Maryland Injury Law Center

October 11, 2011

Baltimore Law Firm Loses Medical Records

Twitter is giddy about a Baltimore Sun report that a medical malpractice defense law firm lost a portable hard drive containing medical records for 161 stent patients in the lawsuit against cardiologist Dr. Mark G. Midei for alleged malpractice at St. Joseph Medical Center in Towson. Apparently, an employee of the law firm Baxter, Baker, Sidle, Conn & Jones left the hard drive on the Baltimore light rail. It is a good story anyway, but this one is extra juicy because it involves the most prolific malpractice lawsuit in Baltimore. So it is the perfect storm. The lawyers at Baxter, Baker must have muttered a thousand times by now: why this case of all cases?

The irony of all of this bad publicity for Baxter, Baker – which is a very good law firm – is that they did what their malpractice clients rarely do: they owned up to their mistakes. The law firm notified St. Joseph – its hospital client – and the malpractice insurer of the hard drive loss shortly after the loss and acted fairly quickly to let the patients know of the potential invasion of their privacy. Ultimately, while it is unfortunate that patients who have already suffered have to fear this potential invasion of their privacy, the good news is that this is very unlikely to cause anyone harm. There are probably far greater privacy risks for these patients out there. (Where is the defendant’s medical expert keeping these records?) The way Baxter, Baker could really screw up would be in the cover-up which they wisely did not attempt.

October 10, 2011

Four Personal Injury Opinions From Last Week You Should Read

by Ronald V. Miller, Jr.

I read four personal injury-related appellate opinions published last week that I think are worth reading:

Thibodeaux v. Trahan: Like most personal injury lawyers, I have been hit with post-trial remitter motions from defense attorneys claiming that the jury’s verdict was unreasonably high. But no plaintiff’s lawyer is silly enough to file a post-trial motion for additur to raise the verdict because it will never work. I think federal law prohibits additur in federal court jury awards. Someone forgot to tell the Plaintiff’s lawyer in this rear-end accident bus case in Louisiana who appealed the trial court’s failure to award future pain and suffering. The appellate court changed not only the comparative negligence allocation but also increased the plaintiff’s damages, finding that the trial court failed to award enough damages.

Crazy, right? The facts were unique. This was a bench trial where the trial judge specifically found that the Plaintiff will need future surgery for her knee but did not award damages. Juries, I guess, get a pass on inconsistencies in their verdicts because it could result from compromise. But a trial judge deciding damages cannot form a compromise in her own mind and has to make an award consistent with the court’s findings. (Actually, I read this malpractice opinion that was decided last Thursday that makes a similar point.)

Louisiana law allows the appellate court to increase the award to the lowest amount reasonably within the trier of fact’s discretion. I don’t think Maryland law prohibits additur but there is no recorded case in Maryland where the trial court increased a damage award. I don’t know why, if we have remitter we should have additur under Goose v. Gander.

Osorio v. One World Technologies: The First Circuit affirmed a $ 1.5 million award in a product liability case in Massachusetts involving a defectively designed power saw that Plaintiff’s employer bought at Home Depot.

Plaintiff’s hand injury occurred on a construction site while operating a $179 Ryobi Model BTS15 benchtop table saw bought at Home Depot. While cutting a piece of wood, the Plaintiff’s left hand slipped and went into the saw’s blade.

Plaintiff’s attorney put up a witness at trial who invented a device that allows a table saw to sense when the blade comes into contact with the user’s body and stops the blade from spinning. This is very cool. But none of the major table saw manufacturers bought the invention.

Plaintiff’s theory why? Basically, an Oliver Stone-ian conspiracy theory that the manufacturers’ failure to incorporate this invention is because of a collective understanding that if any of them adopts the technology, then the others will face heightened liability exposure for not following suit.

Honestly, I’m not sure that entirely even makes sense and I really doubt that happened. The messenger is suspect, too: the guy who failed to sell table saw manufacturers on his technology. Continue reading

October 3, 2011

Truck Accident Claim Tactics: How Much Does the Truck Weigh?

by Ronald V. Miller, Jr.

A defense lawyer who regularly defends truck accident cases was telling me recently how many plaintiffs’ lawyers rarely ask the questions that really scare him in deposition or in discovery. Car accident lawyers figure, “Hey, it is a truck accident. A truck accident is just a big car, right? It is really not. There are too many nuances to truck accident cases.

Heavy trucks can be simply lethal

One typical miss: inquiry on how much the truck weighed. Some estimate that 30 percent of tractor-trailers and dump trucks are overweight. I’m guessing that is high. Sometimes, advocates for plaintiffs get a little carried away, and the result is hyperbole.

But truck accident cases disproportionately involve overweight trucks not only because heavy trucks cause more accidents because they are less safe, but also because truck drivers and companies willing to go overweight are similarly willing to take other chances with fatigued drivers and improperly maintained trucks.

September 28, 2011

New Maryland Accident Law: Useful Change for Personal Injury Lawyers

by Ronald V. Miller, Jr.

Every plaintiffs’ attorney in Maryland has at some point become frustrated with an insurance company over the gameplay regarding their client’s insurance policy. Under current Maryland law, an insurance company is not required to disclose its policy limits although such information is readily available in discovery after a lawsuit is filed. Some adjusters would give you enough information with a wink and a nod to figure it out. But most insurance adjusters just stand the party line like robots and say “Our policy is not to give out that information.”

Injured clients understandably find this maddening: we tell them they are better off waiting until there is clarity on permanency before filing a lawsuit. But sometimes, this means lying around in pain, not knowing if you will ever be adequately compensated for your loss. It is maddening.

Starting on October 1, 2011, insurance companies will be required to disclose their policy limits if the following information is provided to them: Continue reading

September 26, 2011

Is Voir Dire in Maryland About to Radically Change?

by Ronald V. Miller, Jr.

As I have written many times, I’m a big fan of David Ball’s book “Damages 3.” I’ve read the entire book more than once. I’m ready to take a quiz on the contents.

But I would fail the portions of that quiz on voir dire. It is hard for Maryland attorneys to get excited about voir dire because we know so little about the jurors we pick. At my last trial, I picked out during the juror roll call who I thought should be on the jury. After voir dire, not a single thing changed. (Maybe a little expectation bias? Sure. Still.)

Were my initial judgments based on useless stereotypes and facial expressions? Sure. But deciding because a prospective juror served on a criminal jury in 1993 or that his mother once had a fractured femur is similarly without foundation. It is like the woman (or man) who marries solely based on how attractive their spouse is criticizing someone who marries for money. Maryland trial lawyers just don’t use actual information to evaluate potential jurors. So we are left with stereotypes and Malcolm Gladwell “blinks” to make our decisions.

The Maryland State Bar Association has a trial lawyer, Henry Dugan, who is in charge for a one-year stint, and is now seeking uniformity in voir dire and is exploring the development of model voir dire instructions. Continue reading

September 22, 2011

Truck Accidents: Finding Coverage and Bad Conduct

by Ronald V. Miller, Jr.

It is easier to file a lawsuit against a trucking company than a truck driver. This is true because human beings are likely to feel more comfortable placing blame on a big business than pinning it on one, possibly sympathetic, truck driver. We humans are folksy like that.

Juries are not told of the existence of insurance in traffic collision cases, leaving the juries wondering who is footing the bill. Most juries get it, but they are not entirely sure because it seems so unbelievably odd that no one mentions insurance. The collateral source rule is not understood by the public.

I had a trial once in a truck accident case where we did clearly point to the commercial defendant. He was a great guy. We tried to leave him out of it as much as possible. But after the verdict, one juror was extremely concerned that the defendant driver – who left an “I don’t have two nickels to rub together” impression – would have to pay out of his pocket after the verdict. “That nice Mr. So and So is not going to have to pay for this, is he?” The take-home message for me: you have to make crystal clear the corporate entity is the one on the hook, not the likable driver.

September 20, 2011

Sequence of Witnesses

by Ronald V. Miller, Jr.

Who Should You Call as Your First Witness?

You give your opening statement. The defendant gives her opening. Who do you call as your first witness?

Too many plaintiffs’ lawyers – particularly in car accident cases – spend too little time on this question, because scheduling conveniences dictate the order or because they think the most important witness should be the first or last witness.

In his book “Damages 3”, David Ball provides a list of four things you want from your first witness:

Provide an Overview of the Case: Ball says the first witness should be someone who can tell a significant part of the overall story. Probably the ideal witness is someone who can establish what the defendant did and give some preview of the harm that was caused. In a truck accident case, for example, it would be the witness who saw both the truck accident and the immediate harm that was caused.
Introduce the Harm: The first witness should be someone who saw the initial harm, assuming it is a case where the initial harm is substantial. Again, a witness on the scene usually meets this criterion.
No Stake in the Outcome: Clearly, this does not include the spouse or even a close family member of the client. Realistically, you can’t get this in every personal injury case. But the closer you can get to “no dog in the fight” the better.
Cross-Proof: I think this is the most important of all: a witness that cannot be effectively crossed. I think this is the most important factor on this list. It is also the most difficult.

September 13, 2011

Weehoo Bike Trailers Recall

by Ronald V. Miller, Jr.

Weehoo will recall approximately 2011 Weehoo iGo bicycle trailers the company made between April 2011 and July 2011. The problem is a parents worse nightmare with these things: that their child becomes unhitched and goes into traffic or somewhere else that is unsafe.

Apparently, the receiver on the trailer’s seat post hitch can crack. If it cracks, it might cause the trailer to detach, posing fall and crash hazards to the child being pulled along.

I have a bike trailer but I have no idea what the name of it is as I type this post. The particular trailer has a steel frame with an adjustable seat for passengers 38 to 52 inches tall, two pedals with straps, an enclosed sprocket and chain, a 20-inch wheel, two pannier pockets, a flagpole and a flag. The seat, pannier pockets, and flag are made of red, heavy-duty nylon.

September 13, 2011

Truck Accident Lawsuits: Finding Coverage

by Ronald V. Miller, Jr.

Truck accident cases are often about insurance coverage. As I have written before, trucking companies are getting advice from lawyers to set us as many different fraudulent hoops as they possible to shield themselves from liability.

One mechanism to avoid responsibility many companies use (sometimes innocently) is hiring trucking companies that are independent contractors. So when the there is a truck accident suit where the claim exceeds the independent contractor’s insurance coverage, the company tries to hide behind the “that’s my independent contractor” shield (although, sometimes, that shield is artificial and the independent contractor is really an employee).

As a result, companies trying to get their products from point-to-point often pick trucking companies that could provide the lowest price. Often, it costs money for trucking companies to do the safe thing – namely, hiring good truck drivers without a history of drug and alcohol abuse or a history of car or truck accidents. Bad truck drivers are available on the cheap.

September 13, 2011

Recent Personal Injury Opinions

by Ronald V. Miller, Jr.

If you have the time, here are a few opinions of interest from the past few weeks for personal injury attorneys. If you don’t have the time, I have tried to provide a quick summary of the relevant facts and law.

Rosenfeld v. Oceania Cruises: This is the classic slip and fall case that, honestly, my firm never would have taken. Plaintiff slipped and fell on a wet ceramic surface while walking to the bathroom at the dinner buffet on an Oceania Cruises cruise ship. Worse still, the Plaintiff did not really remember at deposition what type of floor she was on when she fell. Plaintiff brought in an expert from Austria (seriously, Austria) who testified that the tile Plaintiff’s lawyers claimed she slipped on had an inadequately low coefficient of friction. Really, just the worst imaginable case. Still, the 11th Circuit overturned the district court and found that this expert’s opinion should survive a Daubert challenge. So this case goes to the jury despite its Swiss cheese holes.
Fritch v. University of Toledo College of Medicine: This is a brachial plexus medical malpractice case. Plaintiff’s expert testified that there were four possibilities what happened: (1) there was some traction on the nerves during surgery; (2) there was bleeding that no one saw (or couldn’t see) and they pulled traction on the nerve; (3) they stretched the nerve by stretching the arm; and/or (4) a scalene block injection caused the brachial plexus. Plaintiff’s doctor held up on direct examination, testifying that it was more likely than not that the injuries occurred because the surgeon negligently stretched the nerve in surgery from moving the arm or retracting on the retractor. The doctor’s experts testified as to the other possibilities of the harm that were possible but did not say that any of those likely were the cause. Plaintiff appealed to the Ohio Supreme Court, arguing that the doctor’s experts should not be able to testify about causes, only those that are more probable than not. The court rejected this claim. A Maryland appellate court would as well because there is no requirement that the defendant’s expert witness is required to state an alternative possible cause in terms of probability). Plaintiff also made a res ipsa claim which failed (although there are viable res ipsa malpractice claims in Maryland in very limited circumstances.)