Maryland Injury Law Center

September 24, 2008

The Slope Is Rarely So Slippery

In his blog the Art of Advocacy, Baltimore lawyer Paul Mark Sandler suggests a counter to the slippery slope argument: “The ‘slippery slope’ argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow. Most times, a better metaphor would be a staircase with many safe steps along the way.” (No link to this blog because, like many legal blogs, it died a premature death.)

I like this metaphor. My problem with slippery slope arguments is that in real life, slopes are rarely slippery. Looking at this same metaphor through a different lens, George Will wrote earlier this year that life is lived on a slippery slope: taxation could become confiscation; police could become gestapos. But the benefits from both taxation and police make us willing to risk that our judgment can stop slides down dangerous slopes.

Believe me, I know plaintiffs’ lawyers have made the slippery slope argument. I have myself. But it seems like more of an argument I hear from defense lawyers.

September 23, 2008

Medical Malpractice in Maryland: Too Often, the Names Don’t Change

by Ronald V. Miller, Jr.

I read in the paper today that attorneys Dale Adkins, III and Emily C. Malarkey, both with Salisbury, Clements, Bekman, Marder & Adkins in Baltimore, filed a wrongful death medical malpractice case against an OB/GYN in Salisbury.

We also have a case pending against the same doctor. [2013 Update: we got a million-dollar verdict in that case.] In April, a jury in Baltimore found this doctor negligent in yet another medical malpractice case.

We have previously reviewed and rejected another claim against this same doctor, not because he was not negligent but because of the damages—while significant—were not of the magnitude that would make a medical negligence lawsuit, frankly because of the cost involved of putting these suits together.

September 8, 2008

Average Wrongful Death Verdicts for Females: Age Is More Than a Number

by Ronald V. Miller, Jr.

Interesting data from Jury Verdict Research on the median and average values of wrongful death cases where the decedent is female. The overall average compensatory award for wrongful death of an adult female over the last eight years in the United States is $2,990,032 ($1,102,976 is the median).

Age is a big variable when looking at median and average female wrongful death values. The average wrongful death verdict for a female between 18 and 24 is 2,990,032 ($1,102,976 median). For females between 30 and 39, women who are far more likely to have left behind children, the median wrongful death verdict escalates to $5,605,127 ($2,500,000 median). For women over 80, the average wrongful death verdict plummets to $1,314,241 (322,920 median).

I always find it maddening when insurance companies discount the value of human life in wrongful death cases because of the age of the decedent. If you are eighty years old and you are killed, those last 10 years of seeing your kids as adults, your grandchildren coming of age and everything else that comes with it are valuable years. But these numbers, regrettably, show that there is some logic to their thinking for how juries value wrongful death cases.

September 3, 2008

Plaintiffs’ Lawyer Are Committing Fraud and Defense Lawyers are Powerless to Stop It

by Ronald V. Miller, Jr.

The Mass Torts Blog, another defense lawyer blog brought to you by our friends at Dechert, posts on Labor Day about medical screening in mass tort cases. The allegations are basically that plaintiffs’ product liability lawyers are committing fraud when screening clients. Read the post for yourself and tell me that it is not a fair summary of what the post alleges.

It would be nice to have a more moderated voice coming from Dechert, a fantastic international law firm, as opposed to the defense lawyer version of Ann Coulter. But if what the Mass Tort Blog is saying is correct – that many plaintiffs who accepted settlements in the asbestos, silica, fen-phen, silicone breast implant, and welding fume litigations were fraudulent, manufactured claims – where were the defense lawyers to protect the defendants from this fraud?

Obviously, it was easy to make this determination, as Cardozo Law School Professor Lester Brickman had done in his study, which was relied upon in the Mass Torts Blog post. Were defense medical examinations a condition of settlement? Did they just blindly trust the plaintiffs’ lawyers? If this really is the case, shouldn’t we infer that all the defense lawyers who defended these cases committed legal malpractice?

September 2, 2008

‘We Can’t Compete with MAIF’ Complain Maryland Car Insurance Companies

by Ronald V. Miller, Jr.

The Baltimore Sun reports that car insurance companies in Maryland are resisting the Maryland Automobile Insurance Fund’s (MAIF’s) car insurance rate-lowering proposal because MAIF’s plan to lower rates puts the private sector at risk. After a hearing in Baltimore, Maryland Insurance Commissioner Ralph S. Tyler delayed ruling on some insurance companies’ objections to MAIF lowering their rates.

Let me get this straight. Car insurance companies cannot compete with a non-subsidized state-run agency. Was Marx on to something? No, we all saw the Beijing Olympics; capitalism seems to work just fine.

Is this really where we are? Private car insurance companies need protection from competition by this awful company? I’m not sure what the private insurance companies’ arguments are on this issue. The only argument offered by the Baltimore Sun was provided by Hal S. Katz, president of Baltimore-based Interstate Auto Insurance (IAICO). Also specializing in writing Maryland car insurance policies for drivers that have a history of trouble, IAICO complained that MAIF does not enforce its requirement that provides car insurance only to drivers rejected by two private companies.

August 26, 2008

University of Baltimore Law School

by Ronald V. Miller, Jr.

The Wall Street Journal published an article today on law schools gaming the system to improve their U.S. News and World Report rankings. It focuses in part on the rise of the University of Baltimore School of Law, which has risen dramatically under new dean Phillip Closius, including the U.S. News and World Report rankings.

I think everyone has been “gaming the system” except for the University of Baltimore Law School and a few other schools. Now, UB is playing along just like everyone else. As Dean Closius points out, some things that the U.S. News and World Report seeks – like tracking employment better after graduation – help the students and alumni.

The University of Baltimore Law School has been spinning its wheels for years watching other law schools pass it on the food chain. Now Dean Closius steps in and not only talks about change but is making quality changes people can see. (Boy, I hope to be thinking the same thing about President Obama in a few years.) He is intent on seeing the University of Baltimore become powerful, not just in Baltimore, but regionally and nationally. The more amazing thing is that people associated with the law school now believe things are possible that they would not have imagined even three years ago.

August 25, 2008

Should Companies Be Required to Disclosure Expected Litigation Obligations in Product Cases?

by Ronald V. Miller, Jr.

The Wall Street Journal has an editorial with an anti products liability lawyer spin. No surprise. But what is surprising is that I agree with it.

Considering Enron and other business collapses that left stockholders holding the bag with no actual picture of the company’s financial condition, the Financial Accounting Standards Board wants to tighten standards. One requirement would make companies account for the potential cost of ongoing litigation not just regarding attorneys’ fees but regarding the actual value of the claims. The Wall Street Journal editorial says product liability lawyers will use the information to extort settlements and influence jury verdicts.

I’m not worried about either of those outcomes no matter how many times the editorial uses the phrase “extort settlements.” But I think there is a risk of forcing a defendant to publicly estimate settlement and verdict values because I think it tips off product liability lawyers and creates a floor for the value of any mass tort claim. I also think the editorial is correct, that predicting the trajectory of long and complex litigation is inherently unscientific. Mass tort cases are like the stock market in that their values are always changing. A good trial outcome or even a good expert deposition in an MDL can increase or decrease the value of a case. I’ve been involved with mass torts from both sides and believe knowledge of the true value is rarely known even to the insiders until the advanced stages of the settlement process.

August 20, 2008

Lowering the Drinking Age

by Ronald V. Miller, Jr.

The Baltimore Sun reports that the presidents of the University of Maryland, Towson University, Washington College, Johns Hopkins, Goucher College and Washington College among other schools have signed off on a letter urging Congress to lower the drinking age to 18, saying we need to stop relearning the lessons of Prohibition.

Should We Lower the Drinking Age?

This is crazy to me. But we need the authors of “Freakonomics” to help us sort this out. Drunk driving deaths decreased when the age was increased from 18 to 21. But the 80s also saw a substantial increase in awareness at the same time we were raising the drinking age around the country.

August 18, 2008

Medical Malpractice Minority Tolling of Statute of Limitations Opinion in Montana

by Ronald V. Miller, Jr.

On Monday the Montana Supreme Court ruled in a 5-2 decision that a father’s wrongful death medical malpractice claim on behalf of his 16-year-old son was time-barred.

In Runstrom v. Allen, the plaintiff’ son sustained a broken femur in an ATV accident (I wonder if it was a Yahama Rhino ATV, which had been at the time of this writing the subject of many lawsuits around the country). The ambulance took him to the emergency room in Great Falls where the defendant, an orthopedic doctor, treated him. Plaintiff’s son regrettably died the next day. Plaintiff immediately blamed the doctor and consulted with counsel, but for whatever reason did not pursue a case.

Almost 4 years later, the plaintiff read an article in the Great Falls Tribune reporting on an administrative proceeding against the doctor; the article referred to a peer review report and some of his former patients, whose names were not publicly available. The plaintiff believed that his son was one of the unnamed patients, and after reviewing the documents, filed a medical malpractice claim with the Montana Medical Legal Panel.

August 14, 2008

Connecticut Supreme Court’s Ruling Insurance Coverage for Emotional Distress Claims

by Ronald V. Miller, Jr.

Last week, I wrote a recent Missouri Supreme Court opinion that found that a driver could recover emotional damages in a lawsuit against the parent of a child killed in a truck accident. Today, I found Taylor v. Mucci, a Connecticut Supreme Court issued on Tuesday that reaches a different conclusion in a slightly different context that involves the interpretation of “bodily injury” in an insurance policy.

On Christmas Eve in 2004, the Plaintiff’s minor son, Andrew, was struck by a car driven by the Defendant. Andrew’s case settled but Plaintiff maintained a negligence claim for the emotional distress suffered having witnessed the accident.

At the time of the accident, the Defendant had a 100/300 insurance policy with Metropolitan Property and Casualty Insurance. The trial judge ruled in favor of the defendant, finding that the insurance policy did not cover claims for bystander emotional distress.