Litigation Strategies

May 5, 2009

New Tort Against Medical Malpractice Doctors : Should Courts Force Doctors to Confess Their Own Negligence to Their Patients

University of Baltimore law professor Richard W. Bourne wrote an article published this year in the Arkansas Law Review articulating the theory that there should be an independent tort claim when a doctor destroys evidence or when a doctor fails to disclose to the patient that there has been a breach of the appropriate standard of care that causes injury. Professor Bourne would limit this tort to cases where (1) the wrong is serious, and (2) failing to reveal is intentional.

Professor Bourne also quotes Harvard evidence professor Charles R. Nesson on the inherent problem in making the punishment for spoliation of evidence “assuming that the spoliators … destroy the evidence because it [is] damaging to their case, none of these sanctions puts the spoliator in a worse position than he would have been in had he produced the evidence.”

If the document or evidence shows the worst scenario, the defendant has nothing to lose, except possibly inflaming the jury by destroying the evidence. In Maryland medical malpractice cases, there are ostensibly ramifications with the Maryland Board of Physicians for doctors destroying medical records. But as this blog recently underscored, the Maryland Board of Physicians does not appear to be an effective enforcer of medical ethics.

April 1, 2009

IME Doctors Caught on Tape

by Ronald V. Miller, Jr.

The New York Times has a good article today on Independent Medical Examination doctors, including a doctor referred to by New York injury lawyers as “Doctor Says-No.” We have several IME doctors in Maryland that must be related to him because they have the same last name.

The New York Times would not have written this story if it did not have examples of patients possessing the great weapon of the modern age: “I’ve got it on tape.” The article has examples of doctors who told the patient one thing in the evaluation – which the patient’s taped with their phones – and put the opposite conclusion in the report.

In Maryland, our lawyers are seeing a recent wave of IME doctors replacing the old guard of discredited doctors that juries stopped believing long ago. Below are a few tools to fight for your clients to get fair defense medical exams.

My colleague John Bratt is in the middle of a battle in a Montgomery County case where the expert is refusing to meet the same conditions imposed against this same expert by a judge in another case we had with him in Montgomery County. In another accident case, my colleague Rod Gaston has with the same doctor, they ordered the doctor to produce his financial records. Bizarrely, the insurance company withdrew the doctor, but he still filed an interlocutory appeal. I’m looking forward to finding out who has been paying his legal fees for all of this. My bet: the insurance company.

(Note: I have fixed the New York Times link, as requested. Thanks to all for bringing it to my attention.) Continue reading

December 16, 2008

Closing Arguments: Something to Remind the Jury in Serious Personal Injury Cases

by Ronald V. Miller, Jr.

I recently read a closing argument in another lawyers’ medical malpractice case. In his final thoughts to the jury, he reminded the jurors of what I always remind jurors of when I’m delivering a closing: the memories of the victim will fade for you and for me, but this person will live with these injuries for the rest of his/her life.

The jury got the message and awarded $5.8 million for the wrongful death of a 47-year-old lawyer whose untreated mole turned into a skin cancer that spread to his brain. The jury awarded $3 million in non-economic damages, including $1 million each to Plaintiff’s widow and to his estate and $500,000 each to Plaintiff’s two children.

That portion of the award will be reduced to $812,500 due to Maryland’s cap on non-economic damages in medical malpractice cases with at least two claimants. We expect the plaintiff to appeal [update; they did and lost] arguing the unconstitutionality of Maryland’s cap on damages and the specific portion of the cap that applies to medical malpractice cases.

October 22, 2008

Exact Numbers in Personal Injury Cases

by Ronald V. Miller, Jr.

David Davis, a Massachusetts based jury consultant, offers five thoughts in The Jury Expert (link since removed) on the psychology of how jurors process requests for damage awards I think interests accident and malpractice lawyers.

I found of particular interest his theory that consumers—and by implication, jurors—have a propensity to judge precise amounts of money to be lower in magnitude than similar round prices. The reason is that we use precise numbers for small amounts and round numbers for larger amounts. The example Dr. Davis provides is that a precise number like $325,425 is seen as lower than $325,000 even though obviously the former number is a higher amount.

The implication for personal injury lawyers is obvious: make a request for damages that is a specific amount and back up that amount with some logical foundation. David Ball, another jury consultant that I have relied upon an impressive deal in my damage theories, disagrees with the utility of per diem arguments. But our lawyers often use per diem arguments to come to a specific number and have had a lot of success. This does not prove the efficacy of per diem arguments, but it is hard for trial lawyers to ignore their own experiences of what is successful for them. If I noticed a correlation between wearing a red tie and successful jury verdicts, I’d faithfully keep wearing red ties.

August 25, 2008

Should Companies Be Required to Disclosure Expected Litigation Obligations in Product Cases?

by Ronald V. Miller, Jr.

The Wall Street Journal has an editorial with an anti products liability lawyer spin. No surprise. But what is surprising is that I agree with it.

Considering Enron and other business collapses that left stockholders holding the bag with no actual picture of the company’s financial condition, the Financial Accounting Standards Board wants to tighten standards. One requirement would make companies account for the potential cost of ongoing litigation not just regarding attorneys’ fees but regarding the actual value of the claims. The Wall Street Journal editorial says product liability lawyers will use the information to extort settlements and influence jury verdicts.

I’m not worried about either of those outcomes no matter how many times the editorial uses the phrase “extort settlements.” But I think there is a risk of forcing a defendant to publicly estimate settlement and verdict values because I think it tips off product liability lawyers and creates a floor for the value of any mass tort claim. I also think the editorial is correct, that predicting the trajectory of long and complex litigation is inherently unscientific. Mass tort cases are like the stock market in that their values are always changing. A good trial outcome or even a good expert deposition in an MDL can increase or decrease the value of a case. I’ve been involved with mass torts from both sides and believe knowledge of the true value is rarely known even to the insiders until the advanced stages of the settlement process.

June 24, 2008

Picking a Jury in Maryland

by Ronald V. Miller, Jr.

Voir Dire in Maryland is often a hard experience for injury lawyers on both sides of the aisle because Maryland arguably has the most truncated voir dire process in the country. I’ve tried a lot of cases where both lawyers could glean just a few relevant things from the jurors, we make the obvious strikes and both parties end up not knowing anything about who is on their jury. I’ve written a bit about this problem in a previous Maryland Injury Law Center post.

The Maryland Bar Journal has an article this month by Carolyn Koch of Jury Solutions, LLC offering some tidbits on ways to get more information under Maryland’s limited voir dire process. Two of her suggestions I found to be particularly interesting.

Ms. Koch suggests the following question: If you or someone close to you was injured because of someone else’s negligence, do you think you would sue?

June 3, 2008

Forum Non Conveniens Opinion in Randallstown High School Shootings Case

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals ruled yesterday in Peyton-Henderson v. Evans that Baltimore City Circuit Court Judge George L. Russell, III did not err in transferring a lawsuit from Baltimore City to Baltimore County because of the May 2004 shooting at Randallstown High School.

The ruling covers no new ground, but (sort of) retired Judge Charles E. Moylan Jr. lays out the history of the Maryland case law on forum non conveniens. The court underscored the more modern Maryland trend to focus on “the interests of justice” as opposed to concentrating on convenience of the witness. With a standard as amorphous as “interests of justice” you can be sure that excluding some insane finding, the appeals court will defer to the trial judge. Therefore, I’m surprised this case was initially appealed.

Judge Moylan jabbed lightly at personal injury lawyers who forum shop, quoting now Court of Special Appeals Judge Krauser, “while home may be where the heart is, it is not necessarily where the largest recovery lies.” But, in the next breath, Judge Moylan points out that “is beside the point when dealing with the venue statute rather than forum non conveniens” because Plaintiff is well within his or her right to sue anywhere where the venue is proper.

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.

February 13, 2008

New Maryland Court of Appeals Opinion

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals decided the Titan v. Advance case yesterday. Titan is a case where the Plaintiff alleged negligent repair of a roof that led to the clogging of a roof drain, which then resulted in the Plaintiff’s premises to flood. It is located on Eastern Avenue in Baltimore, Maryland, at Crown Industrial Park. After a three-day trial, the jury found in favor of the Defendants.

As you might have expected, the amount of rain after the job was completed was relevant. Defendants introduced, over objection, a certified copy of the U.S. Department of Commerce’s weather reports from Baltimore-Washington Airport, which reported rain patterns at the airport between the day the roofing work was completed and the date of the flooding off the roof. Plaintiff objected that the weather at Baltimore Washington Airport on that day was not relevant because it was 10 miles from the site.

The Maryland Court of Special Appeals, in an opinion by Judge Arrie W. Davis, found that the documents were relevant because the parties disputed the amount of rainfall. The court further found that despite the length of the documents, the jury could reasonably interpret the recorded rainfall amounts and the court needed no expert opinion to explain the documents. As to the 10 miles between the Baltimore-Washington Airport and the site of the property, the court concluded this went to the weight of the evidence as opposed to admissibility.

February 7, 2008

Voir Dire in Maryland: Follow-up to Judge Sweeney’s Article on Voir Dire in the Daily Record

by Ronald V. Miller, Jr.

Last month, retired Howard County Judge Dennis M. Sweeney wrote an article in a series of articles he is writing for the Daily Record. The latest article discusses voir dire. One point Judge Sweeney makes is that judges have an aversion to proposed voir dire questions that seem to be uniform in every case the lawyer tries. In my last trial, the defense lawyer did not change the names of the parties from the voir dire that they had apparently cut and pasted from the last case. Judge Sweeney writes that they may poison the trial judge to ignore specific voir dire questions—usually put at the end of voir dire consistent with cut-and-paste practices—that may have more merit.

The article also points to dicta in Landon v. Zorn, 389 Md. 206 (2005), a failure-to -diagnose medical malpractice case in which the Plaintiffs appealed a defense verdict. The basis for the appeal was the trial judge’s refusal to ask whether the jury panel had any “preconceived opinion or bias or prejudice in favor of, or against Plaintiffs in personal injury cases in general and medical malpractice cases in particular?” The Maryland Court of Appeals affirmed in a unanimous opinion written by Judge Clayton Greene, Jr. that it is the responsibility of the attorneys to “propound voir dire questions designed to elicit potential bias from jurors, and not to bootstrap a tort reform argument on appeal to a general question inquiring into any potential ‘bias or prejudice’ against plaintiffs in personal injury or medical malpractice cases.” But as Judge Sweeney notes, the court indicated that the lower court may have had an obligation to include a question more tailored to the plaintiff in that case if requested by the attorneys. Judge Sweeney then said that this “places counsel in the position of having to ask the question in many different formulations to hit on the one that may be correct and specific enough.”

But Maryland trial judges love to rush through voir dire as it is, so I shuttered to imagine giving multiple formulations to these judges. I wrote to Judge Sweeney and asked if he had any solution to the Landon v. Zorn problem of having to ask in many formulations to find the most appropriate, noting my concern about how multiple formulations of the same question might risk annoying the court. Judge Sweeney offered this practical response: