Prince George’s County Circuit Court Judge William D. Missouri has been elected chair of the National Conference of State Trial Judges, which is the most prestigious organization of general jurisdiction state trial judges in the country. Judge Missouri, a former Prince George’s County prosecutor, has been on the bench in P.G. County since 1988.
New Maryland Insurance Coverage Case
Last month, the Maryland Court of Special Appeals issued its opinion in Maryland Casualty Co. v. Hanson. The issue in the case involved whether multiple exposures to lead-based paint over multiple years constituted multiple occurrences such that the insurance policies would stack or whether the policy’s “limitation of liability” provision defining continuous exposure as one occurrence, thus limiting the amount of insurance coverage. This is a classic long-term toxic exposure case involving many insurance policies. The question is which insurance carrier(s) is/are on the risk and whether the policies stack.
The issue, in this case, is whether the continuous trigger theory applies. The continuous trigger is a relatively recent idea in the law that deals with the problem of repeated injury. Under this theory, a loss occurs for insurance coverage during any time of exposure. It is sometimes called the triple trigger because coverage is invoked in one of three ways: initial exposure, continuing exposure, or by a manifestation of loss.
In the underlying case in Maryland Casualty v. Hanson, the plaintiffs were children exposed to lead paint at a property owned by the defendant on North Central Avenue in Baltimore, Maryland. The exposure to lead-based paint was over six years, spanning several insurance policies.
Baltimore’s Judicial Elections in 2006
Two challengers are running against three incumbent judges in Baltimore City: lawyer Nicholas J. Del Pizzo, III and Maryland District Court Judge Emanuel Brown. These candidates present a formidable challenge to the sitting judges Gale E. Rasin, John C. Themelis, and Barry G. Williams.
In particular, danger is Judge Williams. Why are these sitting judges in danger? Judicial philosophy? Their record on the bench? No, these judges are in danger because they are alphabetically challenged. It would not be the first time in Maryland a sitting judge has arguably lost because of where their last name fell in the alphabet. In recent years, alphabetically challenged sitting Judges Alexander Wright Jr, Rodney C. Warren and Donna Hill Staton have lost close elections.
The only issue judges face of any interest to the general electorate is their position on sentencing. Anne Arundel County Circuit Court Judge Paul G. Goetzke won an election in Anne Arundel County on this issue. But arguably a campaign promise to “be tough on crime” or taking a position on the death penalty is evidence of bias that should disqualify a candidate from sitting in criminal cases. Supreme Court Justice John Paul Stevens told the American Bar Association exactly this in 1996. In Anne Arundel County, the public defenders’ office, I am told, routinely asks Judge Goetzke to recuse himself for this reason.
Inconsistent Verdicts in Maryland
As I showed yesterday, my post today is on a trial we had last month in Baltimore, Maryland. Our client was making a left on a light turning red and hit a car coming in the opposite direction making a right turn. These are tough cases in Maryland, Virginia, the District of Columbia, Alabama, and North Carolina because these five jurisdictions still have contributory negligence as opposed to comparative negligence. As lawyers who do not practice in these jurisdictions will remember from law school, any contributory negligence by the Plaintiff is a complete bar to recovery. But the case was from a Baltimore lawyer who refers out many personal injury cases. When in doubt, we will take a chance when the case comes from one of our loyal referring lawyers.
AIG offered a whopping $5,000 to settle. One of our lawyers, Rod Gaston, tried the case. The jury found both parties negligent. Again, contributory negligence is an absolute bar to recovery. But the jury awarded the Plaintiff $118,000. The judge did what the jury required him to do and entered a verdict on behalf of the Plaintiff for $118,000.
Naturally, AIG’s attorney filed a post-trial motion to revise the verdict.
Maryland Federal Court Ruling on Personal Jurisdiction
The Maryland Daily Record reported yesterday that U.S. District Judge Richard D. Bennett dismissed the complaint filed by prison inmate Byron Smoot against hip-hop mogul Russell Simmons, finding that Simmons and co-defendant Missouri based Kellwood Company lacked the requisite minimum contacts with Maryland that would make them amenable to jurisdiction in Maryland.
As an interesting footnote to this case, in 1999 Smoot began a romantic relationship with the prison psychologist. Smoot and a convicted murderer escaped later that year by climbing over the prison’s fence. They ran into town and made a phone call to the prison psychologist. The men were caught two days later after a massive manhunt. The psychologist pled guilty to an accessory charge for housing the men and was sentenced to six months in prison. HBO had a series that aired years ago called “Oz” where the prison doctor fell in love with one of the inmates. I remember thinking the plot seemed outlandish. But this story sounds equally bizarre.
Maryland Long-Arm in Action
$7 Million Products Liability Settlement in Arkansas
An Arkansas woman whose husband died of smoke inhalation and burns in a camper fire resulting from a refrigerator defect settled her lawsuit against Norcold Refrigerators and a camper dealership for $7 million last week.
The fire’s cause was due to cracked tubing in the camper’s Norcold refrigerator, which resulted in the leaking of flammable hydrogen. Norcold apparently knew of the potential fire hazard as early as 1999 and notified federal officials that it would recall over 40,000 refrigerators. Much like the “FDA approved the drug” defense I have been blogging about in recent months, Norcold contended that it followed federal regulations in conducting the recall.
But the Plaintiff did not receive a recall notice until 6 years after Norcold knew of the defect. Norcold could have found the owners of all the campers by checking their Vehicle Identification Numbers (VIN), but it did not do that until late 2004, too late to get notice out to the Plaintiff. In a tragic irony, the Plaintiff received the recall notice seven months after the accident.
Florida $28 Medical Malpractice Award Overturned Because of Jurors Alleged Misconduct
On Friday, I gave a small diatribe about the foolishness of allowing a doctor’s attorneys, after getting hit with a $28 million medical malpractice verdict, to bring back the jurors to essentially cross-examine them on their answers during voir dire. I explained that Maryland lawyers could not pull this stunt under Maryland law and why I thought the law prohibiting the losing lawyers from bringing back jurors after a trial was prudent. I wrote that I hoped the Florida court would treat this case similar to the approach a Maryland court would take.
This was a jinx. The Associated Press reports that Florida Circuit Court Judge Debra S. Nelson ordered the jurors back to court, questioning them about their answers during voir dire. After two hours of argument after this questioning, the judge threw out the $28 million verdict and ordered a new trial because three of the jurors did not respond affirmatively to the Plaintiff’s malpractice attorney’s question during voir dire about prior lawsuits in which they were involved.
Withheld Lawsuits from Judge
Maryland Injury Law Center: Fact and Opinion Holiday Edition
Happy 4th of July weekend! For the holiday, I am posting some random facts interspersed with a few opinions from the perspective of one Maryland lawyer. I am blithely stealing this format from several authors, most notably John Eisenberg, who writes for the Baltimore Sun sports section.
Fact: There are more fatal car and truck accidents on July 4th than any other day of the year. An average of 161 people die in car and truck crashes nationally. The second worst day for crash deaths is July 3.
Opinion: If you need not be driving around this weekend, don’t. If you are out on the road, drive defensively and be extra vigilant for careless and drunk drivers.
New Maryland Uninsured Motorist Case
The Maryland Court of Appeals last month issued another opinion interpreting Maryland Insurance Code Annotated Section 19-509 in State Farm Mut. Auto. Ins. Co. v. DeHaan.
Here, the Plaintiff’s night got off to a great start: the Baltimore Ravens won their first Super Bowl over the New York Giants, a night everyone in Baltimore remembers. On his way home from a party, Plaintiff stopped at a Shell Station in Baltimore County (near the old Westview drive-in movie theater) in his 1989 Chevrolet Blazer, which was insured under a State Farm automobile insurance policy that had $10,000.00 coverage in Personal Injury Protection benefits (PIP) and $100,000.00 coverage in uninsured motorist benefits.
After arriving at the gas station just after 1:00 a.m., Plaintiff put his keys on the driver’s side floorboard and entered the convenience store portion of the Shell station to make a purchase. Upon returning to his vehicle, Plaintiff found someone sitting in his car. The intruder shot him and drove away.
Juror Misconduct Allegations in Florida Medical Malpractice Case
Rene Stutzman of the Orlando Sentinel reported this week the post-trial tactic of the defendant’s medical malpractice lawyers after a $28 million verdict in Florida. The tactic: if you lose the trial, put the jurors on trial. Defense attorneys say three of six jurors lied during jury selection and are seeking to bring the jurors back into court to explain themselves. As I explain below, I think this request, if allowed, is a blow to the integrity of the jury system we have. This request would be denied under Maryland law.
The medical malpractice action in the Florida stemmed from a minor surgery performed by Dr. Robert Bowles, an obstetrician-gynecologist, for minor incontinence. Plaintiff alleges that Dr. Bowles negligently performed the procedure and, as a result, she cannot urinate naturally. Instead, the Plaintiff must catheterize herself twice a day for the rest of her life. We are talking about serious damages in this case.
An Offer the Doctor Should Have Taken
Still, the Plaintiff’s attorney told reporters that he had offered to settle for $275,000 before trial. Instead, the doctor and his attorneys rolled the dice, and they got hit with a $28 million verdict. Florida has a cap on pain and suffering damages so she will receive nothing resembling $28 million in even the best-case scenario. (But would you take $28 million for this woman’s injury?)
The doctor’s attorney now alleges that three jurors lied during voir dire, claiming that two jurors did not disclose that they were involved in lawsuits and a third did not mention all the lawsuits she had been involved with in the past. Most of these lawsuits, however, involved unpaid debts in which she was a defendant.
Our Experience with This Nonsense
One of our attorneys tried a case recently where the defense lawyers in post-trial arguments claimed juror misconduct. These lawyers contended that although a voir dire question was asked in the present tense, the juror could not have possibly understood that the question was in the present tense because the question was presumably read quickly. The logic of the argument is that although the juror inadvertently answered the question honestly, she had malice in her heart because she must have understood the question in the present tense. Why? Because she could not possibly have understood the question posed “in an instant during voir dire.” The defense attorneys claimed that while she told the truth, she must have meant to lie.
It flabbergasted me. Can you imagine making this argument with a straight face? Calling this argument ridiculous seems drastically understated. The Anne Arundel County trial judge summarily rejected the argument. Defendant’s attorney noted an appeal but shortly thereafter agreed to pay the entire judgment. Why? The claim was just silly. Continue reading