Maryland Injury Law Center

April 10, 2012

Sneaky Malpractice Defense Lawyer Tricks

Last week, I wrote about a stunt that a defense lawyer pulled with a defense medical exam in a car accident case. This week’s sneaky defense lawyer trick involves a creative effort to depose plaintiffs’ medical expert twice in a wrongful death medical malpractice case.

Here’s what happened. Shortly after our lawsuit was filed in Anne Arundel County, against Baltimore Washington Medical Center, the hospital’s lawyer noted the deposition of plaintiffs’ expert. We noted the deposition of a key fact witness before the plaintiffs’ expert’s deposition. The defense attorney claimed an apparently inalienable right to depose our expert before any fact witness, and then to get a second crack at the expert down the road after he reviewed the fact witness’ deposition. So defense counsel filed “Defendant’s Motion to Compel the Deposition of Dr. [Expert’s Name] and Request Protective Order for the Deposition of [Fact Witness Nurse] and Rule 2-432 Certificate.” Can we agree this motion should be denied on the goofy title alone?

The motion begins with the perfunctory arguing of the merits of the case and the requisite taking the facts out of context. What this has to do with the merits of the motion is anyone’s guess. The motion then advances to the ridiculous argument that the defense lawyer can conduct discovery based on the Certificate of Merit. I give them credit for boldness: they come out and admit they want a second deposition of the expert if he intends to testify at trial.

Here comes the tricky part. To support their argument, defense counsel attached orders from Baltimore County Judge John F. Fader, and Prince George’s County Judges Thomas Smith and Leo E. Green, that purportedly issue similar orders in other malpractice cases to the one that defendant seeks here. I say “purportedly” because who knows what the facts of those cases are? That is why precedent is not made from reading orders, but reading the entire opinion so we can understand why the court ruled as they did and what facts were germane to the ruling. Continue reading

April 5, 2012

New Legal Malpractice Coverage Case

by Ronald V. Miller, Jr.

U.S. District Court Judge James K. Bredar ruled this week that a legal malpractice insurer – our carrier Minnesota Lawyers Mutual, who I would recommend – does not have to provide coverage for a legal malpractice claim because its insured attorneys did not provide adequate notice of a potential claim. As a result, they failed to meet a condition precedent for insurance coverage.

If you are a Maryland lawyer, you ought to read and understand this case. Alternatively, read this blog post. Or, just understand this: if you think there could be a legal malpractice claim against you, report it quickly. Do that and you will be okay. Otherwise, you are playing with fire.

The facts are convoluted in this commercial litigation case. Basically, D.C. lawyer is pro hac vice admitted into Maryland, but did not appear to really know what she was doing in handling the case, including failing to understand some fundamental tenants in who to respond to a motion for summary judgment. Whether this was just negligence in the air or whether the mistakes caused harm to the client was less clear. Minnesota Mutual hung around and defended the legal malpractice claim for a bit, but then stepped out and denied coverage. Continue reading

April 4, 2012

Defense Lawyers Looking for Every Advantage

by Ronald V. Miller, Jr.

After agreeing to a defense medical exam, we received a letter from defense counsel with a draft agreed upon order to be filed with the court agreeing to the DME. This is the first time I have seen a defense lawyer try to do this.

While it is all rather harmless in most cases, why in the world would a plaintiff’s lawyer sign this? Without reference to any conditions, the client agrees to the exam without qualification for nothing in return? I wish I knew what percentage of plaintiffs’ lawyers must sign this and send it back. It must work at least occasionally, or he wouldn’t still be sending this out (unless he just wants a reason to put down .2 on his timesheet). I also think it is annoying because you have to respond – you can’t let a “the doctor will bill you $600 for a missed appointment” sit out there without a response. (Well, maybe you can but I think you have to respond to set the record straight.)

April 2, 2012

Maryland Local Government Tort Claims Act: Another Injustice Passes Without Notice

by Ronald V. Miller, Jr.

Local Government Tort Claims and the Maryland Tort Claims Act

Our law firm does not handle police brutality cases. We have some experience handling the claims – not me but other lawyers here – and the injuries can be horrific. But the criminally insane Maryland Local Government Tort Claims Act destroys the value of these cases. I offer as exhibit #549 the Maryland Court of Special Appeals opinion in Leake v. Johnson.

Just tailor-made awful facts. Police arrested a man for public urination. A crime, I guess, but should you really be arrested for it? Well, this guy was, and he was handcuffed and put in a police van. The police did not put a seat belt on him and then gave him a wild ride in the paddy wagon.

When they realized they had nearly killed the guy, they drove him to the hospital and still didn’t fasten the guy in place. The man’s spine became dislocated and fractured, causing him to become a quadriplegic. The paralysis occurred, according to the plaintiffs’ expert, because of pulling him out of the van after his initial injuries.

He eventually died. Can you imagine? Public urination? I Googled around a little, looking for some back story. What really happened? What happened to the police officers? I can’t find a single piece of excellent information. Crazy. A zillion people are protesting Trayvon Martin. Couldn’t we borrow just a few of those people to look at the injustice that occurred here? ( 2021 Update: I might be Nostradamus). Continue reading

April 2, 2012

Defendant Was a Drunk Driver: Should That Be Admissible

by Ronald V. Miller, Jr.

Last week, in Hendrix v. Burns, the Maryland Court of Special Appeals dealt with the question of what plaintiffs’ lawyers can admit into evidence in a car accident case when the defendant stipulates to liability.

In car accident cases, many defense lawyers loathe admitting responsibility. There is always a chance that the jury will hate the plaintiff and accept some insane version of how an accident happened.

But, the best thing that can happen for the plaintiff is for the defense lawyer to deny responsibility in a case because it diminishes the defense lawyer’s credibility on the plaintiff’s injuries. If you are plaintiffs’ counsel, you want to get the jury mad at the defendant. Jurors give more money when they are mad. This is hard in traffic collision cases because it is hard for jurors to get mad at a negligent driver who makes what they can perceive to be an accident that they could easily make themselves.

Smart attorneys for plaintiff frame the case, not as an accident, but a choice the defendant made. “The defendant in this case chose not to pay attention.” But still, we all know that we have failed to pay attention while driving and it could have, under the wrong circumstances, lead to a car accident.

In Hendrix, the call to stipulate to liability was a no-brainer for State Farm who defended the case. The defendant was drunk. He tried to flee the scene of the accident, but his damaged car wouldn’t let him. He was in the middle of some road rage dispute. A picture-perfect bad guy defendant for the jury to hate.

State Farm did what they should do, file a motion in limine to exclude the introduction of evidence that the defendant was drunk, that he had been involved in a “road rage” incident with another driver and was crazily chasing that driver when he ran the red light, that defendant attempted to flee after the accident, and also that his criminal record included DUI convictions.

Plaintiff’s lawyer did what smart ones do in a case like this. He brought a battery case for the road rage, arguing that has been put to bed since law school doctrines like transferred intent. He brought a negligent entrustment count. He also smartly argued that a part of Plaintiff’s pain and suffering was seeing the defendant drunk and trying to flee the scene of the accident. This is doing everything you could do to put your client in a position to maximize her damages.

Does this have anything to do with the level of damages in a personal injury case? It depends on your world view. If you think damages should be calculated in a hermetically sealed box, it shouldn’t be admissible. From this perspective, it shouldn’t matter whether the defendant was a crackhead on his 6th DWI or a nun with a 40 years history impeccable driving.

Yet, somehow, that she was a nun would come out on direct. Why? Because the insurance defense lawyer is trying to minimize damages by suggesting that this nun is a sweetie and she will have to pay this verdict out of her pocket.

Why do we let the nun say she is a nun? Context matters. But once you agree that the fact that she is a nun should be admitted, doesn’t the dam break open when the defendant is drunk. Isn’t that context – like the nun – that the jury should consider? Continue reading

March 27, 2012

Risk/Utility in Strict Liability Design Defect Claims

by Ronald V. Miller, Jr.

The Pennsylvania Supreme Court stuck down a $5 million verdict in an Ethicon endocutter design defect case last week, finding that the trial court was not restricted to considering only one use of the device and that it correctly applied a risk-utility analysis. The case talks about product liability risk-utility analysis in the Restatement (Third) of Torts. You can read the court’s opinion here.

Plaintiff, a 40-year-old mother, underwent gastric bypass surgery (Technically, she is the plaintiff’s decedent. I use “plaintiff” because of my refusal to use the plaintiff’s names on this blog, a stance that sometimes makes recitation of the facts awkward in wrongful death cases.). To cut and resection the plaintiff’s stomach, her doctors used an ETS-Flex45 Articulating Endoscopic Linear Cutter – called an “endocutter” – made by Johnson & Johnson, subsidiary Ethicon Endo-Surgery (Let’s say charitably that both companies are frequent flyer product liability defendants.). The device was designed for use in less-invasive endoscopic surgery. It also was marketed for use in traditional “open” surgery in which a large incision is used to view internal organs.

After complications, Plaintiff’s doctors conducted a second surgery and discovered that staples were absent in two small sections and attributed the problem to “mechanical staple failure.” Sadly, the Plaintiff’s stomach contents had leaked into her abdominal cavity, causing sepsis, and her eventual death.

Plaintiff’s Estate filed a wrongful death suit contending that the endocutter was unreasonably dangerous because it was not equipped with a means to either measure the thickness of the tissue being stapled or lock the device if the tissue thickness was incorrect. Plaintiff’s Estate contended that had the endocutter been designed with this capability, it would have prevented the staple line failure that caused Plaintiff’s death.

An Allegheny County, Pennsylvania jury agreed, finding the endocutter’s defective design caused the woman’s wrongful death and awarded $ 5 million, finding that the endocutter was defectively designed.

The big issue in the case was the application of the risk/utility analysis required in a products liability action to determine whether a product is unreasonably dangerous. Here, the endocutter at issue was marketed for multiple recognized uses, but the injury to the plaintiff was caused by only one of those uses. So the question is whether the trial court’s risk-utility analysis should be limited to the use that caused the plaintiff injury or should it consider all the uses of the product. Continue reading

March 26, 2012

Maryland Tanning Bed Law July 2022 Update

by Ronald V. Miller, Jr.

Tanning beds cause cancer. Cancer kills. Tanning beds also make you look old before your time.

This matters little to the Maryland Senate who crushed the bill in committee. Which committee? The Finance Committee. Because, you know, that makes sense.

The bill, sponsored by Montgomery County Democrat Jamie Raskin, would have prohibited anyone under 18 from using an electric tanning bed, eliminating a provision in Maryland law that allows minors to tan if they have parental permission. So the rule, and it is still the rule in 2018, is that minors can tan in Maryland if their parent or legal guardian provides written consent on the premises of the tanning facility.

We do not ask parents if their kids can drink or smoke or skip school. Why do we exempt tanning? Call it Big Brother if you want, but I have no problem with stopping bad parents from letting their kids make awful choices.

The World Health Organization’s cancer division last summer listed tanning beds as definitive cancer-causers. I’m willing to take their word for it, along with many studies that concluded the risk of melanoma jumps by 75 percent in people who used tanning beds in their teens and 20s. Melanoma is lethal; 69,000 U.S. cases were diagnosed last year, and about 8,650 people died.

Listen, Katy Perry notwithstanding, it’s dumb to let your child go into a tanning bed. This we know. So what is the problem? According to the Indoor Tanning Association, 8% of the customers are 18 years old or younger. On an average day, over 1 million Americans engage in indoor tanning. Do the math. See where the lobbyists are coming from on this?

March 23, 2012

University of Baltimore Law School Dean Candidates

by Ronald V. Miller, Jr.

There are five finalists for the dean of University of Baltimore School of Law that will visit campus beginning March 26. I will review these candidates for you and make my selection. To be fair, I have never met or even heard of any of these people. I’ve limited my education to a three minute Google search of the candidates.

Nicholas Allard: A lawyer at political heavyweight, Patton Boggs, Allard is a former chief of staff to U.S. Sen. Daniel Patrick Moynihan and former legal counsel to U.S. Sen. Edward M. Kennedy. While I’m not pretending I’ve ever heard of him, this is the celebrity pick. Moynihan was one of the few politicians in the last 50 years who the left and the right deeply respected, and Kennedy was Kennedy. That’s the big time. He is knee-deep in pedigree, attending Princeton, Oxford, and Yale which, in a bizarre coincidence, are the same schools my children will attend in 13 years (although they are not going to law school). Here’s my concern: is there a risk that hiring Allard is like hiring Michael Jordan to play baseball? Dean Closius came here with a history of turning around a law school. Allard would come with a history of being great at lots of things other than running a law school.

March 21, 2012

New Maryland High Court Ruling on Res Ipsa in Car Accident Cases

by Ronald V. Miller, Jr.

I was planning to take the week off of blogging this week. The Maryland Court of Appeals rejected this plan by publishing its opinion in District of Columbia v. Singleton. In a quiet but meaningful protest, I will make this post a little rambling and disjointed. Just know this is an intended effect. So here we go.

In Singleton, the plaintiff was on a bus with his 8-year-old son in Prince George’s County, traveling on Route 50. They were going on a school field trip to Six Flags. While the plaintiff was asleep, the bus went off the road and hit a tree. Plaintiff suffered injuries in the accident, but I think this was nothing more than a soft tissue injury case.

At trial, the plaintiff and his son could not provide testimony on why the bus went off the road. Plaintiff’s lawyer did not call the bus driver or any other witnesses. Plaintiff’s obvious problem: where is the proof of negligence? Plaintiff attempted to solve this problem by relying on res ipsa loquitur, using the simple logic that buses don’t crash into trees in the absence of negligence. The trial judge disagreed, finding that there were “too many leaps of faith that a reasonable fact-finder would have to take” in order to find that the bus driver’s negligence caused the accident.

In an unpublished opinion, the Maryland Court Special Appeals reversed, finding that plaintiff’s testimony that he was sleeping and woke up to see the bus had hit a tree “raised a rebuttable presumption of negligence on the part of the driver.” The CSA relied on longstanding Maryland law that “the failure to maintain control of the vehicle presents a prima facie case of negligence.”
The issue on appeal, according to the Maryland high court, was whether plaintiffs may use res ipsa loquitur in a single-vehicle, motor tort negligence action arising from the vehicle leaving the road, where the plaintiff could not recall the circumstances of the accident and “failed to produce other reasonably accessible and probative evidence to attempt to determine the cause of the accident.”

I love this issue statement. It is like me asking one of my kids, “Should you be allowed to play Fruit Ninja on the iPad when you have not eaten you dinner and have acted completely inappropriately all evening?” You know how the opinion will come down the they loaded the question. Continue reading

March 21, 2012

Uninsured Motorist Bill Up for Committee Vote Today

by Ronald V. Miller, Jr.

The Maryland House Economic Matters Committee will vote today on House Bill 715, from the insurance lobby, to reverse the rule in Maurer v. Pennsylvania National Mutual, that waiving subrogation in underinsured motorist cases is conclusive of the at-fault drivers liability for causing the accident. I wrote about this bill last week, pointing out that this may be a rare instance where car insurance companies and auto accident lawyers might agree, although this bill matters more to the car insurance companies that it does to Maryland accident lawyers.