Maryland Injury Law Center

July 9, 2012

Defective Stryker Metal-on-Metal Hip Implant Recall

Finally, Stryker Recalls Defective Hip Implants

In a somewhat tight-lipped press release and website page, Stryker Orthopaedics notes that it is voluntarily recalling two components of its metal-on-metal hip implant devices. The hip implant recall, according to Stryker, is based on post-market surveillance, which means that there have been a lot of complaints and problems with the devices.

Interestingly, Stryker’s recall is qualified by its statement that “The incidence of complications associated with modular-neck stems is extremely low.” Stryker makes a neat bit of history here by admitting its hip implants are a train wreck while defending the product to the hilt. Kids, don’t try this at home.

Anyway, the recalled hip implants include Stryker’s Rejuvenate and ABG II modular-neck stems. These are devices used to help the surgeons correct for anatomical abnormalities, by customizing the implant to the patient. Problems with the devices include corrosion, which can cause inflammation in the body with symptoms of pain and swelling. The original press release for the Rejuvenate hip implant stated that “Laboratory testing demonstrates the compatibility of these materials without concern for fretting and corrosion.”
Regardless of whether patients are experiencing pain or other symptoms, they should contact their orthopedic surgeons to determine whether revision surgery is necessary, or whether the surgeon recommends monitoring of the implant. It’s not a bad idea to contact a lawyer. Medical device lawsuits have strict deadlines and failing to file a lawsuit within a short amount of time means that a lawsuit might not be allowed. For many patients, the clock may tick with this notice of recall.

Stryker set up a website for patients affected by the recall. Not much information there. Shocker. Continue reading

July 2, 2012

New Expert Opinion Maryland Court of Special Appeals Opinion

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals issued an opinion on Friday in Dixon v. Ford Motor Co., reversing a plaintiffs’ asbestos verdict.

Update on This Case: The Maryland high court reversed!

As is the case in asbestos cases involving a wrongful death and mesothelioma cancer, the verdict was large. The jury awarded $15 million in damages to the plaintiffs, which the court reduced to $6,065,000, pursuant to Maryland’s non-economic damages cap. Defendants filed post-trial motions requesting a new trial and revisions or judgments notwithstanding the verdict. The trial judge – retired Judge Carol E. Smith – shot down those claims, but ruled that the jury’s verdict was inconsistent and revised the judgments against two of the defendants to account for a joint tortfeasor release to a little over $3 million. Both the plaintiff and one of the defendants – Ford, a company I otherwise like except that it always seems to stick their chest out in litigation, at least in Maryland – appealed.

Raise your hand if you got a little lost there. Me too. Basically what happened is the plaintiffs settled out with three defendants, but the settlement agreements did not determine whether the defendants were joint tortfeasors, and so they remained in the case nominally as Ford’s cross-defendants. So you have the surreal world of defendants at trial that are not represented by a lawyer. None of this really matters, ultimately, because the Court of Special Appeals reverses the verdict, making academic all the joint tortfeasor issues.

June 27, 2012

Novel Liability Theory in Car Accident Claim Rejected by Maryland Court of Appeals

by Ronald V. Miller, Jr.

The Maryland Court of Appeals delivered its opinion in Barclay vs. Briscoe v. Ports America, a car accident case where the plaintiff was seriously injured by a man who had just finished a twenty-two hour shift at a job at the Port of Baltimore.

Liability was not at issue here, meaning everything proceeded on damages. But the driver had a limited insurance policy that would not fairly compensate the victim for his injuries. So a creative plaintiffs’ lawyer argued that it is a jury question whether the driver’s employer is responsible because the employer had set the table for the car accident by overworking the driver and letting him drive home.

This argument is novel. But it is held together by more than just duct tape and the magic of defense lawyers’ laughter: it makes some sense that a reasonable jury could find that the employer knew that its fatigued employees posed foreseeable harm to themselves and other motorists when they drove home from work.

When you are trying to make new law, dig around to find something somewhere that seems on point. Plaintiff’s lawyer found a great case in Timbuktu Oregon that seemed on point. In Faverty v. McDonald’s Restaurants of Oregon, Inc., 892 P.2d 703 (Or. App. 1995), a high school student who worked three shirts for a McDonald’s restaurant in a 24-hour period. Driving his car home, the boy fell asleep and hit someone head-on, killing the boy and seriously injuring another driver.

Pretty much sounds like the same set of facts, right? The Court of Appeals of Oregon found McDonald’s had a duty to avoid conduct that unreasonably creates the foreseeable risk of harm to others, and that a jury could reasonably find that the employer should have foreseen that the boy would become so exhausted or fatigued after working three shifts in one 24-hour period. Continue reading

June 26, 2012

$55 Million Cerebral Palsy Verdict

by Ronald V. Miller, Jr.

One of the largest malpractice verdicts in Maryland history was handed down yesterday by a Baltimore City jury that awarded $55 million in a cerebral palsy medical malpractice case. The actual award will be reduced by Maryland’s medical malpractice cap to less than $30 million. Hopkins is expected to appeal. I’m not sure of the grounds, but in a complicated birth injury case, there are always potential issues.

Plaintiff’s lawyer said after the verdict that the parents are “relieved that they’re going to have the economic resources to take care of their child, not only for their own natural lives but for their child’s.” This is the big fear of almost any parent in a birth injury case. When I/we die, who will take care of my child? It must be one of the worst fears imaginable.

2013 Update: This verdict was reversed. This case settled before it was re-tried.

June 25, 2012

State Farm’s Issue Preclusion Argument Wins and Loses on Appeal

by Ronald V. Miller, Jr.

The perils of handling an accident claim that implicates law outside of the lawyer’s home state was underscored once again in the Maryland Court of Special Appeals opinion this month, in Bryan v. State Farm.

A family – Mom, Dad, and two kids – were injured in a car accident with another vehicle in New York City. Plaintiffs, both the driver and passenger of that vehicle, sued Dad. The trial was bifurcated and tried on liability only in New York. Plaintiffs won. The next day, the parties put the settlement on the record of $15,000 per plaintiff.

The family then brought a phantom vehicle uninsured motorist case in Montgomery County, Maryland. State Farm, the uninsured motorist insurer, sought and received summary judgment on the family’s claim, arguing that collateral estoppel prevents the family from re-litigating the issue of liability.

The first thing that strikes me here is that State Farm is relying on the defense of the plaintiffs in New York – or its failure to mount an effective defense – as the basis for its claim. State Farm had other options. Most obviously, it could have settled the case, avoiding the collateral estoppel problem. State Farm also could have attempted to stay the litigation pending the case in Baltimore (induce the underlying plaintiffs to dismiss their claim without prejudice). Something. Anything.

State Farm also could have played it straight with their insured and not raised this defense in the first place, because they knew that the Maryland accident lawyer who brought the claim apparently failed to note that New York’s comparative negligence law – presumably the controlling law in the case – would allow for some negligence by the Dad.

Do I think State Farm threw the New York case or has some obligation to do the plaintiffs’ lawyer’s job for them? Even the Oliver Stone in me doubts it. But if they wanted to do right by their insured, they would have allowed them to have their day in court. Remember, this was a first-party case filed by their own insured. But State Farm’s paradigm is clear: an all-out war on personal injury plaintiffs. (Half of the State Farm adjusters who read that last line think I am dead wrong; the other half are shaking their fist with pride.) Continue reading

June 14, 2012

New University of Baltimore Law Dean

by Ronald V. Miller, Jr.

The University of Baltimore School of Law has a new dean. Ronald Weich, former Assistant Attorney General for Legislative Affairs at the Department of Justice, will take the helm at UB.

I discuss now Dean Weich and the other candidates for the top spot at UB law school here. He was my original second choice who was later ( via sour grapes ) upgraded to my first choice.

He’s the one on the left.

June 12, 2012

Maryland Court Defines “Related Specialty” Under the Maryland Health Care Malpractice Act

by Ronald V. Miller, Jr.

Under Maryland law, when a defendant doctor is board-certified in a medical specialty, the plaintiff’s expert testifying to the breach of the standard of care must be board-certified in the same or a “related specialty.” Plaintiff’s medical error attorneys in Maryland have had a lot of sleepless nights over the definition of “related specialty.”

In DeMuth v. Strong, a new opinion decided by the Maryland Court of Special Appeals last week, the plaintiff had a $1.68 million verdict resting in balance of what made up a related specialty under Maryland medical malpractice law. In this Cecil County malpractice case, the plaintiff sued and called as his expert witness a board-certified vascular surgeon, who testified that an orthopedic surgeon breached the standard of care.

Plaintiff’s attorney had a qualified orthopedic expert testify, but wanted to let his causation expert also provide his opinion, probably because it was a strong opinion and maybe because it seems a little odd to the jury when a causation expert does not give his thoughts on damages. But the plaintiff’s malpractice counsel was risking having the case overturned on appeal if the appellate courts did not agree. Continue reading

June 7, 2012

Judge Paul Grimm Confirmed by Judiciary Committee

by Ronald V. Miller, Jr.

The U.S. Senate Judiciary Committee recommended today that the full Senate vote to confirm Chief U.S. Magistrate Judge Paul Grimm to the federal bench.

We had a chance to put him on the Maryland Court of Appeals we let slip away. Judge Grimm will make a great addition to the federal bench, but I don’t know that Marylanders will benefit. As a magistrate judge, he is already presiding over trials and doing many of the things that district court judges do. I would have preferred to see Judge Grimm on the Maryland Court of Appeals helping interpret and make new Maryland law. I’m still mad that Governor O’Malley never made that happen. Because I spend a lot more time in state court than federal court.

2014 Postscript

June 6, 2012

Defense Verdict in Tragic Drowning Death Affirmed

by Ronald V. Miller, Jr.

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