Reams of studies on the relationship between driver fatigue and big rig truck accidents are just a Google click away. No one has seriously disputed this premise since federal regulators first limited commercial truck driver road time in 1940.
Confidential Settlements
Pat Malone writes a guest blog on Don Keenan’s Trial Blog arguing that confidential settlements undermine public safety and justice. 2013 Update: the link is now broken, but this post is still worth reading.
His point is that confidential settlements make it harder for future plaintiffs to get evidence and information they need to bring out all the facts about the defendant’s conduct.
Specifically, Malone suggests:
Here’s one tip for avoiding last-minute pressure from the defense to cave into a secrecy agreement: Be proactive. Tell the defense counsel at some appropriate point – such as with any settlement demand letter or in a pre-mediation communication – that you will not agree to secrecy because of the ethical issues. This can be one item on a list of settlement conditions.
Pat Malone is an extremely well-respected lawyer who not only gets great results for his client but also graciously spends a lot of time helping other perso
nal injury lawyers. I also agree with his premise: there is doubt that confidential settlements make it harder for the next plaintiff. This also makes the company less accountable, too, in the big picture.
But here’s the problem: people who have been badly injured, even the best of people, have a hard time focusing on the global interests of plaintiffs everywhere when they are fighting and scrapping to be compensated for their injuries. And I have a hard time telling them they should.
Let me give you a case in point. We recently settled a case with a Fortune 500 company. No discussion of confidentiality in the settlement discussions. You know what comes next. They send a release with a confidentiality clause. We balk. They say, “Okay, let’s try the case.”
Boy, I hate being bullied by big companies. I try hard not to take these things personally. But they were so arrogant in the way they delivered their ultimatum. They never would have had the guts to play it through and I knew it. So we plotted a “file a motion to enforce the settlement and, in the off chance we lose, we try it” strategy. In angry detail. With our feathers up and blood boiling, we forgot, ah, that we have a client. So we call the client. She could not care less about confidentiality. She wants to execute the settlement and get her money.
So what do you do? I know what we did: we put our hurt pride on a shelf and sent the client the release. Continue reading
Zimmer Knee Replacement Problems
In the United States alone, approximately 581,000 knee replacement surgeries are performed each year. Getting a knee replacement is a big deal: if you need a replacement, you have really run out of options with the knee problems that you are having. So knee replacement surgery is the last line of defense for patients suffering from extensive fractures, arthritis and/or osteoarthritis.
Talking to Jurors After a Trial
I love talking to jurors after a trial. You spend days looking a seven or eight people (6 plus alternates in Maryland) and you get to know them. Sort of. But, really, you have no clue. Because jurors are incredibly poker faced. If they are showing “how to avoid giving tells as to your emotions” videos in the jury assembly room, I would not be the least bit surprised.
I found this article on Roger Clemens’ steroid trial interesting in this regard. These jurors sat through only two days of trial. Some attorneys say that jurors make up their minds during opening statements. I think that is wrong, particularly in a case like this where all the core facts are in dispute. Still, jurors start leaning in certain directions and develop in opening statements the lens from which they will view the witnesses at trial.
The Clemens trial is a classic example of a case where talking to the jurors has actual value for the parties. What arguments were they buying? Even assuming the prosecution could prove its case, do you think it was a crime? What did you make of Mr. Clemens’ demeanor during the trial? These are a few of the thousand different questions you would want to ask because these jurors make up the ultimate focus group – they make it past voir dire and onto the jury. Continue reading
Is MAIF Dying a Slow, Painful Death?
For those of you who do not practice in Maryland or don’t handle car accident cases, the Maryland Automobile Insurance Fund is a unique to our state creature. It is a state-owned insurance company that insures high-risk drivers. Most other states just require insurance companies to insure high-risk drivers if they want to sell car insurance in their state.
I guess, at least in 1972, Maryland was feeling a little libertarian and decided rather than force its bad drivers on other insurance companies, that it would just build its own. To my knowledge, a total number of zero states followed suit. (Someone correct me if I’m wrong.) Of course, once you build a state agency, there is an unwritten rule that you can’t kill it.
New Medicare Rules
Medicare announced today that it has implemented a $300 threshold for some tort liability subrogation cases. This is monumental news for accident lawyers who often get bogged down trying to settle in claims where there is some minor Medicare payment out there that “could” be related to the car accident.
Accordingly, Medicare will no longer claim subrogation in car accident and most other tort claims when:
1) the settlement (generally defined by Medicare as including settlement, judgment, award or other payment) is related to an alleged physical trauma-based incident (as opposed to an alleged exposure, ingestion or implantation);
State Farm Wins Unilateral Premium Increase Case
The Maryland Court of Special Appeals sided with State Farm over the Maryland Insurance Administration this morning in Washington v. State Farm.
The appeal rose from a consumer complaint who alleged to the Maryland Insurance Administration that State Farm failed to notify the consumer of an increase in his premium. The MIA found that State Farm did just that, violating Maryland insurance law.
The MIA’s position was unambiguous: State Farm unilaterally increased the consumer’s premium with no advance notice, violating Sections 12-106 and 27-614 of the Maryland Insurance Article. In its brief to the Court of Special Appeals, the MIA did not mince words, saying that State Farm engaged in “bait and switch” tactics to lock the consumer in at a price higher than he had already agreed to pay and that State Farm was trying to “distort this new [2006] statutory scheme.” Harsh words for State Farm. I like it.
Damage Caps and Jurors
In DRD v. Freed, the Maryland Court of Appeals affirmed the constitutionality of the Maryland cap on noneconomic damages. I was a big Fred Flintstone fan. So when the court in Freed said the cap was “embedded in the bedrock of Maryland law” because it has been around for 17 years, the phrase stuck with me.
I was reminded of this after a recent trial where one juror asked, “Isn’t there a cap on damages in Maryland?” When I confirmed there was, he turned to another juror (in a nice, familiar way actually) as if to say, “See, I told you.”
As most of you know, a jury in Maryland is not told of the cap on noneconomic damages during the trial. If there is an award in excess of the cap, the reduction is made after the verdict.
Zocor Lawsuits
The history of “bad cholesterol” has had a checkered past. Bayer’s cholesterol-reducing blockbuster Baycol allegedly caused over 100 deaths. Bayer paid over $1 billion to settle the Baycol cases.
Now come Crestor and Zocor, two more widely prescribed prescription-strength drugs designed to lower “bad cholesterol”. Both drugs allegedly cause serious muscle and kidney problems, including the potentially fatal, muscle-destroying condition rhabdomyolysis. This blog post focuses on Zocor.
Zocor (simvastatin) is a statin drug used to treat a condition known as hypercholesterolemia (better known as high cholesterol) in people at risk of developing coronary artery disease.
Statins block the ability of the liver to produce cholesterol so that the body takes any cholesterol it needs from food. It all sounds good in theory.
Zocor’s big competitive advantage in the cholesterol drug wars? It was cheaper. A lot cheaper. The old, “you get what you pay for” cliché rarely applies to drugs. The price is usually arrived at through an amalgamation of factors that don’t involve comparative efficacy. But in this case, it might hold up: at least one study has found that 80mg of Zocor was not as effective at reducing heart risks compared to the same dose of Lipitor.
But let’s get back to the point. In 2010, 2.1 million people in the United States were prescribed Zocor at a dose of 80mg. This dosage is particularly effective, because it lowers LDL cholesterol by an additional 6% versus a 40mg dose. More drugs, more cholesterol reduction. This makes sense.
- A 2023 study published in JAMA found no evidence that Zocor, a popular cholesterol-lowering drug, has any effect in treating depression. Despite earlier smaller studies suggesting potential off-label use of the statin-based medication, the researchers observed no difference in outcomes between patients receiving a 20mg dose of Zocor and those receiving a placebo.
Personal Injury Demand Letter
Plaintiffs’ lawyers put a lot of energy into writing what we call a demand: a letter that sets forth the injured victim’s case and attaches the medical records.
I sometimes use the phrase “demand” even though I don’t like it. Inherently, battles with insurance companies in these cases are adversarial. So, because we
already have enough friction, the wisdom of loading our terminology with demand is probably a terrible idea. Really, if we will call it a demand, we should load it up so it is more like “Terms of Your Surrender If You Want to Avoid War.” A better name that would be more conducive to the settlement would be “Resolution Without Litigation Package.”