The U.S. District Court for Maryland made a noteworthy ruling in Jackson v. Johnson, a Maryland auto tort case that is an interesting case that involves federal diversity law and interesting plaintiffs’ lawyer tactics in finding their preferred venue for the case.
Plaintiffs’ Venue Tactics on Full Display
The Battleground
I was in Florida after Christmas and missed the Maryland Court of Special Appeals’ opinion in Ayala v. Lee, a truck collision case in Anne Arundel County where the plaintiffs were two undocumented aliens who were rear-ended near Annapolis.
After crossing the Bay Bridge, the driver of the plaintiffs’ vehicle stopped the truck and clearly pulled onto the shoulder on Route 50 to fix a problem with the windshield. They put half the vehicle in the grass, off the shoulder. The driver also activated the emergency flashers. In other words, they were doing exactly what they should have done under the circumstances. After getting the wipers fixed, their truck was rear-ended by another truck. The driver, who was with the Plaintiffs, was killed and the Plaintiffs themselves were badly injured.
This is a slam dunk on liability, right? Somehow it goes to the jury on the question of liability. Continue reading
Mark Mixter and James Farmer are two Maryland tort lawyers that just don’t like each other. There are lots of attorneys that don’t like each other. Lawyers are probably more confrontational and competitive than your average bear. If you doubt this premise, go watch a lawyers’ league softball game. So add this natural tendency with the intensity of litigation and people will find reasons to get upset unless you are ultra thick skinned. (One resolution of mine in 2014 is to develop some thicker skin all the way around.)
When these two lawyers fight, it goes deeper and litigation apparently follows. The Maryland Court of Special Appeals recently affirmed the dismissed defamation, libel, slander, and intentional inflection of emotional distress claim that one had filed against the other. You can find the opinion in Mixter v. Farmer here if you are interested. Something about someone writes a letter to other lawyers saying disparaging things or something. I started to read it – mostly out of prurient interest – but I realized I must have something better to do. (So I wrote this point instead?)
This is apparently the second case between these attorneys that has found its way to the Maryland Court of Special Appeals. The last one involved a case that settled, but one of the lawyers became so mad that he sought and received a sanctions order against the other. The appellate court reversed the order of sanctions. So a lot of trees were burned and blood pressure was raised in a battle over a little more than $3,000.
The Maryland high court last week suspended an attorney indefinitely for failure to honor a lien against his client’s case. He has a right to reapply to the bar after 6 months.
Two clients had small injury cases that collectively settled for a little over $25,000. The Food Employees’ Labor Relations Association and United Food and Commercial Workers’ Health and Welfare Fund had a lien on the case. Unlike almost every other non-military lien holder, this union demands full payment of its lien with no reduction for attorneys’ fees.
It is a great strategy by the union to get all of its money back. It is a terrible strategy for helping its workers get compensation for their injuries. Because when most lawyers see these agreements, they run for the hills unless it is a catastrophic injury case. Why? Because it is hard for both the lawyer and the client to get paid. No one wants to take a case where no one walks away happy.
When I first started doing plaintiffs’ work, I couldn’t believe the union could do this. But there is a case square on point.
Anyway, the rest of the story writes itself. He does not pay the liens nor does he interplead the funds. He ignores request after request for payment of the lien for years. He finally puts his own money into it when I guess he realized it just would not go away.
The Maryland Court of Appeals decided this morning Chesson v. Montgomery Mutual, a mold exposure workers’ compensation case. I don’t handle mold or workers’ comp cases. But this case has implications for any tort cases involving the question of what opinions an expert can render at trial. Experts almost always come into play in personal injury cases, but as with anything in law, there are certain rules governing their use.
The claimant sought compensation for exposure to mold that caused neurocognitive and musculoskeletal problems. The trial court in Howard County allowed testimony from plaintiffs’ expert that this mold exposure caused an injury. The expert based his opinion on a differential diagnosis, which means the process of elimination. The Claimant won at trial and the defendant insurance company appealed.
I have a theory. My theory is that under Maryland law, insurance companies have an obligation to their insureds to tender the policy limits in a case as soon as a reasonable, prudent insurance company would realize that they must do so to protect the interests of their client.
My logic is so compelling that I’m ready to bump it up from theory to hypothesis. I’m this close.
There is one flaw in my theory: I can’t get anyone else who is not a biased plaintiffs’ lawyer to agree with me. [2020 Update: read this.] The latest blow is painful because it comes from an opinion from U.S. District Court Judge Paul W. Grimm, who I still think is one of the best judges in the country despite this infraction.
Continue reading
Last month, in Curry v. Trustmark Insurance, a Maryland District Court judge made an interesting ruling in a breach of contract case involving disability payments. The judge granted summary judgment for the defendant. While not a tort claim, this opinion deals with a lot of issues we face as personal injury lawyers regarding disability and the contractual obligation to submit to an IME in uninsured motorist cases.
Here are the basic facts: Plaintiff, a chiropractor, is injured as he is attempting to perform an adjustment on one of his patients. He suffers, ironically I guess, a lower-back injury that he claims causes a permanent disability.
If you want to file a medical malpractice claim in Maryland, jump through 1,000 hoops and, if you skip even one, it might be fatal to your case. In Heavenly Days Crematorium v. Harris Smariga, we look at the loops and the hoops you have to jump through to sue an engineer, architect, or land surveyor in Maryland. It is not 1,000 hoops. But it is plenty. Continue reading
Lots of big opinions coming down from the Maryland Court of Appeals lately. In a tight decision- much tighter than I would have predicted – our high court affirmed long-standing Maryland laws that protect bars and restaurants who serve people they know or have reason to know, will drive drunk, and put our kids at risk. You can tell by the way I loaded that statement how I feel about it.
This was a great case for plaintiffs to bring to test this law. A 10-year-old girl was killed in a high-speed crash on I-270 by a guy who had been served 20 drinks at a Gaithersburg bar. The poster case for why we need to enact dram shop laws.
The Maryland Court of Appeals ruled today that Maryland will not make the leap to comparative negligence, choosing instead to defer to the legislature. The court has the power to change the law; it wants you to know. But it chooses not to do so.
Contributory negligence still inexplicably remains the law of the land in Maryland.
I think contributory negligence is inane, which is why so few states have kept it. Should the court defer to the legislature to make the call? I really don’t know.
Maryland Injury Law Center