Maryland Injury Law Center

October 26, 2012

Can a Jury Make Up Their Own Theory of Negligence?

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

October 17, 2012

Spoliation of Evidence in the Real World

by Ronald V. Miller, Jr.

Last Friday, a federal judge in Washington D.C. issued an opinion on whether to impose discovery sanctions on Marriott that I think is an instruction for personal injury lawyers dealing with defendants that destroy evidence.

In Mahaffey v. Marriott, plaintiff’s lawsuit alleged that while exiting an elevator in a motorized scooter, the elevator violently lurched, throwing him off the scooter, causing the scooter to land on top of him, resulting in serious injury. (No, I can’t picture it either.)

I’m assuming the injuries are serious. He appears to have hired a Florida lawyer who retained local counsel here. Usually, people are not going through that effort unless they have an actual case, although some of the facts I’m about to get to will make you question just how badly the plaintiff was injured.

So the plaintiff’s attorney puts Marriott on notice of the claim. The letter was sent by certified mail. Lawyer gets back a green card, the whole nine yards. (Spoiler alert: The court says, incredibly to me, that “Marriott maintains that it has no evidence that it received the demand letter leaving open the possibility that it received an empty envelope.” Wow. The court backs off this later in the opinion. But a judge saying that I might have sent an empty envelope by certified mail is the very reason I live a paranoid life. And it lets you know the plaintiff will lose) The letter sets forth the name of the plaintiff and the date of the accident. It did not – and I can’t tell you why – tell Marriott the name of the hotel involved in the accident. Continue reading

October 16, 2012

Defective Steroids Cause Meningitis in Maryland

by Ronald V. Miller, Jr.

The Centers for Disease Control and Prevention (CDC) has warned about an outbreak of fungal meningitis that affects several states, including Maryland. Meningitis is a serious and potentially fatal infection near the brain and spinal cord that can cause brain damage or death. Anyone at risk should get to the hospital immediately for evaluation.

There is a huge buzz out there for potential cases. The Maryland Daily Record just wrote an article this morning about how lawyers are racing to these cases. Every lawyer with a website and/or a budget to run commercials is talking about these cases. Some information is very good and helpful to other attorneys and potential victims. Some of it is just liberally borrowed from another website that copied off of someone else. Some lawyers definitely know how to put the copy in copycat.

Anyway, this blog post tries to lay out the issue both for lawyers who many have potential cases and for potential victims looking for real information on these cases. Continue reading

October 15, 2012

New Appellate Opinion on “Relates Back” in a Lap Chole Case

by Ronald V. Miller, Jr.

The Georgia Court of Appeals issued an opinion last Thursday on an interesting issue in a wrongful death malpractice claim that we see all too frequently: botched laparoscopic gallbladder surgery.

Quick facts in this classic malpractice case. Defendant performs a lap chole procedure on a man. The man returns to the hospital the next day with an infection. ER calls treating surgeon/defendant who does not go to the hospital to personally examine the man. Instead, he just says “I’ll see you in three days at your scheduled appointment.” (I’m guessing plaintiff will make hay of this arguably benign fact at trial because it has real reptile jury appeal.) Two days later, the man collapses at this home and dies.

The wife/plaintiff files a wrongful death action The autopsy showed his death was from an acute bacterial infection caused by thermal burns in the area where Jensen had performed the lap chole procedure. Continue reading

October 11, 2012

Are Witness Statements Discoverable? New Appellate Opinion

by Ronald V. Miller, Jr.

Instead of discussing various torts that could be committed against Raul Ibañez, a man I will now irrationally detest for the rest of my adult life, let’s talk today about witness statements and whether they are discoverable. There was an interesting opinion in a California wrongful death case this summer, that I’ve been meaning to blog about for a while now, about whether recorded statements are discoverable.

This case – Coito v. California – comes to us on facts are beyond tragic. A 13-year-old boy drowned in the Tuolumne River in Modesto, California. His mother filed a wrongful death lawsuit against several defendants, including the State of California.

There were six witnesses, all boys with the young boy who died. There was lots of talk in the air that all were committing crimes. Obviously, the defendants found this of interest. Defendants could get recorded statements from some of the kids. When the kids were deposed, the defendants used the recorded statement to hold one of the kid’s feet to the fire on their prior statements.

But, being defendants, they did not want to turn over the recorded statements to the plaintiff, citing the work product privilege. Motions ensued. The trial court denied the plaintiff’s motion to get the statements but ordered defendants to produce the recording used at the deposition. Continue reading

October 9, 2012

Dollar for Dollar Comp Setoff in Uninsured Motorist Cases

by Ronald V. Miller, Jr.

We often handle car and truck accident cases for victims who were working at the time of the crash. (I guess a motorcycle accident claim could also be while the employee is on the job – but I have never had or seen that case.)

In these types of cases, workers comp claims a lien on its payout and you have to work with them to get them to reduce their lien. A hassle, but usually not a much larger challenge then working with the health insurer to reduce its lien.

But this Field of Lien Reduction Dreams falls apart when you have an uninsured motorist claim and a workers’ compensation case. In Maryland (Insurance Article, § 19-513e) and many other states, when an insured files a lawsuit against the uninsured or underinsured motorist carrier, the insurance company can file a counterclaim against the victim to reduce the amount of the claim by the amount of money that the insurance company claims that the insured owes to it. Practically, this means a dollar for dollar set-off of the amount paid by worker’s compensation. The theory behind this is that setoffs lead to double recovery by the victims.

This is dumb and I’m not the first person to notice it. Maryland Court of Special Appeals Judge, Judge Timothy E. Meredith argues – in a dissent – that it is an unreasonable windfall for the car insurance company to get the benefit of the workers’ compensation lien and, really, calling it a double recovery misses the whole point of modern UM coverage in the first place – to place the victim in the spot she would have been in if the at-fault driver had the same coverage she did. A minority of states agree with Judge Meredith and do not allow for these dollar-for-dollar reductions. Continue reading

October 5, 2012

Why Our Recent Appellate Win Is Important to Maryland Auto Accident Attorneys

by Ronald V. Miller, Jr.

As I mentioned last week, I’m pretty excited about our law firm’s win in Buckley v. Brethren Mutual. I think this is an important case for two reasons. First, it shows that the Maryland Court of Special Appeals respects the actual intent of Maryland’s statutory scheme for uninsured motorist claims.

But this case also tells us something about Brethern Insurance Company. You don’t see them a ton in Maryland accident cases. And I’ve actually always liked the company. They have been easy to deal with in the past. But what we learned from this case is that Brethern will not stand by their own insureds. Because Brethern played an awful trick on its own insured in this case, a trick that GEICO, Allstate, State Farm, etc. never would have pulled. You understand the gravity of this, right? They are worse than those guys. If you have to take a brief walk around the block to let marinate the magnitude of this, feel free. Continue reading

October 3, 2012

What Is the Cost of a Mass Tort Lead?

by Ronald V. Miller, Jr.

I get so many emails from so many marketing companies. Just today I got an offer to write a guest post on this blog (no), an email telling me I rank poorly in Salisbury, Maryland on the search engines (he’s wrong), and two more random emails from companies telling me they are the best in the world at getting me to the top of the search engines (unlikely since, you know, you are spamming me).

But I found one of these emails interesting. This one was from New York City and it offered to provide leads for Actos, Yaz, Yazmin, and Ocella cases. These emails are always flying in, but this one provided the prices for the leads:

Actos: $450