Maryland Injury Law Center

September 13, 2011

Truck Accident Lawsuits: Finding Coverage

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.)

September 13, 2011

Truck Accident Safety Regulation Gets Flipped on Technicality

by Ronald V. Miller, Jr.

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.

September 12, 2011

Confidential Settlements

by Ronald V. Miller, Jr.

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 personal 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

September 12, 2011

Zimmer Knee Replacement Problems

by Ronald V. Miller, Jr.

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.

September 7, 2011

Talking to Jurors After a Trial

by Ronald V. Miller, Jr.

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

September 7, 2011

Is MAIF Dying a Slow, Painful Death?

by Ronald V. Miller, Jr.

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.

September 6, 2011

New Medicare Rules

by Ronald V. Miller, Jr.

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);

September 6, 2011

State Farm Wins Unilateral Premium Increase Case

by Ronald V. Miller, Jr.

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.

August 31, 2011

Damage Caps and Jurors

by Ronald V. Miller, Jr.

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.