Maryland Injury Law Center

December 11, 2012

Joint Tortfeasor Releases in Maryland: Legal Headaches

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

November 29, 2012

New Ad Damnum Law in Maryland (with 2020 update)

by Ronald V. Miller, Jr.

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

November 26, 2012

New Rules for Medicaid Liens in Maryland

by Ronald V. Miller, Jr.

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:

November 12, 2012

Pre-Impact Fright: Why It Matters So Much

by Ronald V. Miller, Jr.

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

November 8, 2012

Fraudulent Joinder Argument Shot Down in Federal Court in Mesothelioma Case

by Ronald V. Miller, Jr.

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.

November 7, 2012

The WMATA Can Do Whatever It Wants to You: Maryland Law Is That It Is Open Season on Passengers

by Ronald V. Miller, Jr.

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

October 26, 2012

Monster Energy Drinks: Cited in Death Reports

by Ronald V. Miller, Jr.

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.

October 26, 2012

Can a Jury Make Up Their Own Theory of Negligence?

by Ronald V. Miller, Jr.

There is an interesting medical malpractice case on appeal in Ohio – Longbottom v. Mercy Hospital – that I thought deserved a quick blog post today. The case poses some interesting questions on how far outside the box of the case a jury can go in making inferences that were not directly raised by the parties.

The facts are awful, and it pains me to write them out. A nine-year-old boy suffered a head injury at his home. He went to the emergency room. The doctors there checked him out but did not give him a CT scan even though, you know, it is nine-year-old boy with potentially a serious head injury. He went home and went to sleep. The boy woke up in the middle of the night, throwing up and gasping for air. He suffered brain damage and now walks with a limp because of a blood clot.

The big issue was whether the decision not to order a CT scan was a breach of the standard of care. Simple malpractice case, really. The plaintiffs’ experts did not offer opinion testimony whether the doctor had properly instructed the parents on monitoring the child or that such a failure was the proximate cause of the injuries.

But here is the thing: juries do the craziest things. Again, the plaintiffs tried the case on the sole theory that the ER doctor should have ordered a CT scan during the emergency room visit. The jury rejected this argument but substituted its own new theory that the ER doctor failed to instruct the plaintiffs about head injuries. The jury awarded plaintiffs $2.7 million. Continue reading

October 24, 2012

Why Serious Injury Cases are Hard to Settle Without Filing Suit

by Ronald V. Miller, Jr.

Serious personal injury cases, where pain and suffering damages are high but less than the cap on non-economic damages, are the hardest claims to value and the hardest cases to settle without suing. Almost invariably in these cases, I’m telling my clients that the case’s value is likely to be higher after suing than the insurance company’s best pre-suit offer. The facts bear this out. I would estimate that our clients do well suing in 98% of the cases we file.

Why is that? On one level, there is a greater ability to generate comparables – “comps” to use the lingo” – in personal injury cases than there is in accessing, say, the value of real estate, where you have few comps because you are limited by tight geographical locations. I mean there have been about five zillion herniated disc cases with a laminectomy and fusion at C4-C5 where the client had no prior injury or degeneration. Why isn’t there just a well-established value for that? Continue reading

October 17, 2012

Judge’s Communications with Jurors: New Maryland High Court Opinion

by Ronald V. Miller, Jr.

I rarely write about criminal cases because I find criminal cases uniquely depressing and because they rarely relate to what we, as personal injury lawyers, are doing. Venus and Mars. I have no idea how to handle a criminal law case and criminal lawyers have no idea how to handle a personal injury case. Yet, annoyingly, criminal lawyers think they do, which is why I’m constantly getting calls from potential clients complaining that a mostly criminal lawyer is screwing up their accident claim. (Did I just say that in my out-loud voice? Sorry.)

But this Maryland Court of Appeals case decided last week – Maryland v. Thomas – addresses two issues that are of interest to all trial lawyers: (1) what to do with jurors who – for good reasons and bad don’t want to be on the jury, and (2) under what conditions do appellate issues arise from juror communications to third parties – notably, in this case, with the court.

The defendant, in this case, was convicted of second-degree depraved-heart murder after a stabbing outside of a Baltimore County night club. I forget exactly what “depraved-heart” means, but it does not sound good. The Court of Special Appeals reversed the defendant’s conviction, finding that while the evidence was sufficient for the jury to convict, the trial court committed prejudicial error when it failed to promptly notify the attorneys of communication between the trial judge’s secretary and one of the jurors. Apparently, the juror called the secretary, and he wanted to get the prosecutor’s home number to ask her out. The judge thought this was no big deal.

Okay, I’m making that up. That would be over-the-top. This problem was far more nuanced. After the juror at issue was chosen, the juror told the judge and the lawyers that his grandmother is 89 years old and is expected to die any minute. The juror also clarified that he just had to be at the funeral if there was one and otherwise fully intended to serve.

The juror’s grandmother dies. Baltimore County Circuit Court Judge Michael Finifter reveals a note from the juror requesting off the jury to help prepare for his grandmother’s funeral. The judge also advises counsel that the judge’s secretary had been contacted by a member of the juror’s family to tell him about the death of his grandmother. The juror apparently said, without the lawyers present or notified of the issue, that he could continue. These conversations took place before the alternates were discharged. After this, the juror changed his mind, and once again requested to be excused.

Now the court is in a box and the defense attorney is mad that he was not made aware of the discussions with the juror. The judge refused the juror’s request to be excused. The defense lawyer – who probably saw the conviction coming – sought a mistrial which the judge denied. Continue reading