I’ve written a good bit about use plaintiffs’ in Maryland wrongful death cases and the hornets’ nest that lawyers can find themselves in when they do not have all the potential wrongful death beneficiaries reading off the same sheet of music before filing suit.
The Maryland Court of Appeals has rewritten the rules when filing wrongful death claims involving notice to use plaintiffs that give attorneys a clearer path. It also addresses adult children’s claims for solatium damages.
Louisiana’s Court of Appeals last month issued an unpublished opinion in Rando v. Furr, a case that dealt with the ins-and-outs of uninsured motorist coverage and bad faith claims. Here’s what happened:
A man was driving his motorcycle and was involved in an awful collision with a pickup truck driven by the defendant. He briefly survived, before tragically succumbing to his injuries. The man and his motorcycle were insured through his wife’s insurance—when she originally got the >insurance through Progressive about seven years earlier, she waived uninsured/underinsured motorist coverage. Progressive paid Louisiana’s equivalent of PIP to the tune of $2,500, then said that they had no more exposure.
The deceased man’s wife (and later child) filed a wrongful death claim against the negligent driver and his insurance company (our friend State Farm), and Progressive. For whatever reason, Progressive quickly decided that there was UM/UIM coverage in the amount of $50,000/$100,000. They tendered an offer of the full $50,000.00, plus reasonable interest. The plaintiffs demanded the full $100,000, but Progressive (correctly) noted that only $50,000 applied because the wife and child’s claims were derivative of the decedent’s claim.
The plaintiffs included a bad faith claim against Progressive, alleging that it refused to make a timely and unconditional tender of the UM limits, and that claim went to trial after all the claims against the negligent driver and State Farm had resolved. The trial was apparently a short affair, and there was not much evidence presented. The judge dismissed the bad faith claim, holding that the plaintiffs failed to testify about the cause of the accident, the amount of the State Farm policy, and the amount of damages.
The case is consistent with how Maryland courts would view the same issue. To make an uninsured or underinsured claim, it is important to show that some other person or company was responsible for the accident and that they have either no insurance or insufficient insurance coverage. The whole point of uninsured/underinsured coverage is that a driver’s insurance will pay them if they can’t recover from another source. The plaintiffs proved no such thing to the judge. In fact, they probably received some money from State Farm—that case was settled on the courthouse steps. Continue reading
U.S. District of Judge Richard D. Bennett issued an opinion Monday in Robertson v. Iuliano, an informed consent medical malpractice lawsuit against a neurosurgeon and St. Agnes Hospital.
New Opinion on Apparent Agency and Informed Consent Law in Maryland
The first question you might have is how this malpractice case ended up in federal court instead of Baltimore City Circuit Court, where the claim was filed? Good question, my dear reader. Only a crazy plaintiffs’ med mal lawyer would file in federal court over Baltimore City because Baltimore is just a much better venue.
So what gives? Apparently, after committing an alleged tort in Baltimore City, the doctor moved to Virginia. It seems odd – in fact, crazy – to me that a defendant who commits a tort in Maryland could avail themselves of removal by moving away after the fact. But, in an earlier opinion, the court opined that the plain meaning of the removal statute mandated federal jurisdiction. It is a silly law, but it is the law.
Anyway, I know little about the underlying facts. But the case sounds weak to me. The plaintiff claims he would not have undergone back surgery to repair a disc at L4-L5. He suffered from moving a dryer for a customer while working at Lowe’s Home Improvement had he known that he might get an infection from the surgery.
St. Agnes and Neurosurgery Services, LLC and St. Agnes Healthcare, Inc. were also sued. Still, the court ruled in their favor and found that they could not be held liable for Dr. Iuliano’s actions because they were not responsible for ensuring their doctors adequately informed their patients of the risk and because there was no actual or apparent agency. The court dismissed the informed consent argument because Maryland law is clear that the duty to obtain informed consent is the doctor’s job. There is no duty to the patient from the hospital unless they “specifically assumed the duty.” I’m not sure why this would be the law. But it is.
Before the trial, Robertson filed a motion to amend his complaint to clarify that the lack of informed consent included the failure to disclose alternative forms of treatment. He also wanted to increase the amount stated in his complaint. However, the court has denied his motion to amend the complaint.
Why? According to the Federal Rules of Civil Procedure, an amendment to a pleading should only be denied if it would cause prejudice to the opposing party, there was bad faith on the part of the person making the amendment, or if the amendment would be considered futile. The U.S. Court of Appeals for the Fourth Circuit has interpreted this rule to mean that amendments should be freely allowed as long as justice requires it.
The court agrees with this but says there are limits. The judge underscored that the deadline to amend the pleadings had already passed and that to be approved, the amendment must satisfy both the “good cause” standard and the standard set by Rule 15(a)(2) of the Rules of Civil Procedure. The court found that Robertson did not satisfy the “good cause” standard and determined that the amendment would be prejudicial to the doctor. The court concluded that allowing the amendment on the eve of a trial would be unfair to the doctor because discovery has been conducted concerning informing the plaintiff of alternative treatment methods. The amendment would essentially add a new claim to the complaint. So that makes sense.
Anyone who can blithely throw together a joint tortfeasor release in a malpractice or another complicated tort claim without reading the case law 10 times is an absolute expert on these releases or suffers from an extreme case of irrational confidence. Usually, in my experience, it is the latter.
The job of the Maryland appellate courts in dealing with this unavoidably complicated maze is to give Maryland attorneys clear and concise rules in navigating the path. Given a chance to do this in Mercy Medical Center v. Julian, the court took what I think – and more important the dissent thought – is a different path that might lead to more confusion or, maybe better put, lack of trust that the settling parties know the ramification of the settlement. If I’m right about this, it will have a chilling effect on parties settling in a case with multiple defendants.
This case involved a lawsuit alleging that medical malpractice caused cerebral palsy and the ultimate death of a child. Just awful. (I wanted to throw up a picture with this post but I could not think of one even remotely appropriate.) Plaintiffs and Mercy Hospital settled out before trial. The release – called in Maryland a “Swigert Release” – with Mercy provided for a pro-rata reduction of any judgment against doctor defendant if Mercy was found to be a joint tortfeasor.
Before trial, the doctor’s attorney sought and received the production of the release with Mercy. The doctor did not cross-claim, third-party, or otherwise, make any effort to have a determination made whether Mercy was liable. The jury hit the doctor with an $8,000,000 verdict, reduced to just under $2.2 million by the cap on non-economic damages.
So who pays what? Shockingly, a disagreement ensued so everyone sued everyone again. The doctor sued Mercy for contribution. The plaintiffs – who just want their money – sue the doctor again, asking the court to rule that he is not entitled to contribution. The doctor, seeking a declaration that he was not entitled to contribution. The Maryland Court of Special Appeals lessened this train wreck a little by appropriately merging the two actions. Continue reading
Everyone has their soapbox issues where they maintain the rest of the world is crazy and sanity would be restored if everyone would just listen to us. I have mine; you have yours. Usually, at least for me, few others are paying attention and the world continues to be the world.
One of these issues for me is ad damnum clauses. Here is what happens time and time again: (1) a personal injury lawyer in Maryland file lawsuits and meaninglessly ask for a zillion dollars,(2) the Baltimore Sun and the Maryland Daily Record dutifully report the amount sought as though it actually matters, (3) the people of Maryland roll their eyes about a civil justice system that has run amok, (4) these people become jurors one day and walk in with said eyes still rolled.
The problem is two-fold. First, attorneys sometimes file for ridiculous amounts to draw attention to ourselves. Yes, that is a self-inflicted wound, but it does not lessen the pain for the rest of us.
But the other problem is that we have a duty to our client not to, you know, commit legal malpractice. I have long maintained that it is malpractice not to ask in the ad damnum clause for more than your client could conceivably recover because if you score with the jury more than you expected and you go over the ad damnum clause; you have two problems. First, the judge might refuse your motion to amend the complaint to comport with the verdict. But the even bigger problem is that you have loaded the gun for the plaintiff’s remitter motion. “They didn’t even ask for this much,” they will surely whine in the motion.
I’ve buried the lead to this story. Sorry. The good news is that under new Maryland Rule 2-305 that will be effective in January, plaintiffs’ lawyers are no longer even allowed – as I read the rule – to state a specific amount if the damages sought exceeded $75,000. Instead, the complaint should include the general statement that the amount the plaintiff seeks is more than $75,000. Continue reading
Liens Against your Case
Medicaid is tough to deal with when they have a subrogation lien against your case. With some wonderful exceptions, they are often inflexible about reducing your clients’ lien, which is to say that they won’t unless the lien is greater than 50% of the net recovery to the client after attorney’s fees. But since you don’t know who will handle your request, you really have no idea how it will play out.
New and easier rules might be on tap for reducing Medicaid liens in Maryland. The Maryland Register has posted new regulations that would allow for the following:
The issue of pre-impact fright is a big deal in wrongful death car accident cases in Maryland.
Why? Well, in non-malpractice cases we have a cap on wrongful death claims and a cap on survival actions. In Maryland – I know some states have it reversed – the survival action is the victim’s loss: his medical bills and pain and suffering damages. It is the only claim in the victim’s own right for the wrong done to them. Under this law, if you shoot a guy in the back of the head without him seeing you coming, there is no survival action. Like the cap itself, this is a dumb law. (Fill in here your own rant about how misguided the cap is. I’ve done it here many times before, but the subject is inexhaustible.)
This matters because juries are not stupid. They want to compensate the victim in their own right and, accordingly, tend to inflate the value of pre-fright impact to make up for the fact that the law foolishly ignores the victim. My partner tried a case once where the jury awarded $3 million for a pre-impact fright when the victim uttered an expletive before he died (the driver lived and testified at trial).
Anyway, trying to blunt some stupidity of this law, the Maryland Court of Appeals in Benyon v. Montgomery Cablevision in 1998 told us you can recover in a survival action for mental anguish when you see what turns out to be your death coming. The court found that in survival actions where a decedent has “great fear and apprehension of imminent death before the fatal physical impact, the decedent’s estate may recover for such emotional distress and mental anguish as are capable of objective determination.”
The problem with pre-impact fright is it is wrought with evidentiary challenges. What did the dead guy think before he died? But the Maryland courts have shown some flexibility on this, in this case and, more recently, in concluding that a boy who drowned suffered although there was no evidence of this other than the correct application of common sense.
Regrettably, South Carolina went in another direction last week, ruling that there was no evidence to support a conscious pain and suffering claim in a fatal automobile accident case.
There are two issues that the parties addressed in their briefs. First, how much proof do you need to show to prove conscious pain and suffering (which Maryland addressed in the drowning case I just mentioned) and this question of pre-impact fright. The court largely dodges the issue because this case was not well plead – the plaintiff’s lawyer did not even bring a survival action although – adding to the complexity – they settled with other defendants on a survival action that was never pled). Instead, the court refuses to get down in the weeds of the facts of this case and punts on what South Carolina should do.
How boring for us. So let’s look at the defendant’s argument in the case.
In South Carolina, the cause of action for physical injury survives, even if the injured person does not, and the established law of South Carolina recognizes pain and suffering as damages in such a survival action, but the law requires that it be proven and that it be consciously suffered. Camp v. Petroleum Carrier Corp., 204 S.C. 133, 28 S.E.2d 683 (1944). Speculation is not allowed. In Camp, the evidence considered by the Supreme Court was that a man was heard groaning from within a car before he died of injuries sustained in the wreck. There was no evidence, however, that he was “conscious of pain and suffering.”
What? You had a guy who gets in an accident. Before he dies, he is groaning. Now, which is the more likely scenario: he was suffering, or he was not suffering? Let’s get Nate Silver or someone to poll people about which one is more likely. I bet 90% say it is more likely that he suffered before he died. Underscoring its credibility, the defendant also signs off on- get this – that evidence that a shooting victim crawled away leaving eight-foot trail of blood and clutched leaves and pine needles to his chest wound do not rise to proof of conscious pain and suffering. I kid you not. Continue reading
U.S. District Court Judge William M. Nickerson remanded an asbestos case back to Baltimore City Circuit Court, rejecting defendant’s efforts to remove the case to federal court because the defendant had joined non-diverse defendants.
The case is one of many asbestos cases on the docket in Baltimore City. Plaintiff alleges her mesothelioma was caused by exposure to asbestos from Colgate’s 
talcum powder. In answers to interrogatories, plaintiff identified Colgate’s Cashmere Bouquet talcum powder as the sole source of her asbestos exposure. In her June 2012 deposition, Barlow testified that she did not believe she suffered any other exposures.
There is a one-year limit on removal unless the court finds that the plaintiff has acted in bad faith to prevent a defendant from removing the action. Colgate tried to push the “unless” part of that rule, claiming the joinder was fraudulent.
Today, I will break down the election from every conceivable angle and offer my opinions on how America chose and why.
Wait, don’t go anywhere. I’m kidding. I’d rather eat my own kidneys then talk about politics for another second. Let’s get back to developments in Maryland law.
The Maryland Court of Appeals issued an opinion in two consolidated cases against WMATA last week in the Tinsley and Hodges cases (full opinion here). Basically, an agreement (the WMATA Compact) ratified by Congress in the 1960s created an entity to run a mass transit system in and around the District of Columbia. No one argues that the Washington Metropolitan Area Transit Authority was a terrible idea. Having a system that crosses state lines is key for the Washington metropolitan area.
But tragically, lawmakers made life for WMATA more pleasant by giving them a free ride most times to negligent caused injuries and deaths without taking responsibility. Using the states’ ability to prevent lawsuits against themselves, they made the WMATA a “pass-through,” keeping those rights as held by D.C., Maryland, and Virginia. These governments waive that immunity on a criminally small level, allowing some handcuffed lawsuits against them. (Tragically. Criminally. I’m using incendiary language this morning in honor of the fallen election season.)
Anyway, for the WMATA agreement, it was decided that injured people could not sue WMATA for exercising governmental functions; it was also decided that people could sue WMATA for proprietary functions (like the average car or bus accident). Courts use a test to decide whether any action is governmental or proprietary, based on whether the action involves discretion or choice “grounded in social, economic, and political policy.” Continue reading
According to reports submitted to the U.S FDA, in the past year, Monster Energy Drinks has been linked to the deaths of five people. Each of the five people, and a sixth person in 2009, were reported to have consumed Monster drinks prior to their death. According to the FDA, no conclusions are drawn until an investigation is completed, making these mere allegations.
The parents of a 14-year-old girl, who died after consuming two Monster drinks, have named Monster Beverage Corp in a lawsuit filed last week in California. The suit alleges that the drinks led to caffeine toxicity, causing cardiac arrhythmia, and resulted in the girl’s death.
Monster is the largest U.S. energy drink maker by sales volume and claims that over the past sixteen years, they have sold over 8 billion energy drinks worldwide, which have been safely consumed. Monster claims to be unaware of any fatality anywhere that has been caused by its drinks, which includes not being responsible for the death of the 14-year-old girl.
