Maryland Injury Law Center

January 27, 2007

$1.5 Million Prempro Verdict

A Philadelphia jury found that Wyeth’s hormone replacement therapy Prempro caused an Arkansas woman’s breast cancer and awarded the victim’s family $1.5 million. The jury found that Wyeth was negligent in failing to provide adequate warnings about the risk of breast cancer associated with the use of Prempro.

We expect the jury to return this week with a decision on punitive damages. In Maryland, under Owens-Illinois, Inc. v. Zenobia, 325 Md. 420 (1992), a landmark Maryland Court of Appeals’ opinion, punitive damages in this case against Wyeth for failing to warn about the risks of Prempro would have to be supported by a showing that the conduct of Wyeth was malicious, or the result of evil motive, or ill will. There are no such allegations in the Prempro litigation.

Background on Prempro

January 26, 2007

Prince George’s County Courthouse Fire

by Ronald V. Miller, Jr.

A fire broke out at the Prince George’s County courthouse on Wednesday, destroying a large section of the 126-year-old building. It damaged two floors of the courthouse. The old courthouse is connected to a modern wing by a series of corridors.

This is the second time the courthouse has been on fire in a little over two years. The P.G. Courthouse was gutted by fire in November 2004, just months before they scheduled the courthouse to open after a $25 million renovation. It is amazing this happened again. No word yet on the cause of the fire.

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January 24, 2007

Virtual Mock Juries and Online Focus Groups

by Ronald V. Miller, Jr.

Evan Schaeffer’s Illinois Trial Practice Weblog has a link to a company that provides online mock juries. I find the idea fascinating. Evan correctly points out that a virtual mock jury does not give the lawyers the benefit of the give-and-take argument among jurors meaningful to the process. I also think you lose something using jurors with different demographics. If a lawyer will try a case in Baltimore City, the opinion of a woman in Omaha might not be helpful. In fact, that all the jurors are “Internet savvy” might make them unrepresentative of certain jury pools. Still, for the $1500 cost (goodness this is a lot more in 2019), I can see where some lawyers looking for information on how jurors might respond to certain issues might gain some enjoy this process.

One thing is for sure: the Internet will continue to change the practice of personal injury lawyers in ways that we cannot contemplate.

2019 Update: We used an online focus group for an upcoming trial. You just present the sterile information to them and see where they run with the evidence. I can’t remember the cost, but I thought it was ridiculous. But the process made sense for this case. It provides meaningful insights into how jurors in that same jurisdiction are likely to approach the key issues in your cases, which gives you usable information about your strengths and vulnerabilities. Jury focus groups are also good at spitting out the statistical data that I love. Do men like the case more than women? Is the ideal juror older or younger? There are is just a ton of summary type data that can give you a real insight into not only the issues that matter but who you want on your jury panel.

January 19, 2007

Consumer Reports Retracts Article on “Failed” Car Seats

by Ronald V. Miller, Jr.

Last week, I wrote about the Consumer Reports article on failed infant car seats. As I wrote the post, my wife was spending a few hundred dollars on new car seats for our 3-month-old twins. Sure enough, Consumer Reports retracted the article this week after receiving data from the National Highway Traffic Safety Administration who reported the car seats did well at the correct impact speed.

In their tests, Consumer Reports simulated impacts at over 70 miles an hour instead of simulating impacts at 38 miles an hour. I thought it was probably silly to buy new car seats, particularly given the data offered on the side impact risk to infants. But how can you argue against taking the safest course for your kids? You can’t. Now, if you are a lawyer out there considering a class action against Consumer Reports, you have your first client. I’m kidding, that would be a frivolous lawsuit. But do not be surprised to see one.

Speaking of frivolous lawsuits, a personal injury attorney announced in a news conference in California that he was filing a wrongful death case on behalf of the family of a 28-year-old woman who died in a water-drinking contest on a radio show. The attorney said the wrongful death suit would name the radio station as the defendant, presumably for holding the contest. I do not think this is a meritorious case nor do I think it helps the cause of personal injury lawyers and their clients. I will offer more thoughts on this case this weekend.

January 18, 2007

The Impact of an Attorney Settling or Receiving a Verdict on a Property Damage Claim on Plaintiff’s Personal Injury Claim in Maryland

by Ronald V. Miller, Jr.

I received an email from a personal injury lawyer in Baltimore last night asking about a liability dispute case the lawyer has. I thought I would respond to him in today’s blog.

This lawyer’s client filed suit pro se for his property damage claim, which will be heard next month in Baltimore City District Court. The lawyer knows that you can settle a property damage claim and later sue for bodily injuries. See Maryland Insurance Article Section 12-306(2). So the lawyer’s preference is to stay out of the property damage case and let the client move forward on his own.

But there is a res judicata effect to a judgment on the merits of the property damage case. If the client gets a verdict in the property damage case, it will bar his personal injury case (assuming there is no jurisdictional barrier to prevent the plaintiff from bringing all of his claims in the property damage case).

January 8, 2007

The Lawyer’s “What Happened Next?” Direct Examination Question

by Ronald V. Miller, Jr.

When I try a case with another lawyer (usually my partner, Laura Zois, if we are trying a large case), I always want to do the opening statement and direct examination of our client because I believe these are the most important components of a trial. Particularly the opening statement. I remember once seeing data that said the opening decides 90% of cases. I do not believe it is actually this high, but that number has always stuck in my head.

It is a brilliant marriage because Laura believes you win by cross-examining the defendant’s expert and delivering an effective closing statement. When we have been successful in trying a case, we both claim (to ourselves) credit for the victory. It works out great.

I will blog more over the next month about opening statements and direct examinations, starting today with direct examinations. I was looking today at Ralph Adam Fine’s The How-To-Win Trial Manual (Juris 3d rev. ed. 2005) and found an improvement I need to make in my direct examinations.

January 5, 2007

Infant Car Seats and Broadside Crashes: Test Results from Consumer Reports

by Ronald V. Miller, Jr.

Consumer Reports announced today that car seats for infants often cannot withstand the impact of vehicle accidents when a vehicle strikes its side. Of the models tested in simulations of such impacts, ten failed, some of them “disastrously,” according to the magazine’s February issue.

The car seats are rear-facing models that are required in Maryland for infants up to 1-year-old or about 22 pounds. The law requires car seat manufacturers to test the seats for head-on accidents, but not for broadside crashes, which kill about 30 infants a year in the United States.

As I write this post, my wife is out purchasing new car seats for our almost three month-twins as I expect are a lot of other people in Maryland and around the country today. The irony of all of this is that I love Consumer Reports, to where I rarely buy anything other than their top-rated product. The car seats we have now been made by Britax, a product that Consumer Reports had previously rated, you guessed it, number #1. Britax also failed the test.

January 4, 2007

Destruction of Driving Logs in Truck Accident Case

by Ronald V. Miller, Jr.

I have encountered yet another spoliation issue in a truck accident case where the defendant cannot produce their trucking log that was requested within six months of the incident. Federal regulations require commercial truck drivers to maintain their log for at least six months.

Unlike New Jersey and California, Maryland has no independent tort for negligent or intentional spoliation of evidence. But you can get in Maryland a spoliation instruction stating that the destruction of evidence creates a presumption unfavorable to the spoliator.

Obviously, in fairness to everyone, the best practice regarding evidence in a case is to preserve all potential evidence until they have concluded all legal proceedings. The intentional or negligent destruction or spoliation of evidence threatens the integrity of our judicial system. As I have discussed previously on this blog, many truck drivers do not take these logs seriously. The practice of falsifying truck driver hours is an open secret in the trucking industry; truckers routinely refer to their driving logs as “comic books.” Fines are small and infrequent. The oversight from the Federal Motor Carrier Safety Administration is virtually nonexistent. The FMCSA does not have the staff to closely monitor 700,000 businesses and almost eight million trucks.

December 30, 2006

Chrysler Recalls Cars Because of Faulty Brake System Computers

by Ronald V. Miller, Jr.

Over 60,000 Chrysler vehicles are being recalled to reprogram a brake system computer whose defects may lead to an inability to control the car. Chrysler says the failure occurs when the instrument panel warning lamps illuminate, followed by the loss of various controls in some cars. They report no accidents or injuries yet. Moral of the story: if you are driving a Chrysler and the panel warning lamps illuminate, don’t keep driving your car.

I do not have a lot of information to go off of, but it sounds like Chrysler is doing the right thing here by catching this wave before it really breaks. Plaintiffs’ attorneys have an obligation to point out not only what enormous companies are doing wrong but what they are doing right. The knock on personal injury lawyers has always been the “for a man with a hammer, everything looks like a nail.” I hope this blog fights hard to avoid the assumption that every big business and insurance companies are the nails to our hammer in every case. Chrysler appears to have done the right thing.

2010 Chrysler Recall (another apparently responsible recall of 2009-2010 Dodge Ram trucks and 2010 Chrysler Sebring, Jeep Liberty, Dodge Avenger, Dodge Nitro, and Commander and Grand Cherokee SUVs).

December 28, 2006

Auto Accident Statistics

by Ronald V. Miller, Jr.

A chiropractor soliciting business sent to our law firm these auto accident facts listed below. This chiropractor did not provide any support for his statistics so I pass them along on a for what they are worth basis because (1) they are interesting and (2) they also give you some food for thought as to the best and worst times to grab your kids and take them out on the road.

•More car crashes occur between 3 p.m. and 6 p.m. on Friday than any other time of the week.

•Monday has the most morning rush hour crashes. More reported crashes occur on Monday between 6 a.m. and 9. a.m., followed by the same times on Tuesday, Wednesday, and Thursday.