Maryland Injury Law Center

May 4, 2012

Defense Expert Preaches About Defensive Medicine: Appellate Court Orders New Trial

The Connecticut Supreme Court ordered a new trial this week in a medical malpractice case for an interesting reason: the defense expert testified at trial that malpractice lawsuits drive up health care costs by forcing doctors to practice defensive medicine.

The big issue in the case was whether appropriate standard of care required the defendant doctor to order additional radiological tests, such as X-rays, a CT scan, or an MRI, prior to performing the surgery on a young boy to determine whether his tumor had grown since it was first detected. At trial, the defendants’ medical expert testified that ‘‘the standard of care did not require additional radiology tests.” So, this is hardly a case where the doctor is being accused of practicing defensive medicine. But the doctor felt compelled to point out on direct that he would have ordered them himself if he was treating the plaintiff. Gee, doc, why?

Well, a few reasons. One, I am with residents, fellows, and medical students all the time. So, we are ordering a lot of tests on everything so they have the opportunity to read them. And you could say, oh, that’s wasteful, but that is part of being at a teaching institution. One. It is for teaching purposes as much as anything, for they have one more chance to look at just one more—they have another dot in their exposure.

Wait, how many times have I heard about how you should not subject patients – not for nothing, a young boy in this case – to unnecessary radiological testing because it exposes the patient to risk (and the annoyance and hassle of the testing itself)? Yet that risk is of no consequence if, you know, we can show those young whippersnappers and extra MRI. Continue reading

May 3, 2012

New Uninsured Bill Becomes Law

by Ronald V. Miller, Jr.

The Governor signed yesterday a bill that allows auto insurance companies in cases where the at-fault driver has insufficient insurance coverage to consent to settlements against the at-fault driver without (1) limiting their right to raise any issue relating to liability or damages in an action against the insurer; and (2) admitting as to any issue raised in an action against the insurer.

The Maryland General Assembly made history with the bill: nobody is mad. Insurance companies are ecstatic and trial lawyers are indifferent.

You can read about the genesis of this bill here.

May 3, 2012

Our Attorneys’ Fees: 33.3%/40%

by Ronald V. Miller, Jr.

Personal injury lawyers hate talking about their contingency fee agreements with their clients. Me too. But it is an interesting and important topic and one of great importance to people who are seriously injured and will hire an attorney. This post explains how our law firm operates and gives a few thoughts on contingency fee agreements in personal injury cases.

Our contingency fee agreement with our clients in every personal injury case is exactly the same. Our firm gets one-third of the recovery if the case settles before a lawsuit is filed. If a lawsuit is filed, or there is an agreement to arbitrate the case, our fee increases to 40%. We have fronted all client expenses in every case we have handled in the last 10 years. If we are not willing to put up our own money, we would not be willing to take the case.

This is our agreement for every single personal injury case in our office. We have turned down at least two cases (that I know of: I’m sure there have been more) that have culminated in a seven-figure recovery because we did not agree to reduce our contingency fee.

Before I explain why we do it this way, let me go the other way and set forth the argument about why we shouldn’t have a set fee for all of our clients. Contingency fees in personal injury cases are designed to a large measure to compensate attorneys for the risk in time and money they must incur. So, theoretically, in a world of perfect information, calibrate the contingency fee with the risk/reward and set the attorneys’ fees accordingly. Continue reading

May 3, 2012

Johnson & Johnson/DePuy Hip Implant Recalls: Lawsuit Update

by Ronald V. Miller, Jr.

Patients with DePuy ASR hip implants, recalled in 2010, are making their way to trial. DePuy is a subsidiary of Johnson & Johnson, and they are defendants in a type of class action known as multidistrict litigation (MDL). There are over 6,000 lawsuits, about 4,000 in a federal Ohio court, and another 2,000 spread out in various state courts. There were over 93,000 hip implants recalled. August, 2013 update: we have won one and lost of one of these cases.

The hip implants were recalled because they are metal-on-metal implants, and doctors are finding out that the grinding of the metal joints causes metal debris to get loose, harm tissue, and enter the bloodstream. The hip implants are failing at a higher rate than other types of implants.

Not all the cases will go to trial—in the federal case, Judge Katz and the parties are selecting a few model cases to go to trial early. Those model cases are known as bellwether cases, and they are intended to be a springboard for settlement of the rest of the cases. The theory is, by having a few representative trials, the parties get a better idea of what a jury will do with these cases, and they can make informed decisions about whether to settle and for how much. The federal trial will probably be set for early next year.

In the meantime, there are some earlier trial dates set in state courts. The first trial is set for Las Vegas in December, and another trial is set here in Prince George’s County, Maryland in January 2013. Continue reading

May 2, 2012

State Farm Family Use Exclusion: A New CSA Opinion

by Ronald V. Miller, Jr.

State Farm recorded another win in a family use exclusion case this week in the Maryland Court of Special Appeals, in Stickley v. State Farm.

Sad Facts of Stickely v. State Farm

This is an awful case. The plaintiff was a passenger in a car accident in Montgomery County in which her husband was killed. The plaintiff suffered catastrophic injuries. Plaintiff and her husband had coverage with State Farm, which provided typical coverage for State Farm, at least in Maryland: $100,000 per person/$300,000 per accident. The plaintiff also had a $2,000,000 umbrella policy with State Farm. The plaintiff’s counsel obviously wanted to get to the umbrella.

Regrettably, the State Farm umbrella policy included an exclusion for personal injury claims that result from the negligence of another insured. The plaintiff’s lawyer sought a declaratory judgment, claiming that her Umbrella Policy constituted “private passenger motor vehicle liability insurance,” voiding the family use exclusion regardless of the unambiguous language of the policy.

Does the Umbrella Apply?

The question, ultimately, is whether the personal liability umbrella policy is a policy of “private passenger motor vehicle liability insurance,” requiring an insurer to offer coverage under the umbrella policy for a claim made by a family member in the same amount as the coverage made by a nonfamily member, pursuant to Ins. § 19-504.1.

April 30, 2012

Maryland Pit Bull Law: A New Opinion

by Ronald V. Miller, Jr.

Friday, I wrote a blog post about the Maryland Court of Appeals opinion in Tracey v. Solesky that imposes strict liability for pit bull owners and, seemingly, landlords, in dog bite cases. I’ve offered an opinion supportive of the court’s ruling and argued that the court should go a step further and hold all dog owners accountable when their dog bites another person (or animal for that matter).

I think I’m right on the latter point. If your dog bites someone and causes serious injury, I think you should be liable for the harm that was caused. But I got a lot of comments and emails from people who strongly disagreed with some loose facts that I threw out. While some of these comments were just crazy aunts and uncles peeking out of their attics and basements, others provided real insight about these dogs that showed a far greater appreciation of facts and studies about pit bulls than I have.

April 30, 2012

New Workers’ Compensation/Foreseeability Opinion

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals issued its opinion on Friday in WMATA v. Williams, a workers’ compensation claim that addresses how far the chain for causation can go before the court decides that a later “related” injury is just too attenuated. Although I do not handle workers’ compensation cases, I think the legal issues here are interesting and have broader implications for workers’ compensation cases.

The plaintiff (I know, you call them claimants in comp; it just sounds weird to me) hurt his knee on the job. While attending “work hardening” therapy, the driver of a car in the parking lot put her car in reverse, backed into the plaintiff, resulting in an injury to his other knee for which he also sought workers’ compensation benefits.

I can see this from both sides. At first glance, I think it seems pretty attenuated to argue a causal relationship just because you coincidentally got injured going to lunch from therapy. There has to be some difference between causation in fact and proximate causation. This would seem to jibe with the Maryland high court’s holding in Mackin v. Harris. In that case, the court explained that for every injury, there are innumerable acts whose absence would have prevented the harm. It is the butterfly effect. Going back to Palsgraf, that is not and cannot be how proximate cause is defined. I’m a plaintiffs’ lawyer and even I get this. Continue reading

April 26, 2012

Strict Liability for Pit Bulls in Maryland

by Ronald V. Miller, Jr.

A divided Maryland Court of Appeals has made a new law today. In Tracey v. Solesky, the court ruled that in dog bite cases involving a pit bull or cross-bred pit bull mix; it is no longer necessary to prove that the dog in particular or pit bulls in general are dangerous. Is this a win for plaintiffs’ lawyers? Is it an anti-dog opinion? Will it lead to changes in homeowners’ policies throughout Maryland? With apologies to Steven L. Miles, let’s talk about it. (August 21, 2012 Update: Incredibly, the court has reversed itself on a key portion of this opinion.)

Solesky Case Facts

This case involves a pit bull named Clifford who lived in East Towson, just two blocks from York Road and the Towson University campus. While a big fellow like Clifford the Big Red Dog, this Clifford was a bit more viperous. One day, Clifford attacked two boys on the same day in Towson, Maryland. The injuries to the second boy were serious: he needed five hours of surgery at Johns Hopkins Hospital to address his injuries, including surgery to repair his femoral artery. He spent seventeen days in the hospital, had additional surgeries, and spent a year in rehabilitation. I’m not sure how old the boy was but, either way, it’s just an awful thing.

The boy and his parents sued the owners of the pit bull that mauled him and the owners’ landlords. The owners of the dog went into bankruptcy and received a discharge of their debt. The only defendant standing was the landlord (Although the Long & Foster lease executed allowed Clifford’s owners to keep an “American Bulldog Terrier” on a property that did not have a fence.). Continue reading

April 25, 2012

Maryland’s Best and Worst Places to File a Personal Injury Lawsuit

by Ronald V. Miller, Jr.

Ask the average person or even the average lawyer what they think of forum shopping. It is viewed as a crime against the people. So let’s talk about “forum selection” instead.

Forum selection is important, showed by the frequency with which parties contractually provide for and battle over venue. There are a host of reasons forum matters so much. There are choice of law, capacity to sue, the statute of limitations, caps on damages, and a host of other potential considerations. But for personal injury lawyers, we are forum shopping for one purpose: trying to find a jury panel that would be most receptive to our client’s claim.

In spite of all the hand-wringing about the crime against the people for plaintiffs’ lawyers to have – gasp! – options of where to sue, Maryland law defers in some measure to the plaintiff’s selection as the choice of venue if the venue is proper in the forum the plaintiff selects. The Maryland Court of Appeals has

Venue can mean everything in a personal injury lawsuit.

repeatedly held that it is “the moving party who must prove that the interests of justice would be best served by transferring the action…and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party.” But, let’s face it, the trial court has a lot of discretion on venue. A trial judge can ignore this rule with impunity and balance the interests as the judge sees fit. We joke that the “weighs strongly” rule is only the law if the motions judge agrees it should be the law. (This was never fully explained to me in law school, let me tell ya.)

If you are a plaintiffs’ lawyer, you are practicing two types of forum shopping selection: vertical and horizontal. Vertical forum shopping is moving a case to or from federal court. This is rarely an option in car accident and malpractice cases, but is a common question in product liability cases. The one thing that lawyers just don’t seem to understand is the nuances of the diversity of citizenship rule for filing in federal court. Many lawyers wrongfully believe there is diversity jurisdiction if you are suing an out-of-state defendant, even if you are a resident of that state. If you have a client who is domiciled in Maryland, and file against an out-of-state defendant in federal court, that defendant can get the case transferred to the Maryland county with appropriate venue. It is amazing to me how many lawyers don’t understand this. Continue reading

April 20, 2012

Four Personal Injury Appellate Opinions Worth Reading

by Ronald V. Miller, Jr.

There were no personal injury appellate opinions this week in state or federal court in Maryland this week but there are a few cases elsewhere worth a read:

In Morse v. Davis, the Indiana Court of Appeals affirmed a $1.25 million verdict (actually $2.5 million reduced by the cap) in a colon cancer misdiagnosis case. Defendant made two arguments we see in various permutations in our practice. The first is the whole idea of whether an expert can speak directly or indirectly to the ultimate issue of fact for the jury. The second is the extent to which an expert can make credibility determinations about another witness. I think this is often an issue not worth fighting for plaintiffs’ lawyers when the defense is calling a plaintiff a liar. Rich Friedman’s book Polarizing the Case is an illuminating read on whether it is a good thing to make the trial about whether your client is a liar.
In Horak v. Building Services Industrial Sales Company, the Court of Appeals of Wisconsin found that invoices produced by the company’s lawyer, that documented the sale of products that contained asbestos, are admissible even without an authenticating witness under the ancient-documents exception to the hearsay rule. Given the value of asbestos cases, that is a valuable invoice to find.