Articles Posted in Litigation Strategies

A former insurance law student of mine asked this week whether Pittsburgh Steelers quarterback Ben Roethlisberger’s failure to wear a helmet in his motorcycle accident earlier this month would be contributory negligence under Maryland law. Good question! Under the current state of the law, the answer is a qualified no.

The Maryland Court of Appeals addressed this issue 36 years ago in Rodgers v. Frush, 257 Md. 233 (1970). This case involved a motorcycle collision case in PG County where the Defendant sought to introduce evidence at trial from a medical doctor who would testify that the Plaintiff’s failure to wear a helmet exacerbated his injuries from the motorcycle accident. The Plaintiff argued that this evidence was not relevant to contributory negligence because it did not involve the Plaintiff’s or Defendant’s standard of care. The court agreed, and our high court affirmed. The court noted that while Maryland had passed a helmet law three years after the accident, this did not establish a standard of care.

I earlier said the answer is a qualified no because the court said there was not a standard of care that one should wear a helmet. There is now a helmet law in Maryland. But this appears to be dicta, given the core of the court’s holding that failing to wear a helmet does not go to the question of the standard of care.

A related question is whether this evidence could be admitted under the doctrine of avoidable consequences. Plaintiff compliance with the appropriate safety requirements could have avoided similar to the contractual rule of mitigation of damages, the damages that could have been avoided are reduced from the recovery.

The Court of Appeals in Rodgers considered this issue. The court determined that the doctrine of avoidable consequences applied only to conduct that occurred after the tort (again, analogous to the mitigation of damages). The court also cited a North Carolina case with approval that articulated that it also would not apply the doctrine of avoidable consequences because it would (1) not ask jurors to parse damages because this would invite verdicts on prejudice and sympathy contrary to the law, (2) create ‘unnecessary conflicts in result,’ and (3) degrade the law by reducing it to a game of chance. (I frankly do not understand how the latter two factors apply to the doctrine of avoidable consequences.)

The arguments on this helmet issue are very similar to the arguments on failing to wear a seat belt issue, which was addressed in an earlier blog post.

Here is how a few other jurisdictions have addressed this issue:

Continue reading

Voir dire is the selection process in which prospective jurors are questioned and challenged to weed out jurors who may hear the case with an inordinate amount of prejudice and bias that lurks in the thinking of every Maryland juror. In most jurisdictions, the potential jurors are examined either by the prosecutor or, in a civil case, the plaintiff’s attorney for both cause and peremptory challenges.

Unfortunately, in Maryland, voir dire is limited to questions proposed by counsel to be asked by the judge. There have been studies done in the voir dire context that show questioning from a judge inhibits juror candor. What then do Maryland lawyers rely upon in picking a jury? Gut instincts and stereotyping.

Before every trial, I read anything I can get my hands on to get a better idea of what I am looking for in potential jurors who will be receptive to my client. One very early morning, around 1:00 a.m., before a huge trial, I went to my good friend Google and did a search. I found a law review article from Ohio Northern University (have you ever heard of it?) from 1990 that summarized the literature on stereotypes in juror selection.

What Jurors Do You Want?

I disagree with at least a full third of the article, but it is fascinating. Here are some conclusions of the studies/article summarized: Continue reading

Most insurance adjusters tell personal injury lawyers that they need a recorded statement from the lawyer’s client to “firm up liability” or to “assess credibility.” But providing a recorded statement is typically a “loose-tie.” It rarely results in a finding on liability in favor of the accident attorney’s client. Not that this is always the case, but absent special circumstances, the downside far outweighs any benefits.

Defense attorneys use recorded statements to parse sound bites out of context, often giving ample fodder for cross-examination against your personal injury client at trial.

• Here is one fun trick when the third party insurance carrier asks for your client’s recorded statement

A lawyer in Virginia emailed to ask me if failure to wear a child seat is contributory negligence in Maryland?

Setting aside for a moment the abject irresponsibility of this mother who failed to ensure the safety of her child, the answer is no.

Maryland Law

The Maryland Transportation statute that requires the use of child safety seats specifically states that a violation of the statute, while a crime, is “not contributory negligence and may not be admitted as evidence in the trial of any civil action.” Maryland Transportation Code § 22-412.2(i).

Parenthetically, the same logic holds true with failing to wear a seat belt in Maryland. While it may be a crime, a “party, witness, or counsel may not make reference to a seat belt during a trial of a civil action that involves property damage, personal injury, or death if the damage, injury, or death is not related to the design, manufacture, installation, supplying, or repair of a seat belt.” Maryland Transportation Code Annotated. § 22-412.3. In summary, the failure of a personal injury plaintiff to use a seat belt or a child seat is not admissible at trial, although it is a misdemeanor crime (I feel compelled to continue to repeat this).

Concerning the admissibility of the use of seat belts in Maryland, this sword cuts both ways in that personal injury lawyers often want to present evidence that the lawyer’s client was wearing a seat belt to underscore that the injury victim did everything that he or she could to prevent serious injury. But this testimony is also not permissible under § 22-412.3.

Nationally, there is a split of authority whether, under principles of mitigation of damages or as contributory or comparative negligence, an injury victim’s failure to wear a seatbelt can justify a reduction in the number of damages that he or she receives. But even in jurisdictions that allow such evidence, a reduction is usually justified only if the Defendant’s attorney can provide medical evidence to a reasonable medical certainty that Plaintiff’s injuries could have been eliminated or reduced had Plaintiff been wearing a seatbelt when the accident occurred. See DiPirro v. U.S., 181 F.R.D. 221 (W.D.N.Y. 1998). Continue reading