Maryland Injury Law Center

April 16, 2008

Feel Good Wednesday

Yesterday, we settled a serious car accident case in mediation that I never thought would settle. The client was looking well beyond the fair value of the case, valuing the claim at $2.1 million (our maximum potential recovery with Maryland cap on pain and suffering damages) and defendant undervalued the claim from the very beginning. Somehow, after over six hours, the case miraculously settled. This is one of those cases I had assumed as an article of faith that it would have gone to trial. It really is hard to tell which cases will trial and which cases will settle.

But even more incredible than the case settling was the fact that the driver defendant came flew up from his home in Atlanta, Georgia for the mediation. Obviously, the court did not require or expect him to be there. After the mediation was over, he gave an articulate two-minute speech apologizing to the plaintiff and his wife for the accident. This guy really put himself out in a way that provided him no benefit, but he came because he thought it was the right thing to do and he wanted to accept responsibility. It was one of those things that really gives you a warm, fuzzy feeling about our fellow man.

One more feel-good story… I got back to my office this morning and a client whose case is pending in Baltimore County Circuit Court sent a note to our lawyers and staff thanking us for our continued hard work. She included with her note what is essentially a $100 tip! We will send the check back to her, but it definitely boosted my spirits when I got here this morning.

April 16, 2008

Personal Injury Settlement Finance Loans

by Ronald V. Miller, Jr.

I saw today an interesting blog post by a Massachusetts law firm advocating that Massachusetts ban finance companies that offer loans to people using their personal injury cases as collateral. The post (and comment on the post) argues that by making the loans non-recourse loans contingent on the settlement, these companies get around existing usury laws. Particularly where liability is not an issue and payment is a near certainty, using non-recourse seems like a backdoor around the law.

Mixed Feelings on These Loans

The Lure of Quick Money Is Hard to Resist

April 9, 2008

Allstate Relents and Produces Internal Claims Documents

by Ronald V. Miller, Jr.

Back in January, I wrote about Allstate’s ongoing war with the state of Florida (and Missouri) in which it arrogantly racked up more than $4 million in fines for refusing to turn over documents they received orders to produce and which the insurance commission requested in Florida. On Friday, Allstate not only produced 150,000 pages of responsive documents it had protected as proprietary, but it made the documents available on Allstate’s website.

In defending some documents, a company spokesperson said that many lawyers misinterpreted the documents that refer to how Allstate deals with claims from other parties, not from policyholders. The Allstate spokesperson said many of the documents, the plaintiff’s personal injury lawyers picked apart, refer to claims-handling practices for car accident claims that have been incorrectly assumed to apply to homeowners’ policies.

If this is true, I see Allstate’s point. Accident lawyers whine about Allstate’s poor offers in third party cases. In Maryland car accident cases, I don’t think GEICO, Progressive, Nationwide, MAIF, or State Farm are making offers that are any different from Allstate’s. But that is not my point. The insurance companies have no obligation in third party cases to make fair offers. Insurance companies can do whatever they want. Therefore, we have lawsuits.

March 28, 2008

Does Singulair Cause Suicide?

by Ronald V. Miller, Jr.

The FDA said yesterday it is looking into an association between Merck’s allergy and asthma drug Singulair and suicide. The FDA has received reports of mood changes, suicidal ideation, and suicide in patients who have taken Singulair. Trying to get out on the front of the curve with its package insert, Merck has previously updated Singular’s drug labeling four times to include potential risks of tremors, anxiousness, depression, and suicidal behavior reported in some users of Singulair.

To call Singulair a popular drug is an understatement. Singulair is Merck’s biggest selling drug and one of the world’s top-selling medicines with $4.3 billion in sales. Singulair is also a leukotriene receptor antagonist. These types of drugs have been linked to suicidal ideation and suicide. Two similar drugs, AstraZeneca’s Accolate and Critical Therapeutics’s Zyflo, will also be reviewed by the FDA. Neither of these drugs’ labels include suicide warnings.

Singulair/suicide litigation just might be the next big mass tort. But I doubt it. Unfortunately, 40,000 people a year commit suicide and when you have a drug like Singulair that millions use, some of those people will take Singulair and commit suicide. Some will even take Singulair and commit suicide in a close temporal relationship with the initiation of the drug which really leads people to assume that it must be the drug. But it does not automatically follow that Singulair causes suicide. That remains to be seen and my guess is that Singulair does not cause suicidal behavior. Either way, it is nice to see the FDA is trying to get out in front of potential risk (for once). This is probably a byproduct of the errors that the FDA made with Chantix, where the FDA rushed Chantix – a drug that alters mood – onto the market without fully assessing the suicide risk.

March 27, 2008

Financial Information on Hired Gun Experts

by Ronald V. Miller, Jr.

Our lawyers have long believed that professional expert witnesses’ financial information, including their tax returns, may be discoverable and admissible for the purpose of showing potential bias. Yesterday, the Alaska Supreme Court joined the list of jurisdictions, including now Maryland, that agree with us.

Noffke v. Perez

Noffke v. Perez is a car accident case. An Anchorage, Alaska jury awarded the wife and husband $54,000 and $24,000 respectively. On appeal to the Alaska Supreme Court, the defendant claimed that it was an error for the trial judge to require her expert witness to produce income tax records. Reading between the lines, after a motion to compel the records was sought and granted, the defendant’s expert did what many hired medical experts do after an order to produce their records: they refuse to testify.

March 26, 2008

Personal Injury Lawyer Websites Disguised as Medical Websites

by Ronald V. Miller, Jr.

Citizens Against Lawsuit Abuse issued a press release today pointing out that, according to a new national study by the Center for Medicine in the Public Interest, many personal injury lawyer websites disguised as health care websites are jeopardizing public health.

Two entities have been mentioned above. Like our local baseball teams in Baltimore and Washington these days, you can’t tell the players without a scorecard.

Citizens Against Lawsuit Abuse sound like a bunch of nice, good folks from someplace like Iowa who want to fight abuses that concern our tort system. Using the word “citizens” helps create that effect. In fact, Citizens Against Lawsuit Abuse is a front for corporate America to limit the rights of product liability, accident, and medical malpractice victims (probably in that order for this group). I could write a lot about their funding, but I think this will suffice: Philip Morris is believed to be one of their biggest contributors. I have not looked at their website, but I will guess that’s not mentioned anywhere on there.

March 24, 2008

Compelling the Defendant’s Address in Auto Accident Cases

by Ronald V. Miller, Jr.

Last week, I received a call from an insurance company (Progressive) asking how many occupants were in our clients’ vehicle in a car accident case our lawyers are handling. Sadly, it appears someone saw our clients get in what was a serious accident, noted the vehicle information, and then pretended that they were involved in the accident. Progressive called me and asked if I can get an affidavit from my clients stating that this person was not in the vehicle. I appreciated where the adjuster/investigator was coming from because he wanted to close his file, but I did not see how it helped my client to provide an affidavit, and I could conjure up scenarios where it would not be helpful to me to help them.

I felt knocked off balance for a second after denying Progressive’s request, losing my moral high ground. But then I quickly asked the adjuster if Progressive will accept service sometimes as I was getting ready to file or if they would require me to spend needless money and jump through the hoops of hiring a process server to serve the defendants individually. Instantly, the order of the moral universe was restored. Wherever you are at this moment, you probably felt a jolt of unknown origin. The lesson, as always: if your game plan is never getting a quarter, don’t ask for one.

Another needless hoop insurance companies make you jump through in an auto accident case in Maryland is getting accurate identifying information for the defendant driver. Once settlement negotiations have failed, the next step is to file a Complaint. But to effectuate service of process, you need the defendant’s address. It is not uncommon for our only information regarding the defendant driver to be a name and insurance information. If his name is Joe Brown or Steve Smith, it can be difficult in car accidents where there is no filed police report, the defendant has moved since the accident or the defendant gave a false address.

March 21, 2008

Legal Malpractice Settlement and Verdicts in Maryland, Virginia and Washington D.C.

by Ronald V. Miller, Jr.

Metro Verdicts Monthly recently provided data on legal malpractice settlements and verdicts in Virginia, D.C., and Maryland.

The median legal malpractice settlement/verdict in Washington D.C. was a whopping $262,500.00. In Virginia and Maryland, the median legal malpractice settlement/verdict was $212,500.00 and $140,211.00 respectively.

What explains the incredible disparity between Washington, D.C., and Maryland and why is Maryland’s median so low? I really have no idea. As always, I find this data very interesting yet useless.

March 10, 2008

MDL Panel Choice of Venue/Choice of Law

by Ronald V. Miller, Jr.

Alexandra D. Lahav, a law professor and editor of the Mass Tort Litigation Blog, has an interesting blog post on choice of law made by the MDL Panel in cases merged for discovery where the applicable law chosen may foretell the outcome of the case.

To receive certification by the MDL Panel, under Rule 23 you must have: (1) plaintiffs so numerous that joinder is impossible (numerosity); (2) class claims which present common questions of law or fact (commonality); (3) plaintiffs’ claims typical of those of the class (typicality); and (4) plaintiffs who are adequate representatives of the putative class (adequacy).

This blog post addresses the third prong, the commonality of law. Sometimes, like the Michigan law at issue in Warner-Lambert v. Kent, with different statutes of limitations, the issue can be a case breaker for the plaintiffs. In MDL cases now, the MDL Panel determines which law will be applied by selecting where to send the case – wherever the case is sent, that forum’s law applies. As Ms. Lahav’s post points out, the MDL Panel is placed in a terrible situation when the outcome of the case is based on transfer and is already known before the transfer.

March 7, 2008

Valuing Pain and Suffering Injuries: Per Diem Arguments

by Ronald V. Miller, Jr.

The biggest intangible dealt with by personal injury lawyers in settling or trying a personal injury case is noneconomic pain and suffering damages. These damages defy ready conceptualization and the law provides little in the way of help to jurors who make the final call.

Talking to Juries About Valuing Cases

In many of our personal injury cases we have used per diem reasoning to juries to articulate pain and suffering damages. Per diem arguments give some tangible basis for a pain and suffering award. In psychobabble speak, per diem arguments are a form of anchoring — the cognitive phenomenon of the tendency of people to make estimates with a value in mind. After an anchor is established, there is a bias toward that value to the exclusion of other evidence.