Maryland Injury Law Center

May 23, 2011

New Lead Paint/Harmless Error Opinion

Big win for lead paint plaintiffs today in Maryland Court of Appeals as the court ordered a new trial after a jury verdict for the landlord.

Jury instruction error in lead paint case not harmless error: new trial

In Janay v. Wlikowsky, the landlords’ attorney questioned the Plaintiff’s grandmother whether she had ever notified the landlord about flaking and peeling paint in Barksdale’s home. Although they do not point to the grandmother or any “contributory negligence” by the family (not that there can be contrib but you get the idea), the landlords’ attorney sought and got a jury instruction showing that a person’s failure to report flaking paint to the landlord is evidence of negligence. The grandmother’s negligence would not be because of the child anyway because she could be a substantial contributing cause to the harm and the child could still recover against the landlord.

After a defense verdict, the Maryland Court of Special Appeals agreed that this is a flawed jury instruction. But the CSA affirmed the trial court’s verdict because they found the error to be harmless.

The Maryland Court of Appeals rejected Plaintiff’s lead paint attorneys’ theories that a presumption of prejudice should be afforded to lead-poisoned children and their contention that a defective jury instruction by definition implicates due process. (Both parties presented novel but rejected theories. The defense argued that it somehow mattered that the landlord’s lawyer did not argue the grandmother’s negligence in closing.) The court listened to these arguments but did find that under these facts, the error is not harmless. I can’t think that was a hard call. The jury’s thinking they can blame the grandmother creates a whole new lens to look at the case, no matter how they find.

It is easy to imply in a case like this that the Plaintiff’s attorney did not have the jury. Reading between the lines, I’d be willing to bet this jury would have given a defense verdict even without the error. But it is important to remember this is a matter of speculation. Maryland Rule 5-606 strictly limits a court’s ability to inquire post-verdict into “the sworn juror’s mental processes in connection with the verdict.” So you can’t “unbake” the jury verdict by asking them “Hey, would this have made a difference?” There will never be a tangible proof of prejudice because we cannot read the minds of the jurors.

May 23, 2011

Settlement Tactics in Large Personal Injury Cases

by Ronald V. Miller, Jr.

The Lawyers Logbook has an article on truck accident claims by John F. Romano that I really liked. I read a lot of articles by lawyers on handling personal injury cases. Honestly, you have to kiss a lot of frogs to find something interesting or useful. Usually, what you get is a lot of trite advice providing information that you already knew. (If this blog is doing that, tell me and I’ll stop writing immediately.)

John’s article has an “I can feel you have been in the trenches” vibe with really insightful commentary. His favorite from the article was his theory that you have to be on guard of what he calls “the man behind the curtain” strategy.

If you have handled large cases, you know exactly what it is. “Hey, Ron, what are we doing here? Let’s get this case settled. Give me a real demand and let’s get this thing behind us.”

John’s angle on this is that it causes you to drop your guard and assume the case will settle early. I don’t think many good personal injury lawyers drop their guard in this situation and, if they do, they have the make-up speed to get the case back on track. The best plaintiffs’ advocates load before firing – your case should be ready to go when you file the lawsuit, anyway. So, maybe you take a few late drops but it all should work out the way it would have before the bait and switch.

But I think some of the best personal injury lawyers get tripped up by this tactic differently. The lawyer goes back to the client and says, “If we could get X, that would be a great value for this case. Would you be willing to accept X? The client agrees to X. So the lawyer demands X + 50%. The defendant does nothing with the offer and the case proceeds. The lawyer realizes the whole thing was a ruse and gets back to the business of getting the case ready for trial.

May 18, 2011

“Go To” IME Doctors

by Ronald V. Miller, Jr.

Insurance companies have “go to” doctors for “independent” medical exams. These doctors operate by either (1) the sincere conviction that virtually no one is as hurt as they say they are or, (2) by financial motivation.

My money is typically and cynically on the latter. There are some true believers, but I suspect most of the true believers retrofit their zealotry to match their economic interests. These are doctors who insurance companies name as their experts before they ever speak to them.

It is uncanny. Even in the very worst, most obvious case, they find something — anything — to earn their keep. I was just looking up an IME today where the kid’s knee was just torn up from the floor up. He needs a knee replacement. A tragedy for a young kid. So the expert gives us that. But then says that the one knee will last him a lifetime. EVERY OTHER EXPERT says it will last 10 years.

It makes sense: they don’t have to because they know exactly what the expert will say. We rarely need to depose them because I could write their testimony out for them. The insurance company knows what they will say, I know what they will say, the judge knows what they will say. Like Avon Barksdale said, “The game is the game.”

May 12, 2011

Maryland Insurance Liens in Accident and Malpractice Cases

by Ronald V. Miller, Jr.

Subrogation allows insurers to recover the costs of reimbursing injured insured parties. Virtually every health insurance company involved in a car accident or medical malpractice case in Maryland demands repayment – to varying extents – of the money they have spent and have established various byzantine procedures for dealing with repayment of their subrogation interests. Sometimes, it is the toughest part of resolving any personal injury case.

Understandably, clients are astounded that their health insurance company demands to be paid back for the expenses they have incurred in an accident or medical malpractice claim. They never had to pay back any money their health care provider has paid in the past, including [fill in the blank bad thing that happened] to their family. So why now? The question has an answer but no one ever likes it. “So the insurance company gets paid back and keeps my premiums?” Logically, it is a hard sell.

Continue reading

May 9, 2011

Nursing Home Lawsuits: Are Patients Safer?

by Ronald V. Miller, Jr.

Max Kennerly touches on a topic this week I think is interesting and important. To what extent are plaintiffs’ nursing home lawyers making nursing homes safer?

People hunker down in one of two camps: (1) nursing home lawyers are saving our elderly from being unmercifully abused; or (2) nursing home lawsuits drain so much money from nursing homes that they can’t provide quality service at a meaningful price. As the poets say, the answer probably lies somewhere in the middle and these binary choices don’t do justice to the complexities of the issue.

Anyway, the blog post was precipitated by an article in The New England Journal of Medicine on the impact of nursing home lawsuits on nursing homes. The NEJM recently took a lot of heat from doctors for arguing that medical malpractice tort reform is not helping to reduce costs or improve patient care. On nursing home lawsuits, however, the journal goes in a somewhat different direction, concluding that lawsuits are not making nursing homes safer and that being a “good” nursing home does not provide much insulation from litigation. I’m oversimplifying a complex study, but that is the gist of it.

May 4, 2011

Lawyer Beats Speeding Ticket on Typo

by Ronald V. Miller, Jr.

A lawyer at DeCaro, Doran, Siciliano, Gallagher & DeBlasis, a good Bowie law firm that we have a good deal of respect for that does a lot of insurance defense work, got a speeding camera speeding ticket in Montgomery County. He decided to fight it. The basis? He found a typo, a “(b)” instead of a “(d)” in the Montgomery County law dealing with speed cameras. He won.

May 3, 2011

Malpractice Reform and the Federal Deficit

by Ronald V. Miller, Jr.

Joanne Doroshow from the Center for Justice and Democracy writes a blog post for AOL the Huffington Post arguing that medical malpractice tort reform will increase the national debt.

A few weeks ago, I observed that no one was saying anything new on the subject of tort reform. There is an editorial a week on tort reform but nothing new. The AMA is relentless in what has to be a systematic effort to push new malpractice award limits and other curbs on malpractice lawsuits.

Ms. Doroshow has something new to say. Fundamentally, Ms. Doroshow contends that limitation on malpractice lawsuits will increase our national deficit because hospitals and doctors will lose the incentive to provide the safeguards necessary to protect patients. From this, the increase in injuries and deaths from medical malpractice will increase the societal burden of supporting patients who are brain-damaged, mutilated, or rendered paraplegic. She explains her thinking further:

CBO notes that one study finds such tort restrictions would lead to a .2 percent increase in the nation’s overall death rate. If true, that would be more than 4,000 additional Americans killed every year by medical malpractice, and that’s on top of the hundreds of thousands of additional patients who survive their injuries. How could this possibly be an acceptable trade-off?

It can’t be. Like I said last week, we get no bang for our buck on malpractice reform. In exchange for our end run around the 7th Amendment and for trampling on the rights of people that need justice, we get nothing tangible back economically. Continue reading

April 28, 2011

New Maryland Social Media Evidence Opinion

by Ronald V. Miller, Jr.

The Maryland Court of Appeals tackled a piece of one of the new vexing issues our courts face: dealing with social media. Most of the legal opinions circulating around involve discovery of social media such as Facebook and Twitter in civil cases. The court’s opinion in Griffin v. State deals with a different issue: determining the way to authenticate at trial electronically stored information printed from a social networking site. This is a Cecil County criminal case but the same logic would apply to a civil case so it is a case personal injury lawyers should read.

In this Cecil County case, the Defendant’s girlfriend apparently had a MySpace name of “Sistasouljah” who put an entry on her page that read: “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”. Without going into the details of the case, it suffices to say that this did not reflect well on the Defendant’s case.

For reasons that are unclear, the prosecutor did not authenticate this social media entry through the Defendant’s girlfriend, although she testified. Instead, they tried to use a police officer who, on the stand, put two and two together.

A divided Maryland Court of Appeals disagreed that the officer can authenticate a social media posting because the identity of who generated the profile is unknown. The court’s problem is that just because I put up a Facebook profile claiming I’m Charlie Sheen, it does not mean that I’m Charlie Sheen.

Judge Harrell appreciated the concern of the technical “heebie-jeebies” (yeah, he used that phrase and defined it by footnote) but believes that you can add two and two together under these facts because the heebie-jeebie concerns go to the weight to be given the evidence by the trier of fact. If the post was not the girlfriend’s post, the Defendant should argue that, in Judge Harrell’s opinion.

April 26, 2011

New Maryland Uninsured Motorist Case

by Ronald V. Miller, Jr.

The Maryland Court of Appeals decided today GEICO v. Comer, another appellate case that dives into the Serbonain Bog of whether uninsured/underinsured motorist coverage kicks in when trying to get coverage in an accident under an insurance policy for a vehicle was not in the accident that caused the injuries.

Plaintiff was in an awful motorcycle accident in Calvert County. The Defendant cut in front of the Plaintiff who suffered a myriad of injuries, as is typically the case with motorcycle collisions, including a fractured femur and an open head injury. He incurred over $200,000 in medical bills and suffered permanent injuries. Everyone agrees, an awful case.

April 26, 2011

In Defense of Dan Snyder

by Ronald V. Miller, Jr.

Dan Snyder is easy to mock. I will probably do it in this post. So when he filed his lawsuit against the Washington City Paper for defamation, I instinctively rolled my eyes. So did you. We all did.