to pander to Google, I have to fix that] do not see Allstate as the most difficult car insurance company to deal with in Maryland.” I even said once that I thought GEICO was worse.

I take all of that back.

Realizing I was getting nowhere, I said, “Look, there is not a lot of money at stake, why don’t we just agree to arbitration.” She categorically dismissed the idea. Why? The Oliver Stone in me thinks it is because they want the client to spend money on experts and preparing the case, in part to induce settlement, but in part out of spite. Keep in mind, this is their own policyholder.

December 19, 2012

Source: Miller & Zois Thinks Baltimore Is a Hellhole

by Ronald V. Miller, Jr.

The much-anticipated list of judicial hellholes is out. Baltimore made the list once again.

The write up on Baltimore begins with the notion that for evidence that Baltimore is a judicial hellhole, well just ask Miller & Zois.

Baltimore has been described as an up-and-coming Judicial Hellhole for years, but don’t just take our word for it. Plaintiffs’ firms, such as Miller & Zois, advertise Baltimore as “a favorable jurisdiction for plaintiffs’ injury lawyers.”

Is Miller & Zois calling the city a jurisdiction “favorable” for plaintiffs’ attorneys tantamount to prove that Baltimore is a “judicial hellhole” for defendants? If so, I really need to adjust my expectations.

But that is just the start. This report prefers rhetoric to exactitude at every turn and reads like a college term paper that was turned in at that last minute. It complains “Judge Glenn” – retired Judge Glynn – is rigging the asbestos docket. How? The report does not exactly say. It implies it is by consolidating the cases. Yes, the asbestos cases in Baltimore are consolidated. Baltimore joins a zillion other jurisdictions that have done the same thing. Why? The cases are consolidated on causation, not product identification or damages. This is not a class-action lawsuit. The cases are consolidated on damages because it is simple to prove. If you got mesothelioma you either got it from asbestos or you were a vermiculite miner. Call me crazy, I’m willing to let the court figure this out for scheduling purposes.

This is how this report reads from top to bottom. The entire premise of this beat down of Baltimore is just filled with unsupported innuendo. The impression left is that asbestos cases being filed in the city are because of forum shopping, Plaintiffs’ attorneys looking to get to these juries. But the auto plants, shipyards and steel mills, and many other defendants (Locke Insulators, for example) are located in Baltimore. That’s not forum shopping, it is suing where the harm occurred.

The downright fictions and convenient distortions continue. Baltimore juries are not “notoriously biased against business defendants.” They cite no evidence. The report really focuses on asbestos cases. Yeah, Baltimore juries are mad at asbestos defendants. So is pretty much every jury under the sun that has evaluated the evidence. Continue reading