Maryland Injury Law Center

March 5, 2012

New Maryland Expert Opinion Ruling

The Maryland Court of Special Appeals issued an opinion last week in a case that should be read by every Maryland personal injury lawyer who is putting up or cross-examining expert witnesses at trial.

What Happened in Yiallouro v. Tolson?

In Yiallouro v. Tolson, the plaintiff was injured in a car accident while in the scope of his employment. The case went to a Montgomery County jury who awarded the victim and his wife $925,000.

After the verdict, the trial judge made two conclusions that blew up the jury’s verdict. First, the judge concluded that he had made a mistake in letting the plaintiffs’ vocational rehabilitation expert testify about the plaintiff’s lost wages at trial – over $400,000 – because her opinions were speculative and without sufficient foundation. The trial judge also concluded that the pain and suffering damages were excessive and perhaps influenced by the testimony of the vocational rehabilitation expert.

This ruling put plaintiffs’ lawyer into a box: trial judges have a lot of discretion to vacate verdicts that the court deems excessive. So he did the only thing he could do: try the case again. He even got the vocational rehabilitation expert back, getting her past a Frye/Reed hearing. (2020 Update: Daubert is now the rule in Maryland.)

Learning from the Last Trial

The defense lawyers – channeling their inner Bill Belichick – did something really smart: they learned from the first trial. Most trial lawyers will tell you that accident reconstruction experts usually are a waste of time. The jury draws its own conclusions and ignores the expert, according to conventional wisdom.

The defense lawyers, in this case, ignored this conventional wisdom and brought an accident reconstruction expert to testify about his measurement of ground distances and his estimations of speed, stopping time, and stopping distance—including his assumptions of average reaction times. Defense verdict. Contributory negligence. Game over. Riches to rags. Thankfully for the plaintiffs, the Maryland Court of Special Appeals, in an opinion by Judge Albert J. Matricciani, reversed the trial court, finding that the expert had been appropriately qualified.

Future lost wage damage claims present challenges because there is no way to determine the future and, on some theoretical level, an expert who offers future lost wages is guessing. Still, Maryland law allows for damages for future lost wages, if for no other reason than the incredible injustice that would ensue if the law just dismissed future lost wage claims as speculative on their face.

How to Make a Lost Wages Argument?

So plaintiffs’ lawyer used the three-step game plan good accident attorneys use when claiming future lost wages. Get an expert opinion from an orthopedic doctor, have the voc rehab expert translate the plaintiff’s limitations into lost income, and then have the economist give the jury the real value of the lost stream of income.

March 1, 2012

Allstate v. Former Allstate Adjuster

by Ronald V. Miller, Jr.

U.S. District Court Judge Catherine C. Blake issued a fascinating opinion this week in Allstate v. Warns, denying a former Allstate adjuster’s motion for summary judgment in a “we think you stole our documents and provided them to the plaintiffs’ lawyer” case. The facts are juicy. It is more than worth the time to lay them out. Get some popcorn and head back over here.

Welcome back. Defendant was an Allstate claims adjuster for 33 years, handling only lead paint cases during the last 5 years of her Allstate tenure. Seemingly, the very definition of a company gal. I would think if you stay at Allstate for 33 years, you would order extra glasses of the Colossus Kool-Aid and all the other noxious potions they are concocting in the lunchroom over there.

The first clue that this adjuster had fallen off the wagon is that she invited several plaintiffs’ lawyers – including the plaintiffs’ lawyer, that will hire her in a second, who she had ongoing lead paint cases with – to a party at her house. Allstate, probably monitoring the cameras it has installed at the homes of all its employees, found out and confronted the adjuster. Later, Allstate – alleges anyway – that this same plaintiffs’ lawyer had sent her flowers, gifts, and cards while she was at Allstate. Allstate says the adjuster quit, claiming she was going through personal issues. The adjuster was next seen by Baltimore Housing Authority lawyers, no strangers to controversy themselves; passing what someone thought was a confidential Allstate instruction manual on lead paint cases at the trial table of the flower/card/gift sending plaintiffs’ lawyer. (That might not be exactly how Allstate found out. Humor me. The story reads better that way.) So Allstate sued her.

February 24, 2012

Pre-Verdict Interest

by Ronald V. Miller, Jr.

The purpose of pre-verdict interest is to require a person who owes money to pay for the time value of money, which is the advantage received from the use of that money over time. In contract dispute cases, Maryland provides for 6% prejudgment interest.

In personal injury cases, many of plaintiffs’ damages also occur immediately. Just like contract cases, Maryland personal injury victims are deprived of the use of money to which they are entitled to receive the moment they incur the injuries. Yet tort victims get no interest on money that accumulates.

Insurance companies are premised on time value of money. Take premiums, invest the money, and – reluctantly – pay out claims later. While I think the idea that insurance companies stall to delay making payment is sometimes overblown (administrative considerations give insurance companies some incentive to move files forward), there is still no question that there is economic incentive to delay because the longer they hold the money, the more interest they will receive. Continue reading

February 22, 2012

New Maryland Wrongful Death Use Plaintiff Opinion

by Ronald V. Miller, Jr.

This week, in University of Maryland v. Multi, Medical Systems, the Maryland Court of Appeals reversed the Court of Special Appeals on a topic that has gone relatively untouched until recently: “use plaintiffs” in wrongful death cases.

This appeal involved a medical malpractice wrongful death and survival action claim brought by two men who alleged that University of Maryland Medical Systems (“UMMS”) doctors negligently tore their father’s trachea during an intubation procedure after he had an acute myocardial infarction. Plaintiffs’ malpractice attorneys’ alleged the doctors failed to timely treat the torn trachea which led to complications that caused their father’s death.

Baltimore City Circuit Court Judge Evelyn Cannon dismissed this plaintiffs’ wrongful death claim with prejudice after the hospital filed a motion seeking dismissal because a long lost adopted son of the decedent was not named as a use plaintiff on the Complaint. When I wrote about the Maryland Court of Special Appeals opinion last year, I thought the plaintiffs’ lawyers learned of the adopted son in deposition. But this was flushed out in oral arguments. The plaintiffs’ lawyers told the court that counsel knew of the adopted son but could not find him (or even knew if he was alive). The Court of Special Appeals reversed the trial court, finding an abuse of discretion in now allowing the plaintiffs leave to amend the complaint to add the use plaintiff. Continue reading

February 17, 2012

Baltimore City Birth Injury Verdict Affirmed

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals affirmed this week a $4.1 million verdict (reduced to $3.6 million by the cap) in a medical malpractice, birth injury case against the University of Maryland Hospital in Baltimore City.

No one would disagree that the facts are tragic. The plaintiff, now a second-grader, was born at 26 weeks of pregnancy. While the child has made unbelievable strides in recent years – and will continue to with God’s Grace – he still cannot run. His current IQ is in the 80s. Doctors at the trial testified that he will likely be a “disabled worker” when he reaches 18, making his job prospects poor. It is an awful thing. Hopefully, his recovery continues to push him forward, and he proves these predictions wrong (I realize I said this already). Continue reading

February 13, 2012

Howard County Race for Judge and Random Howard County Musings

by Ronald V. Miller, Jr.

This blog is directed primarily to other personal injury lawyers around the country. I try not to focus too much on issues specific to Maryland because there are not enough lawyers in Maryland to maintain a readership. Even when I’m analyzing Maryland personal injury cases, I try to make the information of use to lawyers everywhere. But my post last week on Clark Ahlers own bid to oust the sitting judges in Howard County has generated a lot of traffic, emails, and some interesting comments. Continue reading

February 13, 2012

Punitive Damages for Drunk Drivers in Maryland

by Ronald V. Miller, Jr.

There is a bill in the Maryland General Assembly that would allow punitive damages against drunk drivers who caused “injury or wrongful death while operating a motor vehicle.” Punitive damages would be available against drunk drivers: (1) With a blood alcohol concentration of over .15; or (2) With a blood alcohol concentration of over .08, and was driving on a suspended or revoked license or had entered a plea of nolo contendere or received probation before judgment within the last 5 years.

The Maryland Chamber of Commerce opposes this bill. Why? I really think it is because the Maryland Chamber is run by the true believers who care about some issue far more strongly than furthering the interests of Maryland businesses. That mission includes a vehement opposition to anything their gut tells them that Maryland personal injury lawyers might support. Seriously. If Maryland Association for Justice put out a statement that Jeremy Lin should be the focal point of the Knicks’ office even when Carmelo Anthony returns, the Maryland Chamber of Commerce would immediately put out a statement renouncing Lin (citing the fact that Carmelo is from Baltimore or something). It is just silly.

(Minority Report: their opposition makes perfect sense. They are worried about the slippery slope of punitive damages affecting Maryland businesses and they are two steps ahead in the chess match. Personally, I don’t give them that much credit.)

So let me set the Chamber’s mind at ease. Economically, plaintiffs’ attorneys would get no real benefit from punitive damages in drunk driving injury and death cases. Why? Because punitive damages are not covered by insurance. Which means the drunks have to come up with the cash themselves. My firm has collected $0.00 from people individually over the last ten years. Collecting money from people individually is just very difficult. In almost every case, the juice is not worth the squeeze unless the defendant goes by the name John Rockefeller. Lawyers handling traffic collision cases will not see their revenues rise half of a percent by getting drunks to pony up punitive damages. Continue reading

February 10, 2012

Baltimore Car Accident: New CSA Opinion

by Ronald V. Miller, Jr.

There is a big new Maryland Court of Special Appeals’ opinion in Garrity v. Injured Workers’ Insurance Fund, an opinion issued this week that every Maryland car accident lawyer should read, particularly those like me who rarely handle workers’ comp cases.

If you handle motor vehicle injury claims, you need to spot the issues with workers’ comp claims. If you can’t, you may leave your client’s risk-free money on the table without ever knowing that your client had another source of compensation. While comp claims are an enormous hassle for lawyers handling car accident claims, because dealing with the comp lien can be a nightmare, you must know whether your client might have a claim.

One big step forward towards understanding what you need to know is an appreciation for the “comings and goings” rule and its exceptions. This opinion, written by Judge Michele D. Hotten, should help get you there.

The plaintiff in Garrity, a part-time bailiff at the District Court for Baltimore City, was involved in a serious car accident as he was driving back to the courthouse during the workday. The case starts off comically enough, the plaintiff wore a Christmas tie to work in the spring and had to go home to change his tie. He also spills something on the tie. It comes off like a classic episode of Three’s Company. But the good humor ends when the plaintiff gets into a head-on crash – an accident caused by the other driver – and ends up on shock trauma.

(The good news is that plaintiffs’ attorney’s brief to the court shows that this bailiff is now back to work at the courthouse.)

The plaintiff’s lawyer made three arguments to get this car accident covered by workers’ compensation. All three would fail. But it is worth looking at the arguments.

Plaintiff’s Arguments

The first argument was that while injuries incurred while going to or coming from the place of employment are not compensable, the Plaintiff was on a “special mission” exception to this rule. Under this rule, if the employer requires a worker to undertake a special journey for the benefit of the employer, injuries that occur en route are compensable even if the trip may be only to or from the employee’s usual place of business. This argument failed because the bailiff did not have express or implied authority to leave the courthouse. Continue reading

February 9, 2012

Clark Ahlers: Howard Court Judge Election Battle

by Ronald V. Miller, Jr.

The Baltimore Sun has an article this week about Columbia criminal attorney Clarke F. Ahlers attempt to unseat Judge Lenore R. Gelfman and Judge William V. Tucker on the Howard County bench in November.

I don’t know Ahlers. I know he was a former Howard County police officer who taught at the University of Baltimore School of Law for a time. I’m not floating around in Maryland criminal law circles, but the impression I have is that he is well-liked and well respected. So Ahlers is right, he probably would make a good judge. That is not a canned, obligatory throw-away line: I really think he would be a good judge.

No Real Issues

But what exactly are the issues in the campaign? Well, I went to Ahlers’ website. He has a category devoted to the issues. Oh good, I thought, let’s see what they are.

There are no issues. There is a lot of talk about the Constitution but, really, are there judges out there running on an anti-Constitution platform? He also wants a new courthouse, and he was in private practice. We devote most of this page to the serious criminal/police cases he has handled. A great resume, but not exactly an explanation of the issues.

There is, however, a quote from Thomas Jefferson about the blessing of judicial elections and a bit of a lecture for those of us who oppose judicial elections in Maryland:

Those who favor a purely appointed system of judges believe citizens are too dull to manage their own lives without government’s direction, and are unqualified to select those who would sit in judgement of them.

I think this populist argument is the best arrow in the quiver of judicial elections. But it is weak. I don’t think opposing local judicial elections is a blessing for the notion that citizens are too dull to manage their own lives with government direction. In fact, the connection of the two is – respectfully (hey, particularly respectfully if Ahlers wins!) – intellectually lazy. I can favor having police officers without being in favor of a Gestapo. I can favor taxes without being in favor of socialism. I can favor Joe Flacco without calling him a top ten NFL quarterback.

No one agrees that we should select every governmental position? Should we vote on who should be the Howard County Chief of Police? How about the Superintendent of Schools? Are we so lazy that we don’t care who can arrest us and who teaches our children?

February 7, 2012

Illegal Immigrants in Personal Injury Cases

by Ronald V. Miller, Jr.

LawyersUSA has an article out today on the struggles that personal injury attorneys have had in getting fair compensation for their clients in accident and malpractice cases. The article contains a few quotes from me.

There are a couple of leitmotifs lawyers deal with when representing injured people who are either illegal immigrants or appear to be. First, if they are legally here in this country, get that out on direct. There are some jurors who – let’s face it – will view anyone with an accent as an illegal immigrant. In the real world, there is a prejudice against illegal immigrants. If you can kill that perception, do it.

Conversely, you need to move in limine to bar any evidence, suggestion, or argument regarding the immigration status of plaintiff (or any witness, for that matter) because it is prejudicial. Put in front of a jury that the plaintiff is legally working in this country, yet suppress any mention of immigration status if the plaintiff is undocumented? Is firing off these two seemly contradictory statements in seconds lawyer double talk or even duplicitous. Actually, it is not. Juries don’t say “Gee, we have a documented immigrant, let’s open up the checkbook” but they might discriminate against a plaintiff because they don’t think he/she belongs in this country. Doors don’t always swing both ways. Continue reading