Maryland Injury Law Center

November 16, 2010

Joint and Several Liability: A Law and Economics Defense

Contributory negligence is about as dead of an idea as communism. Maryland is one of five jurisdictions in the United States (along with Virginia, Washington D.C., Alabama, and North Carolina) that have maintained this antiquated notion that being 1% at fault for your own injuries should be a bar to your claim. It is pretty much intellectually indefensible, really.

One big impediment of changing this law in Maryland is a powerful plaintiffs’ lawyer. I will not name this lawyer. (One small hint: he owns a baseball team, has more money than everyone reading this blog post combined, and recently donated a truckload of money again to the University of Baltimore School of Law.)

Why would any plaintiffs’ attorney oppose comparative negligence? The reason is simple: when this issue gets brought up in the Maryland legislature, a legislator always says something to the effect of, “This is not a bad idea. But certainly joint and several liability is a bad idea, too. How about we get rid of both contributory negligence and joint and several liability?” Some states have done exactly this. Other states, like Maryland, have allowed defendants to make contribution claims to reduce the claim of inequity that one defendant should bear the entire loss for an accident that was caused by over one party. Continue reading

November 15, 2010

What Do I Get for My Own Wrongful Death?

by Ronald V. Miller, Jr.

When you die in a fatal crash in Maryland, two claims arise: a wrongful death action and a survival action. Wrongful death claims are for the suffering and economic loss for surviving family members on their own behalf. The survival action is brought by the estate, which means it is actually the only claim the person who died really brings for themselves, in their own name, for their own loss of life.

If you die instantly in a Maryland accident – or there is no proof of conscious pain and suffering – defense lawyers argue there is no survival action or no claim for the decedent for their death.

Maybe I think this stuff through a little too much, which makes me wonder if I can keep this job until retirement. But it just seems ludicrous to me that a person has no cause of action in their own right because we can’t prove they suffered before they died. A trial court in Maryland recently took this a step further, ruling that there is no conscious pain and suffering when a five year-old boy drowns in a pool because there was no “evidence” of conscious pain and suffering. The Maryland Court of Appeals thankfully reversed the trial court on this point because it is obviously more likely that the poor child suffered. (I would love to be wrong about this and I try to make myself feel better by thinking not that long a period. But it does not make me feel better.) Continue reading

November 8, 2010

Misdiagnosis Lawsuits: Verdict Data

by Ronald V. Miller, Jr.

Jury Verdict Research published a study this month that found that medical malpractice plaintiffs receive an average of $983,769 for being “incorrectly diagnosed with a serious illness resulting in fear or unnecessary treatment.” For once, the median is not far behind the average. The median misdiagnosis verdict was $843,362.

To provide a contrast, the study also provided the most recent national data for medical malpractice verdicts. The average medical malpractice verdict in the United States over the last 11 years is $713,457. The median malpractice verdict is $196,500. Approximately 15% of malpractice awards exceed $1,000,000 which inflates the average, although several verdicts are not collectible because of either caps on noneconomic damages or because the doctor did not maintain malpractice insurance.

November 5, 2010

Deposition Examples in Tort Claims (Accident and Malpractice)

by Ronald V. Miller, Jr.

On our website, we have sample depositions in car and truck accident, medical malpractice, and product liability cases. The purpose of these sample deposition transcripts is to help lawyers who are taking a similar deposition and for victims who are trying to certain the type of personal injury deposition questions they can expect.

In personal injury cases, depositions are where the action is. Most cases do not go to trial. The deposition is often the place that makes or breaks settlement value.

Oral Depositions

November 3, 2010

Maryland Jury Trial Threshold Increased

by Ronald V. Miller, Jr.

As expected, Maryland voters overwhelmingly rubber-stamp approved by a two-to-one margin a constitutional amendment to increase the damages threshold for civil jury lawsuits from $10,000 to $15,000. What does this mean? Any case pled in District Court in Maryland for more than $10,000 can be “bumped up” to a jury trial. This recent law increases the amount to $15,000.

There was no real debate on this issue. Pretty much everyone supported it, including small businesses, except for car insurance companies (you can find my overview of this issue here).

My theory on this, that I expressed back in April, is that most voters are like me: if there is a constitutional change on the ballot and you have not heard a debate about it, you figure there is an excellent reason for it. Why? Because given the absence of public debate that would make me more knowledgeable on the topic, I defer to the Maryland legislature and figure they put it on the ballot for a reason. Some people will vote against everything they don’t fully understand because they have a different world view. I suspect that most people who voted for or against the bill last night did so more because of how they view the big picture on these types of questions as opposed to the merits of the bill (which is why I made the rubber-stamping joke).

November 2, 2010

How to Bring Out Pain and Suffering Damages

by Ronald V. Miller, Jr.

Sometimes, I think personal injury lawyers – myself included – subconsciously think we know better than the client in terms of what damages they have that really matter to a jury. But we often get it wrong. More often than not, what is in the client’s heart will also be what has the most impact on a jury. Paul Luvera offers a tip he picked up in Paris of all places on how to get clients to open up about what their actual injuries are and how to present those injuries to a jury. Going back and checking this blog post in 2017, I see the link is no longer available. But the message is important today as when this blog post was first written.

Early in my career as a plaintiffs’ lawyer, we tried a case where I spent an impressive deal of time preparing the witness to testify. Literally 20 minutes before she testified, she told me in a whisper what really upset her about her injuries. She had lots of nieces, and she went from being the fun aunt to the aunt who always complained of being in pain. That translates okay in this blog post. But you had to be there and listen to the way she told the story. It took me two seconds to realize it was genuine. I brought out the story on direct, and it became one theme of our case, and one reason, the jury told me later; they arrived at the verdict they did.

That translates okay in this blog post. I’m sure you get it. But you had to be there, and you had to listen to the way she told the story. It took me two seconds to realize it was genuine to her. It moved me. I brought out the story on direct and it became one theme of our case and a reason; the jury told me later; they arrived at the verdict they did.

October 29, 2010

New CSA Opinion on Discovery

by Ronald V. Miller, Jr.

appellate court opinion Besides Kearney v. Berger, there was another interesting opinion that came down from Maryland’s appellate courts yesterday. The Maryland Court of Special Appeals ruled on an interesting discovery issue in a landlord-tenant case that has implications for Maryland personal injury lawyers.

The underlying case is a dispute between Checkers – I’m assuming it is the fast-food chain Checkers we are talking about – and its landlord. Checkers claimed it exercised an option to extend its lease. The case involved an estoppel certificate and a bunch of other things that I did not fully understand. Checkers sought documents from Gallagher Evelius & Jones (GEJ), a Baltimore law firm that represented the landlord. GEJ claimed a bunch of exceptions to the attorney-client privilege that were quite interesting. But the trial court never got to the merits of the argument because GEJ did not present its opposition to the motion to compel in the proper “set-up format.”
At first, I did a double-take when I saw the proper “set-up format.” There is a proper set-up format? But without knowing it, I think everyone here files their motions to compel in what the trial court saw as the proper setup format: setting up the controversy in the pleadings with the request, the response to the request, and the argument so the court is not required to flip back and forth between documents. I never thought it was a requirement and I’m still not sure that it is. But it seems like an excellent idea to avoid further annoying the trial court – usually rightfully so – that you have already annoyed with a discovery dispute.

October 28, 2010

New Maryland Medical Malpractice Opinion: Walzer Revisited

by Ronald V. Miller, Jr.

The Maryland Court of Appeals affirmed the dismissal of a medical malpractice lawsuit against a doctor for procedural reasons in a 4-3 opinion issued this morning.

Filed in Anne Arundel County, this wrongful death malpractice claim alleged that a dermatologist failed to perform a timely biopsy of a mole that later proved to be melanoma and caused a man’s death.

It is a long opinion. It spends a good bit of time on the “law of the case” doctrine and the unique application of that doctrine in this case where the Court of Appeals grabbed the case before the Court of Special Appeals hears the arguments. Pretty boring. The highlights are, however, of importance to every medical malpractice lawyer in Maryland:

A certificate of merit must include an expert report. Period. But then I think arguably the court left the door a little ajar whether the certificate itself can meet the report. The court writes that there is no evidence how the doctor breached the standard of care, noting that “the certificate does not otherwise meet this requirement….” If it had, would that have made a difference? I’m not sure. The take-home lesson for Maryland malpractice lawyers: never be the lawyer who finds out the answer to this question.
Malpractice lawyers do not need to specifically allege who it was that breached the standard of care if it is otherwise obvious as it is in the single defendant case. The substance is elevated over form, at least on this sub-issue.
The certificate of merit’s job is to block claims that lack merit. A certificate of merit in Maryland need not state the qualification of the expert or certify that the expert spends less than 20% of their time on forensic activities.
Certificates of merit do not have to be expressed in terms of “reasonable degree of medical probability.” An expert’s testimony at trial needs to include the magic language but it does not have to be in the certificate of merit.
Doctors do not waive their rights to challenge a certificate of merit by waiving out of health claims arbitration. The court noted their own silence on whether there could be conditions under which a doctor could waive their rights.
It was not an abuse of discretion for the trial judge to refuse to extend the deadline to file a certificate of merit that complied with Walzer.

Defendant’s lawyer moved to dismiss 18 months after the plaintiffs’ filed their malpractice lawsuit. Why wait 18 months? The court’s finding precipitated the defendant’s lawyer’s motion in Walzer v. Osborne just a month before. Every plaintiffs’ medical malpractice lawyer in Maryland thought Walzer imposed new requirements to file a medical malpractice lawsuit in Maryland. Defense lawyers did too, waiting to make these procedural arguments until just after Walzer. Even Maryland’s high court seems to agree, noting the “not coincidental” timing between the doctor’s motion and Walzer. But Walzer was not the first time, nor will it be the last, that an appellate court calls its ruling existing law and practicing lawyers believe it to be a new law. The Supreme Court does it all the time too. It is the nature of the beast. It is just like having an answer to a math problem in the back of the book and then creating the answer. The only thing that makes this a little different is the court seems to acknowledge that Walzer too a lot of attorneys by surprise when it noted the timing of the doctor’s motion. Continue reading

October 26, 2010

Cell Phones in Maryland Courthouses

by Ronald V. Miller, Jr.

cell phones maryland courthouses The Maryland Court of Appeals has signed off on some modifications to the Maryland Rules. Of particular interest to both lawyers and clients is new Maryland Rule 16-110. This recent rule addresses the crucial issue of our day of whether you can bring a cell phone into court in Maryland. The short answer is yes. The long answer can be found here on page 18.

The rule also addresses whether jurors may bring electronic devices into the jury deliberation room. The concern is whether the jurors use Google to find information to decide the case or give a shout out to friends on Twitter or Facebook about the case during deliberations. The recent rule is clear that jurors may not take cell phones or other electronic devices into the room during deliberations.

I also thought it was interesting that the new rule states that there is no liability to security or court personnel who lose or damage someone’s phone, presumably after the phone is confiscated. It is a minor thing and I doubt that many phones will be lost or damaged under these circumstances. But, as a matter of principle and policy, I wonder if the Maryland Rules should limit tort liability. My view is that while the Maryland high court may rule the roost of what goes on in Maryland courtrooms, courthouses are not sovereign and tort immunities should not be granted so casually.

October 21, 2010

Calling Back Retired Judges

by Ronald V. Miller, Jr.

Earlier this month, I wrote a blog post about Vermont Senator Patrick Leahy’s proposal to allow retired Supreme Court justices to hear cases to avoid 4-4 splits in conflict situations, an issue that is getting attention because of the conflicts that Justice Kagan has for many pending cases.

The Maryland Court of Appeals has been doing this effectively for years, I wrote in the blog post. But while writing a blog post today on underinsured motorist lawsuits involving State Farm, I looked at the Maurer v. Penn National opinion from the court in 2007. I noticed something in the opinion: four of the judges were retired when the opinion was issued. We all follow Maurer as the law (2013 update: not anymore, the legislature stepped in) but only two of the seven judges currently on the court – Judge Greene and Judge Harrell – took part in this opinion that is not yet three years old.

For those of you who are not lawyers, stare decisis is doctrine the Maryland Court of Appeals has applied with vigor: following prior court decisions unless there are very compelling circumstances. It means that a prior ruling being “wrong” is not alone grounds for reversal. I think every court in the country relies on this doctrine, to varying degrees.