Maryland Injury Law Center

December 16, 2010

McDonald’s Happy Meal Lawsuit

A lawsuit has been filed by the Center for Science in the Public Interest – fancy name – against McDonald’s in the liberal bastion of San Francisco. The lawsuit alleges that McDonald’s practice of including toys with its Happy Meals is deceptive advertising. From now until the time this lawsuit is dismissed in eight years, people will call it the McDonald’s Happy Meal lawsuit.

Happy Meal Lawsuit Another Foolish Lawsuit

I will focus group this lawsuit. Hold on. I’m back. Jury’s back. Everyone thinks it is stupid. Notably included in that group are mainstream progressives like myself. We are not libertarians. But liberals are Americans, too. (A few tort reformers heads just exploded but let’s move on.) We are a people who are historically opposed to others deciding for us when we have all the facts available for us to make our own decisions and most of us think the behavior is okay.

December 15, 2010

What to Wear for Trial?

by Ronald V. Miller, Jr.

I mentioned in a blog post last week that I monitored the conviction of the at-fault driver in a wrongful death car accident case that I have. The case was in District Court in Essex. Judge Martha Russell presided over the case. She’s a new judge and a good one who was obviously very experienced in dealing with criminal cases.

How to dress at trial

Judge Russell was very patient with unrepresented defendants. She displayed not an ounce of superiority or contempt in dealing with defendants who offered stories that were sometimes worthy of contempt. If you are a judge out there and you are trying to impress me (oh, it is a long line, I’m sure), treat the parties and, if you don’t mind, the lawyers, the same way you would if you did not have all the power in the room. They say you can learn a lot about people they handle adversity. I think you can learn more about someone by how handle power.

Okay, now let’s move on to the actual purpose of this post. I noticed that the defendants at the criminal cases I watched were generally dressed poorly, wearing clothes you should not wear to something that matters. Maybe just as important as wearing the appropriate clothing is wearing it appropriately. A quick tip: it is probably not a sign of respect if you are wearing your pants four inches south of your waist. (Note: I originally wrote this as north which is obviously a typo! A reader corrected me!) If you are trying to show respect, that you are repentant, or even that you are not guilty, it makes sense to dress like you have respect for the court and respect for the process.

Keene Trial Consulting has a post on this subject: Tattoos: When Should You Clean Up Your Witness? Douglas Keene writes that the goal of a trial lawyer in presenting their client is to “help the jury see the witness as ‘kind of like me’ or ‘someone I can trust.'” Continue reading

December 9, 2010

Refer Your Personal Injury Cases to Us. Seriously.

by Ronald V. Miller, Jr.

The Insurance Journal reports a rise in legal malpractice claims. Incredibly, there has been no hand wringing about increased malpractice rates for lawyers or fears that lawyers can no longer keep their practices open as their insurance rates rise. We have never had a legal malpractice claim yet our rates continue to increase. No one cries for us.

A part of the rise in the number of legal malpractice claims is countersuits against lawyers who are suing their clients to pay their bills. But I think the larger problem is what the article calls “door law,” a phrase I have never heard before but I like. Door law is when lawyers take any client who walks through the door who might generate a fee. When law firms step outside their areas of expertise, bad things will happen. Continue reading

December 2, 2010

New CSA Venue Decision

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals decided on Thompson v. State Farm, a bad faith claim against State Farm that arose out of a car accident in Millersville, Maryland in Anne Arundel County. At issue is a common battleground in Maryland car accident cases: venue. A regular issue that is usually, but not always, decided in favor of; however, the trial judge sees it.

State Farm won the case, and the CSA sided with the trial judge. This was, however, anything but a garden variety venue case. This case involved an appeal of a Maryland Insurance Administration finding that State Farm had not committed bad faith, which made the venue issue that much more complex. As I talk about below, the court gets into the two bad faith statutes and begins what I don’t suspect will be the first appellate effort to sort through them.

Plaintiff’s lawyer was the well respected Debbie Potter from the Jaklitsch Law Group. Debbie was doing what excellent accident lawyers do, trying to get venue in a favorable jurisdiction.

Her argument was that venue was proper in Baltimore City because State Farm does business in Baltimore City and State Farm could not point to anyone who would be inconvenienced by deferring to the Plaintiff’s choice of venue. (Liability for the car accident was not in dispute so, arguably, the location of the accident or the domicile of the at-fault driver should not enter the calculus.)

In fact, for any bad faith case against State Farm, any State Farm witnesses would likely come from Owings Mills (where State Farm houses its adjusters). Obviously, the argument goes, Annapolis is further from Owings Mills than Baltimore City. Continue reading

November 30, 2010

Paralyzed Child’s Claim Against Montgomery County

by Ronald V. Miller, Jr.

Jonathan Turley writes a good post about the insanity of the cap on liability provided by the Maryland Local Government Tort Claims Act.

The case involves a car accident that resulted from a Montgomery County, Maryland police officer doing what a noticeable minority of police officers do in police cars: drive at excessive speeds. This police officer was doing 56 miles per hour in a 30 mile per hour zone. When we see this on the road, no one even complains about it. It is just something we accept. Police officers drive at a speed of their choosing, even off-duty. Until something this happens. Continue reading

November 29, 2010

Medical Malpractice and the National Debt?

by Ronald V. Miller, Jr.

I’m squinting my eyes but I still cannot get the correlation between the national debt and limiting medical malpractice lawsuits. This Huffington Post commentary points out the insanity of including medical malpractice reform on our “to do” list to tackle the national debt. The “Bristol Palin as America’s Next Sweetheart” like stretch: if doctors made more money, it would reduce medical costs and Medicare would be cheaper.

If the Baltimore Orioles would get better baseball players, the city’s residents would become happier and more productive. Baltimore could not contain these good vibrations to its own borders. The economy would improve, more people would pay taxes, and we could reduce the national debt.

How is that logic different from the idea that reducing malpractice lawsuits would reduce the national debt?

November 29, 2010

Truck Accident Trials and Jury Credibility

by Ronald V. Miller, Jr.

An Illinois court awarded $2.5 million in a lawsuit against a truck driver who admittedly (1) crossed the median strip and hit the Plaintiff and (2) had been driving for 19 hours that day.

Obviously, and the result underscores this point, this is a tough case to defend on liability. If you are Defendants’ truck accident lawyer, what kind of defense do you muster in a case like this? Oh, they always have something it seems. Here, they went for the “everything and the kitchen sink” defense.

First, they claimed his vision was impaired because of diabetes. This is a lot better defense in a passenger car case than it is in a truck accident case. If you are a truck driver driving a big rig truck, we expect you to have your diabetes under control or don’t get behind the wheel of the dangerous weapon that is a truck. Second, and even more improbable, the defendants’ truck accident lawyer also argued that the accident occurred because the truck driver’s tire exploded.

November 23, 2010

Four Loko Lawsuit

by Ronald V. Miller, Jr.

A woman injured in a car accident filed a lawsuit against Four Loko, the makers of the controversial drink that combines alcohol and caffeine. The lawsuit against Four Loco claims that the driver of the car the woman was in had Four Loko before the car accident that injured the Plaintiff. The lawsuit names the driver (presumably the woman’s friend), Four Loko’s manufacturer, and even drags in the convenience store that sold the Four Loko. (The great, great-grandson of the first man to combine rum and coke was not named.)

I am assuming the lawsuit stems from the FDA’s warning last week that Four Loko and other caffeine-alcohol drink manufacturers have used caffeine as an unsafe food additive in the drinks. The FDA left the door open for further action.

November 19, 2010

Maryland Comparative Negligence on the Way?

by Ronald V. Miller, Jr.

The title is a little hyperbolic. But at the Maryland Court of Appeals Rules Committee meeting this morning, a memorandum was issued from Chief Judge Robert M. Bell requesting a study of how other jurisdictions have dealt with the comparative negligence doctrine.

Just a study, mind you. But this memo jumps right to the core.

If the Court were to consider replacing the doctrine of contributory negligence, a common law doctrine in Maryland, with some form of comparative negligence with some sort form of comparative fault:

(a) whether in the Committee’s view, the Court could effect that change by Rule, as opposed to judicial decision.
(b) if the Court were to consider the adoption of such a Rule, what form and content of the Rule should be; and
(c) what related legal principles, such as joint and several liability, would need to be considered concurrently.

Well, thank you for not beating around the bush, Judge Bell. There is also a specific request for the consideration of views of the Maryland Defense Counsel, the Maryland Association for Justice, and the Maryland State Bar Association.

Timely, I wrote about the interplay between joint and several liability and comparative negligence this week. In terms of what position these groups take, I think it will all depend on joint and several liability. If joint and several liability remains unchanged, Maryland plaintiffs’ lawyers would support comparative negligence and Maryland defense attorneys would be obligated to make a big stand in opposition (although that is a lot of show, many self-interested defense lawyers get that more opportunities for plaintiffs’ are more opportunities for them). But if it is a swap of comparative for abolishing joint and several liability, this becomes a more, for lack of a better word, nonpartisan issue where fractions will split off within the interest groups. Continue reading

November 16, 2010

Medical Malpractice Expert Witnesses

by Ronald V. Miller, Jr.

medical malpractice expert witness You are a lawyer looking for an expert in a medical malpractice case in Maryland. You find one you think is perfect. She has firm opinions, a great reputation, and will communicate well with the jury.

You have just one problem. Although your expert is intimately familiar with the care/procedure at issue, she is board certified in a different practice area. (I would like to dedicate this paragraph to basketball analyst Hubie Brooks, who virtually invented this talking in the second person style.)

Malpractice lawyers deal with this quandary all the time and often feel compelled to err on the side of caution and find an expert in the same specialty as the doctor suspected of malpractice. You err on this side because you just know that the defense lawyers on the other side will move to dismiss your case. Best-case scenario, you have a hassle on your hands. Worst-case scenario, you run into the wrong judge who dismisses your case.

This scenario played itself out in a medical malpractice suit filed in U.S. District Court in Greenbelt. Defendants’ malpractice lawyers sought to dismiss the Plaintiffs’ malpractice lawsuit against three of the four defendants because the Plaintiffs’ certifying expert is a pediatrician and not an emergency room doctor or an internist (there was also a pediatrician defendant who had no basis to join in the dismissal).

The Defendants’ argued that having a pediatrician was the exact purpose of the statue in the first place, to heel “hired gun experts from freely roaming outside of their chosen fields, and opining on standards of care that they cannot possibly address, based on the scope of their training and certifications.”

(Hired gun experts. Funny hearing that from defendants’ malpractice lawyers. The experts the defendants’ attorney retained are not hired gun experts. They are just exceptional doctors and great humanitarians, who, like Derek Jeter, would play for free. The hundreds of thousands of dollars they make testifying is a mere byproduct of their excellent work.) Continue reading