Maryland Injury Law Center

June 6, 2012

Defense Verdict in Tragic Drowning Death Affirmed

Most personal injury appellate opinions involve a high level of human suffering. If you stopped and connected with every opinion that involved human suffering, you would spend all day looking into the abyss. Every wrongful death case is awful. But this appellate opinion last week from Indiana just has unbelievably depressing facts.

Tragic Facts of Androusky v. Walter

A woman asks the defendant, her boyfriend’s stepfather, if she and her children – ages 3 and 4 – can stay with him. He says no. But while he is away; she has a pool party at his house. He comes home and says what you think he would say: “Get out.” She asks if she can stay until the morning after breakfast. Defendant reluctantly agrees.

Defendant goes to work in the morning. Defendant’s stepson lets the boys play outside around 10:30. Mom was still asleep. She wakes up, sees the kids playing outside, and goes back into the house, leaving them to play by the pool. The woman comes back to find her son, but can’t locate him. They look everywhere until it finally occurs to them he might be in the pool. The boy is at the bottom of the pool. He was taken off life support the day after the incident when it was determined that he was brain dead.

It is easy to be judgmental of other parents. You try to fight the compelling urge to judge because you can’t put yourself in anyone else’s situation. Walk a mile in their moccasins and all of that. But I don’t have any energy to fight that judgmental feeling on this one. Continue reading

June 4, 2012

Let Me Talk to the Adjuster’s Supervisor

by Ronald V. Miller, Jr.

If you cannot make progress with an insurance adjuster, and the problem is something other than the valuation of the case, I’d ask to speak to the adjuster’s supervisor. (If the problem is the valuation of the case, whining about the offer is useless. File suit. Get on with it.) I settled a relatively minor car accident case with USAA yesterday. We thought it might be a larger case but the client, thankfully, had a great recovery. We sent USAA a demand package. After a great deal of nonsense, and a lot of phone calls to the adjuster that went unanswered, we got an offer four months later that did not include the client’s lost wages.

I assume every insurance adjuster I don’t meet looks like this guy, right down to the expression.

The initial offer was awful, but I’m not even mad about that. After squaring away the medical/health insurance liens and talking to the client, I made a counteroffer by voice mail. No response. I kept calling. Finally, I get this whining adjuster on the phone who blamed all of his problems on someone or something else and inexplicably began every sentence with, “Well [long pregnant pause], let’s just say….” Finally, the adjuster tells me he is going to “drop everything” and get right on getting us a counteroffer on a case that he had ostensibly already evaluated. He also agrees the lost wages should be included. He never calls back. I called him that night and left a message. A few days go by and I call and try to get his supervisor. Another USAA adjuster – a very nice woman – intercedes and makes me a counteroffer. I get a counter demand from my client and call back again. Same deal. No response. I call the adjuster’s supervisor and, after sitting on hold for 5 minutes (I have a timer on my phone), she picks up. Now, the supervisor knows if you are asking to speak to her, you are the typical jerk personal injury lawyer who is only complaining about the amount of the offer. This is not a rebuttable presumption type of assumption by the supervisor. It is set in granite. (This happened last time I tried to get USAA to admit that the collateral source rule has been in effect in Maryland for the last 113 years). Ignoring this iceberg in my path, I turn the boat north and speed up, trying like crazy to lay the sweetness extra thick to refute the supervisor adjuster’s assumption that I am John Edwards’ even more evil twin. I brilliantly praise other USAA adjusters that she knows to establish my “I’m not crazy” bona fides. Continue reading

May 30, 2012

New Maryland Res Ipsa Opinion

by Ronald V. Miller, Jr.

The U.S. District Court for Maryland issued an opinion this week denying summary judgment in Gilliespie v. Ruby Tuesday, a res ipsa premises liability case.

Case Facts

The facts are simple. Plaintiff went to a Ruby Tuesday in Aberdeen, Maryland, for lunch. Before the plaintiff and her friends were seated, a waiter stood on a chair and adjusted the lamp hanging above the plaintiff’s table. A half-hour later, the lamp came crashing down on the plaintiff.

How much would you bet that the waiter caused that lamp to fall? I wouldn’t bet my house, but I would definitely be willing to bet an amount that I would hate to lose.

But maybe you are less impulsive than I am and instead of making a quick bet, you would rather have more information. What would you want to know? The first thing on your list I’m sure would be what an inspection of the light fixture showed, right? Well, Ruby Tuesday “attempted to preserve the shade after the incident” but lost the lamp in the “ordinary course of business.” With your best efforts, you can’t keep a lamp that fell on someone’s head? It gives you a warm and fuzzy feeling about “We tried to keep dangerous toxins out of your food, but we let some slip into your cajun jambalaya pasta in the ordinary course of business.” Either way, the parties made a federal case out of it. Continue reading

May 23, 2012

Will Strict Liability For Pit Bulls Cost Maryland $174 Million?

by Ronald V. Miller, Jr.

Will strict liability for pit bulls in Maryland cost the state $30 million in state and local tax revenue and cut back rental incomes to the tune of $144 million? Hard to believe. But these folks have numbers to make their argument. If these estimates are even half right, it would be a powerful example of the law of unintended consequences.

Are Pit bulls Really an Issue?

Pit bulls certainly have their defenders. I am one of them. But there are the top 5 breeds that make up most of these claims:

May 23, 2012

Dr. Louis Halikman and Mercy Hospital

by Ronald V. Miller, Jr.

Dr. Louis Halikman is an orthopedic doctor that many insurance companies in Maryland – most notably State Farm – frequently used to defend car accident cases. “Frequently” is probably charitable; by his own admission, he makes somewhere between $30,000 and $35,000 a month providing expert services for insurance companies.

Am I a big fan of Dr. Halikman? No, not that I don’t think he is a good doctor. He’s a smart man with good credentials, which is why insurance companies are lined up at his door. Being well paid by one side or the other does not mean the doctor is in bed with that party. But it is my opinion that he either has a philosophical anti-plaintiff animus or, more likely, his opinions are colored because insurance companies have paid for his services on the level they have for the last 25 years.

In my last trial with him, last summer, he claimed that our client was as injured as badly as she was because she was overweight, putting more force on her ankle when she fell. It was such a meanspirited and cheap shot. He also claimed she would have healed faster if she had gotten bariatric surgery to take-off weight. He didn’t give much concern to the mortality risks of the procedure that he wanted to impose on our client. (The jury saw it for what it was and awarded over a half a million dollars.) Continue reading

May 21, 2012

Dog Bite Lawsuit Statistics

by Ronald V. Miller, Jr.

I have recently received a good bit of heated interest in my last two posts (here and here) on the Maryland Court of Appeals opinion in Tracey v. Solesky, in which the court held that in dog bite cases involving a pit bull or cross-bred pit bull mix, plaintiff no longer needs to prove that the dog in particular, or pit bulls, in general, are dangerous.

There is no question that dog bite claims make up their fair share of serious personal injury claims. Here are some statistics:

The insurance industry pays more than $1 billion in dog-bite claims each year. State Farm, the insurance company in Solesky, paid more than $109 million on about 3,800 dog bite claims nationwide in 2011. In 2010, State Farm had approximately 3,500 claims and $90 million in payouts.
The Insurance Information Institute estimated that nearly $479 million in dog bite claims were paid by all insurance companies in 2011, spokeswoman Loretta Worters said. In 2010, it was $413 million.
The CDC says that dogs bite approximately 4.7 million people each year. Over half of the victims are children. Most of these bites are not serious. But approximately 800,000 people seek medical attention for the bites each year. Sixteen people a year die from dog bites. It has to be said: most of these are from pit bulls. Still, at least 25 different breeds of dogs have been involved in the last 238 dog-bite-related fatalities in the U.S.
Approximately 92% of fatal dog attacks involved male dogs, 94% of which were not neutered.
The median (not average) dog bite verdict in Maryland over the last 23 years is $24,600.
At particular risk for dog bites are (1) children ages 5 to 9 years old, (2) seniors, and (3) postmen. Children are the biggest risk. Kids are 900 times more likely to be attacked than a letter carrier.
State Farm’s average cost per dog bite nationally in 2011 was $28,799.
Approximately one-fourth of dog bite claims are like Solesky in that they involve unrestrained dogs off of their owners’ property. I think these are the dog bite injuries that most concern the public.

Dog Bite Statistics Update

According to the Insurance Information Institute, homeowner insurers paid $797 million in dog bite and other dog-related injury claims.
According to the Triple-I, there were 17,802 dog bite claims in 2019. This is a 2.9 increase from 2018.
The average cost per dog bite claim in 2019 was $44,760. This was 14.7 percent higher than in 2018, which was $39,017.
Between 2003 and 2019, the average cost per claim increased by 134 percent. This was because of increases in medical costs, settlement sizes, judgments, and jury verdicts.
According to a 2019 study, the highest reported breed for dog bites is “unknown.” It is followed by pit bulls, mixed breeds, German shepherds, terriers, and rottweilers.
Forty-eight dog bite fatalities occurred in 2019. About 70 percent of them involved pit bulls.
In 2019, 27 percent of dog bite fatality victims were children 9 and under, 6 percent were between ages 10 and 18, and 67 percent were adults 19 years and older.
Over 63 percent of fatal dog bites in 2019 involved more than one dog.
About 27,000 dog bite victims underwent reconstructive surgery in 2018.

May 18, 2012

Same Sex Marriage Recognized By Maryland High Court

by Ronald V. Miller, Jr.

This blog post is an exception to the usual “personal injury related only” rule on this blog. The Maryland Court of Appeals (Maryland’s “supreme court”) ruled unanimously today that Maryland must recognize as married same-sex couples who legally wed in other states.

A married same-sex couple from California sought a divorce here in Maryland. Prince George’s County Judge A. Michael Chapdelaine denied the divorce petition because the marriage was “not valid” and “contrary to the public policy of Maryland.” Continue reading

May 15, 2012

Malpractice Statistics: New Study

by Ronald V. Miller, Jr.

Runaway juries are a big problem in medical malpractice cases. Juries see a sympathetic plaintiff and, unchecked by reason, they write oversized checks. Liberal judges aid and abet the crime.

This belief has taken deep root in Maryland – and in most states – that has led to the enactment of scores of laws to impede medical malpractice lawsuits. Most notable of these restrictions has been medical malpractice caps. Maryland had an onerous cap that became even more Draconian. Why? Because the Maryland State Medical Society’s (MedChi) very skillfully orchestrated what almost everyone now agrees was a faux crisis.

Trial lawyers have been outsmarted at every turn by doctors and other tort reform proponents. These advocacy groups have smartly turned the focus away from hard facts and have ironically used the quintessential trial lawyer weapons, antidotes, and imagery. Pictures of doctors on highways walking out of the state because of high malpractice premiums. A story about a cute little Doc Hollywood like a country doctor who had to close his practice because of frivolous malpractice suits. They have, repeatedly, won. Their lobbyists and PR people have done a great job. Continue reading

May 10, 2012

Jury Notes: New Maryland Opinion

by Ronald V. Miller, Jr.

The Maryland Court of Appeals issued its opinion in Nicolas v. State, a Montgomery County criminal case.

The primary issue on appeal dealt with double jeopardy, merger of offenses, and a bunch of other stuff I have long forgotten about since law school. But the case also raised on appeal a rather novel issue regarding juror notes.

I love juror notes. You spend days trying to read invisible juror tea leaves and then get actual tea leaves of what the jurors are thinking. Yet these are illusory tea leaves. My favorite story was when the jury came back with a single question: “May we see the Plaintiff’s damages board again?” Continue reading

May 8, 2012

Progressive Insurance = File Suit

by Ronald V. Miller, Jr.

We sent Progressive Insurance a demand letter in a case where the client had some pretty serious injuries, including 50 staples in her head to close a scalp laceration. Progressive faxed us a letter stating it cannot conclude its investigation until we obtain different bills from the medical providers that are on certain health claim forms, because Progressive wants the individual CPT codes for every visit. CPT codes are numbers assigned to every task or service a doctor may provide to a patient.

Are CPT codes necessary for Progressive Insurance to determine whether medical care rendered was fair, reasonable, necessary, and causally related to the car accident? I think the best way to frame the question is to ask whether a jury can render a verdict without CPT codes. The answer, of course, in that I have never in my life heard testimony that included CPT codes at trial.