Maryland Injury Law Center

November 12, 2007

$15.5 Million Award in Truck Accident Case in Washington

A Washington jury awarded $15.5M last week in a 2004 truck accident case. The injuries, as the verdict suggests, were catastrophic. The auto accident caused the Plaintiff’s blindness. She continues to undergo surgical procedures to reconstruct her facial structure and is still in therapy to aid in her recovery from the brain injuries she suffered.

Given the catastrophic nature of these injuries, the amount of the award is no surprise; however, the party held primarily responsible for her injuries is U-Haul International, Inc. The jurors, apportioning liability as they do in a comparative negligence jurisdiction, found that U-Haul was 67% at-fault for Plaintiff’s injuries while they found the operator of the U-Haul trailer at 33%. The jurors also found U-Haul Company of Washington and the owner of the Texaco station where Mr. Hefley rented the trailer to be negligent.

The jury found that the operator had failed to secure materials in the U-Haul trailer he rented and as a result, an enormous piece of wooden furniture flew out of the trailer and smashed through the plaintiff’s windshield on the driver’s side. The jury found that the lack of instruction and clear warning to customers on how to properly secure materials they were transporting made U-Haul more at fault for the accident then Mr. Hefley’s failure to ensure the stability of the furniture he was transporting.

November 5, 2007

Does Maryland’s Cap on Noneconomic Damages Discriminate Against Women

by Ronald V. Miller, Jr.

I have expressed my disdain for Maryland’s cap on non-economic damages many times on this blog. I read an interesting article in the University of Baltimore Law Forum on an issue to which I have never given much consideration: the impact of the cap on non-economic damages on women. In the article, Maryland Tort Damages: A Form of Sex-Based Discrimination 37 U. Balt. L.F. 97 (2007), University of Baltimore law professor Rebecca Korzec argues that the statutory cap on non-economic damages in Maryland, although facially neutral, has the unintended consequence that it disproportionately disadvantages women.

The essential premise is that limiting non-economic damages disproportionately affects female litigants, because women earn less, largely because they spend more time on unpaid child care around the house. Limiting pain and suffering damages does not allow juries to award fair compensation. Non-economic damage caps solidify bias by rewarding economic losses over non-economic ones, intensifying the gender bias of tort law.

Professor Korzec notes that physical injuries to women may not result in significant damages awards, because of some injuries specific to women. A “soccer mom” who suffers an injury requiring a hysterectomy, for example, may cause little economic harm. Restricting or limiting her non-economic damages may cause an insignificant award of damages.

October 25, 2007

Predicting the Value of Medical Malpractice Cases

by Ronald V. Miller, Jr.

A post on the Illinois Trial Practice Blog discusses a product for malpractice attorneys called>MedMal Reports. This company generates a report based on the payout reported in the National Practitioner’s Data Bank. Reporting of settlements and verdicts is mandatory, so the data is not skewed the way published verdict reports favor those medical malpractice lawyers who seek publication.

The theory is that payouts in these cases are predictable. The question is what variables should the calculus include. Interestingly, the company believes that there is not enough focus on the defendant in valuing medical malpractice cases, citing the following facts:

(1) The number of defendants affects value. The more defendants, the higher the total recovery in medical malpractice cases;

October 23, 2007

New Maryland Assumption of the Risk Opinion

by Ronald V. Miller, Jr.

The Maryland Court of Appeals issued an interesting opinion last week on Maryland’s assumption of the risk doctrine in American Powerlifting Association v. Cotillo.

The Plaintiff, a Prince George’s County police officer, suffered injuries in a powerlifting contest at Patuxent High School in Calvert County, Maryland. He brought a negligence claim in Calvert County against the American Powerlifting Association and the Calvert County Board of Education. Essentially, the Plaintiff claimed that two Patuxent High School students, who spotted the Plaintiff during his effort to bench press 530 pounds, could have prevented his injuries. A Calvert County Circuit Court judge granted the Defendant’s motion for summary judgment because the Plaintiff assumed the risk of his injuries.

The Court of Special Appeals affirmed on all counts except the negligence claim grounded in allegations of improper preparatory instruction of the spotter. The court’s reasoning was that the Plaintiff did not know the spotters were improperly trained, and because their improper training presented an enhanced risk not normally incidental to powerlifting, Plaintiff could not have assumed the risk.

The Maryland Court of Appeals disagreed, finding that the assumption of the risk doctrine barred all of Plaintiff’s claims because any person of normal intelligence knows or should know that one risk inherent in powerlifting is that the bar may fall and injure the participant. Continue reading

October 18, 2007

Allstate Settles Bad Faith Claims in Washington

by Ronald V. Miller, Jr.

The Seattle Post-Intelligencer reports that Allstate Insurance Co. will now fairly compensate thousands of Washington drivers for out-of-pocket medical expenses in a class action settlement.

In 2005, a driver sued Allstate for arbitrarily limiting PIP payments for car accident victims. Allstate used Colossus to determine the average pay rate for a procedure in the geographical area and then paid out only 85 percent of what it found to be the average amount. To be clear, they did not pay what they thought was fair; they paid 85% of what they thought was fair. In an unrelated story, Allstate takes 100% of the premiums from their insured. This practice underscores the insurance company’s motto of taking premiums and denying claims.

If any of this sounds familiar to you, I blogged last week about a former Allstate employee’s testimony that revealed Allstate’s alleged systematic bad faith in a first-party bad faith case in Kentucky.

October 17, 2007

Maryland Court of Special Appeals Vacancy

by Ronald V. Miller, Jr.

Twenty-nine people have applied to fill the at-large vacancy on the Court of Special Appeals left by Judge James A. Kenney’s mandatory retirement. (Parenthetically, most judges continue to sit on the bench after they retire, so can we just drop the mandatory retirement nonsense? The antiquated notion of mandatory retirement at 70 does not fly in 2007.)

There are an impressive number of quality applicants for the vacancy. They are:

Claudia Adeline Barber, a family lawyer in Laurel

October 8, 2007

Do Well Paid Truck Drivers Cause Fewer Truck Accidents?

by Ronald V. Miller, Jr.

I read a study this weekend (my wife was at a jewelry party and my kids were asleep on Friday night) published last year by the Cornell University Industrial & Labor Relations Review, that looked at the correlation between truck driver compensation and safety outcomes.

I am sure the Teamsters embraced the results of the study: increases in truck driver compensation led to fewer crashes. It is unclear whether the improvement in the drivers’ safety records resulted from more careful driving or other related behavioral adjustments, but the strength of the data was remarkable.

Why is there a correlation between compensation and a decrease in these dangerous wrecks? I’m not sure that we can devise a study to prove driver motivations, but it makes sense that the more you are paid, the more likely you are to want to do the things you have to do to keep your job. It seems logical that paying truck drivers well serves as a counterbalance to the lure of engaging in risky behaviors – such as speeding and driving without proper rest – to drive further to make a decent wage. Better paid drivers may cause fewer truck accidents because more pay means better retention, which leads to more experienced operators on our nation’s highways.

October 4, 2007

Required Pre-Suit Mediation in Medical Malpractice Cases

by Ronald V. Miller, Jr.

The Illinois Supreme Court has approved a new plan that requires medical malpractice parties in two Illinois counties to seek mediation before suing in medical malpractice cases.

The hope is that both sides can come to an agreement to resolve the case without the necessity of lengthy (and costly) discovery and trial.

I hope this works, but I think most malpractice attorneys are skeptical. The problem in medical malpractice cases is that it is sometimes difficult to judge the strengths and weaknesses of the case, regarding both damages and liability, until extensive discovery has been done. Plaintiff’s lawyers often fume at the insurance companies’ unwillingness to make offers before they file suit, but this is often the best course for both parties.

October 2, 2007

Maryland Lawyers: New IOLTA Rules in 2008

by Ronald V. Miller, Jr.

On January 1, 2008, the recent IOLTA rules approved by the Maryland Court of Appeals go into effect. There have long been rules for Maryland lawyers to open a trust account for the deposit of client funds that are not purely payments for legal fees or expenses. What had been absent is any requirement as to the nuances of the maintenance of the accounts.

The recent rule, Maryland Rule 606.1, provides detail as to how IOLTA keeps accounts in Maryland. At a quick glance, there is a lot more to be done. But if a bookkeeper handles your account, as I suspect is the case for the vast majority of Maryland lawyers, you are probably already adhering to most of the recent rules. The only rule we do not follow is a notation that requires a listing of the lawyer responsible for the transaction, and, at our firm, it is always the same lawyer.

September 27, 2007

Preemption in Duty to Warn Cases Against Pharmaceutical Companies

by Ronald V. Miller, Jr.

For years, pharmaceutical drug manufacturers have argued that the FDA approval of a drug preempts a duty to warn claim. If this argument had succeeded, FDA preemption would bar claims for injuries caused by a manufacturers’ failure to warn about risks associated with their FDA-approved prescription drugs. President Bush’s administration has long supported this view, although the FDA has often been accused of not minding the store regarding the risks associated with the drugs it approves.

Today, President Bush decided not to spend to political capital on this issue, signing the Prescription Drug User Fee Reauthorization Act (PDUFA), H.R. 3580. This recent law creates new federal safety requirements for pharmaceutical companies. This bill makes crystal clear that regardless of FDA approval, the duty to warn remains with the pharmaceutical companies to adequately provide a meaningful warning about the risks associated with the use of their product. The manufacturer’s duty to warn the ultimate consumer of prescription drugs is limited, as it probably should be, to advising the prescribing doctor of the drug’s potential dangers in the absence of contrary FDA regulations. The FDA maintains the authority to require label changes, but the burden to warn rests with the pharmaceutical company. Pharmaceutical companies can no longer hide behind the FDA’s skirt and argue that FDA approval absolves them of the duty to warn. Drug companies can still argue to the jury that FDA approval is an indicia of the fact that no duty existed.

This is the first time Congress has made any comment on the labeling of pharmaceutical drugs. I have moderate political views and I try very hard not to make this blog about politics. But this bill never gets passed if the Democrats do not take control of both houses of Congress.