Maryland Injury Law Center

August 11, 2009

Preparing Clients for Mediation

Nice Stock Photo of a Mediation

One of the most important things to do to prepare for mediation is to get the client ready for mediation. If you are prepping a client for mediation in a personal injury case, don’t forget to prepare the client for what may come in the defense lawyer’s opening statement.

Some lawyers try so hard to get the mediator on their side, they go overboard in their opening statement to the mediator, outlining the deficiencies in the opposing party’s case (sometimes even attacking the opposing party or his/her personal injury lawyer). This is wildly counterproductive, but some lawyers cannot seem to help themselves.

August 6, 2009

Ameriprise: Battling for “Most Difficult Car Insurance Defendant” Title

by Ronald V. Miller, Jr.

Five years ago, I had never heard of Ameriprise Auto & Home Insurance. Now, I’m seeing more and more Ameriprise claims that involve an Ameriprise insured defendant. Ameriprise does not have a lot of market share in Maryland. But the Ameriprise website claims it is one of the fastest-growing insurance companies in the country. Based on the rise in Ameriprise claims in Maryland, I believe it.

Anyway, the point of this post: the settlement offers that have been coming in from Ameriprise have been worse than awful. Ameriprise has a hardball pre-suit business model. This may or may not work for them.

But the take-home message for Maryland accident lawyers is clear: you will need to sue and try some accident cases against this insurance company to get their attention.

July 28, 2009

Another Plaintiff’s Informed Consent Victory

by Ronald V. Miller, Jr.

In another big informed consent opinion, the Wisconsin Supreme Court in Bubb v. Brusky overturned the trial court and an intermediate Wisconsin appellate court in finding that a doctor had to inform his patient of the treatment options if the medical community is split as to the course. This case strikes me as a cousin of McQuitty v. Spangler, the Maryland high court informed consent opinion that I wrote about yesterday. Every Maryland malpractice lawyer should read this opinion along with McQuitty. But while these are long, complicated opinions, we can distill both down to this: informed consent requires doctors to inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. Period. The take-home message I get from these cases is that defendants’ malpractice lawyers can save the circuitous legal arguments that run afoul of this common-sense notion.

Here, lawyers on both sides agreed that a highly stenosed carotid artery puts a patient at greater risk for having a stroke and that a Doppler evaluation was a reasonable option that would have diagnosed the stenosed carotid artery in this case. But the doctor’s lawyer argued that a consulting doctor has no duty to inform a patient and that there was no apparent consensus in the medical community on whether the standard of care required carotid Doppler ultrasounds to detect artery blockage in patients suffering a TIA.

The trial court agreed, refusing to allow jurors to consider an informed consent claim that the doctor should have advised the Plaintiff of alternative treatment options.

July 27, 2009

Medical Malpractice and Informed Consent in Maryland: New Maryland Court of Appeals Opinion

by Ronald V. Miller, Jr.

Big summer for the Maryland Court of Appeals in personal injury/medical malpractice appellate opinions. The latest in a recent spate of Maryland high court opinions, McQuitty v. Spangler, involves a tragic case of a boy who was born with severe cerebral palsy.

Facts of this Birth Injury Case

The plaintiff’s lawyer argued at trial in Baltimore County that the doctor breached the duty to obtain her informed consent. The allegation is that when he failed to inform the mother, who was hospitalized for a partial-placental-abruption, of risks and available alternative treatments related to material changes in her pregnancy: a second partial-placental-abruption, oligohydramnios, and intrauterine growth restriction. A partial placental abruption is the premature separation of a portion of a woman’s placenta from the interior wall of her uterus. Partial placental abruptions vary in degree but the larger the separation, the greater the risk to the unborn child.

The mother faced an awful choice: either take the baby early or assume the risks that come. No one should have to even have the option of making such an awful decision. The informed consent argument in this malpractice case was that material facts were learned about the degree of separation on which a reasonable person could have made a different decision, and the doctor allegedly did not communicate these facts to the patient.

At trial, which found the doctor did not commit medical malpractice, the jury could not reach a verdict on the question of informed consent. In a second trial held two years later, the jury awarded the family over $13 million. Even in a cerebral palsy case, that is a big verdict in a Baltimore County, a place plaintiffs’ lawyers universally believe is a challenging jurisdiction. Continue reading

July 22, 2009

Washington, D.C. Medical Malpractice Verdicts

by Ronald V. Miller, Jr.

How many medical malpractice trials have there been in Washington D.C. this year? Ummm, let’s see, medical malpractice lawsuits are out of control. I know this because I read the Forbes article repeating the “malpractice lawsuits are running amok and medical malpractice lawyers are the problem” mantra. So how many do you guess? 150? 250? The correct answer, according to a report given by the D.C. Superior Court, is six.

The score is 3-3, three malpractice verdicts for the plaintiff and three defense verdicts. It must be that the juries are handing out whopping malpractice verdicts. We know this because we have heard it so many times before. So, back to the guessing game theme for today, how much did the juries award in these three malpractice jury verdicts? $20 million? $40 million? The answer is $366,775.24. But even that number is misleadingly high. The largest verdict – $131,775.45—was taken away by the trial judge. So the total amount of malpractice jury awards in Washington, D.C. in 2009 is $235,000.

Ladies and gentlemen, I present to you, your medical malpractice crisis.

July 21, 2009

Maryland’s Cap on Damages in Lead Paint Cases

by Ronald V. Miller, Jr.

The Maryland Court of Appeals has two big cases in 2009—a lead paint case and a medical malpractice claim – in which plaintiffs seek a path around Maryland’s non-economic damages cap after big jury verdicts. Plaintiffs lost Round 1 today. [2019 update: And Round 2, Round 3, and so on. This is dead. The nutshell of everything you read below is this: the cap applies across the board to lead paint cases and any other tort case. Exclamation point.]

Green v. NBS

In Green v. NBS, the Plaintiffs’ lead paint lawyers argued that the statutory cap on non-economic damages in Maryland does not apply to personal injury claims allowed by the Consumer Protection Act. Specifically, and creatively, the Plaintiffs claimed that a lawsuit brought under the CPA is not a “personal injury action” and the Maryland legislature did not want a cap on deceptive practice covered by the CPA.

Specifically, the plaintiffs pushed the theory that the Maryland non-economic damage cap applied only to common law tort claims and not a statute like the CPA. The intellectual unpinning of this argument was that the CPA was a statute that was not just about tortious conduct.

I like the argument right? The Maryland high court, however, found that the Plaintiffs’ CPA claim is a personal injury action and that CJ § 11-108 applies to a proceeding in which a consumer asserts a claim for money damages to compensate for injuries sustained because of a Consumer Protection Act violation. The court’s reasoning is, essentially, that if it looks like a personal injury claim and talks like a personal injury claim, then it is a personal injury claim.

The court stated, discussing the general damages cap in C.J. §11-108, that

Both businesses and individuals need insurance for economic protection against suits seeking non-economic damages regardless of whether the lawsuits are based on acts of commission or omission that were torts at common law or are based on conduct that breaches a duty imposed by a statute or by [the Maryland] constitution.

Two More Arguments

The plaintiffs’ lawyers made two other arguments. The first was DOA: the cap violates the Maryland constitution. Again, the Plaintiffs’ lawyers tried to put a CPA spin on the old argument, arguing that a cap on a CPA claim violates the prohibition against the enactment of “special laws” in the Maryland Constitution. But the argument went nowhere with the court.

Finally, the Plaintiffs argued that even if the cap applies; it entitles Plaintiffs to a judgment in the amount of $530,000 rather than $515,000 because the exposure to lead-based paint continued to arise after October 1, 1996. The plaintiffs’ lawsuit and expert testimony were at odds with this contention. Still, I give Plaintiffs’ lawyers an “A” for creative effort in trying to get another $15,000 for their clients.

July 9, 2009

New Maryland Appellate Opinion on Survival Actions

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals found Monday that the trial court erred in excluding the estate of a five-year-old drowning victim from presenting a survival action for conscious pain and suffering of the child while drowning. You can find the opinion here. I first blogged about this case two years ago after an Anne Arundel County jury awarded $4 million in a wrongful death action brought by his parents. The trial court dismissed the survival claim for lack of evidence that the boy suffered before he died.

The lawyers in the case on both sides did exactly what lawyers should do: make the best arguments for their clients. I would do the same. But it is haunting trying to explain this to your client in a wrongful death/survival action case. “No one knows for sure whether your child (or parent or sibling) suffered awfully before he/she died. But the likelihood is high because (fill in your own awful means of death). So we will argue that he/she endured unbelievable suffering that neither of us can ever imagine.” You don’t say it quite like that. But it is awful, and it makes you want to get another job.

After I frame the issue, the client almost invariably wants to win the argument. This is understandable. But the victim’s family finds themselves in the position of rooting that someone who has never met the person they love finds there was horrible suffering before the person’s death. But they hope and pray that it is not true. It is a grotesque paradox.

Defense lawyers have it worse on some level. I don’t know who the lawyer was in this case but what are the chances that the lawyer went home to their spouse at the end of the day proud of their victory in the trial court? “Honey, I won this argument today where I argued this little boy drowned and didn’t suffer because there is no proof the child suffered because he died – I’m so proud of my victory.” Do you think the lawyer does not know that child suffered? Don’t you have to sadly admit this as you explain the story of your “victory”? Again, I’d make the argument if I was the defense lawyer. Then I would go home and shower. Continue reading

May 19, 2009

Humor at Trial

by Ronald V. Miller, Jr.

I read a series of articles in Trial Magazine on cross-examining experts at trial. One article revolved around a joke the lawyer made and how everyone laughed, except for the expert. The moral of the article is that the expert’s failure to laugh at the joke “showed the witness’s pomposity” and was the “key to the jury acceptance of [plaintiff’s] experts and their credibility.”

I’m sure the joke played as the author suggests. But a jury trial is typically not conducive to humor. I’ve seen many efforts at humor—including my own efforts that I thought at the time were good—fail miserably. This is true in a shorter trial where the jury has not had an extended time to warm up to you and relax. Chris Rock would have a hard time being funny in an opening statement.

My advice: if you are not sure it will be funny, leave that club in your bag. Only a funny person can get away with prepared humor during a jury trial. Not sure if you are funny? You are not.

May 12, 2009

Workmen’s Compensation Uninsured Motorist Setoff: New Opinion for the Maryland Court of Special Appeals

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals in a 2-1 decision today affirmed a Frederick County trial court’s grant of summary judgment to Erie Insurance in an underinsured motorist lawsuit.

The nutshell: State Farm paid its $100,000 liability policy in a serious injury car accident case. Plaintiff sought payment under his $250,000 uninsured/underinsured motorist policy with Erie Insurance. Erie claimed that it was entitled to a workers’ compensation setoff of $246,305.66, representing the workers’ compensation benefits the car accident victim received because he was working at the time of the accident. The Plaintiff claimed the setoff should be $27,396.28 because this was the amount of the workers’ compensation lien. Continue reading

May 11, 2009

“Relates Back” Lawsuit Reinstated: New 1st Circuit Opinion and Maryland Law

by Ronald V. Miller, Jr.

The 1st Circuit Court of Appeals wrote a helpful opinion in Morel v. DaimlerChrysler AG for product attorneys who get the name of the defendant wrong when filing just before the statute of limitations expires. The court elevated substance over form in finding the claim “relates back” under federal law.

The page was updated in 2023 to give people the Maryland law on the relation back doctrine they were looking for when they found this page.

What Is “Relates Back” All About?

The “relates back” doctrine refers to a legal principle that allows an amended complaint to relate back to the date of the original complaint for statute of limitations purposes. In other words, if an amended complaint is filed after the statute of limitations has expired, the amended complaint can still be considered timely filed if it relates back to the original complaint.

Under the Federal Rules of Civil Procedure and the Maryland Rules, an amended complaint can relate back to the date of the original complaint if the claims in the amended complaint arise out of the same conduct, transaction, or occurrence as the claims in the original complaint. In addition, the party being sued must have received notice of the claims in the original complaint within the time required by law.

For example, if a plaintiff files a complaint alleging that a defendant negligently caused a car accident but later discovers additional evidence that the defendant was tried to hit the defendant’s car because of road rage, the plaintiff may file an amended complaint adding a claim for punitive damages based on the intentional act. If the amended complaint relates back to the original complaint, the plaintiff may still be able to pursue the claim for punitive damages even if the statute of limitations for that claim has expired.

Facts of Morel v. DaimlerChrysler

This is every parents’ nightmare. A four-year-old boy got into his grandfathered unlocked 1987 Mercedes-Benz 300 SDL. While playing in the car, the vehicle rolled backward, pinning his six-and-a-half-month old brother under the vehicle. The infant died later that day.

The plaintiffs’ product liability lawsuit alleged that the design of the Mercedes-Benz caused the child’s death, alleging a “gallimaufry” of product liability theories against Daimler-Chrysler Corporation. The gist was that the Plaintiffs claimed they defectively designed that the Mercedes and that it lacked adequate warnings. They claimed that the car was defectively designed because it did not have a key shift interlock (KTSI), brake shift interlock (BTSI) or push-button gear shift lever, all of which, plaintiffs alleged, would have prevented the child’s death.

The family filed a wrongful death lawsuit in the United States District Court for the District of Puerto Rico, naming Daimler-Chrysler as the defendant. Daimler-Chrysler moved for summary judgment on the ground that it had never manufactured or sold Mercedes-Benz vehicles, and that the plaintiffs had sued the wrong party. The plaintiffs then amended their complaint to substitute Daimler AG as the defendant, but Daimler AG moved for partial summary judgment, asserting that the adult plaintiffs’ claims were time-barred. The district court applied Puerto Rico’s relation-back rule and determined that the amendment did not relate back, and granted Daimler AG’s motion. The plaintiffs appealed.