Maryland Injury Law Center

March 11, 2009

Defendants’ Truck Accident Lawyer’s Tricks to Avoid Paying Claims

Bob Franklin, a well respected Maryland lawyer who defends trucking companies for Franklin & Prokopik, wrote an article on defendant truck accident cases advising defense lawyers on handling plaintiffs’ truck accident lawyers’ vicarious liability arguments entitled. “But I Didn’t Do It!” Expanding Theories of Vicarious Liability, 58 Fed’n Def. & Corp. Couns. Q.347 (2008). You can’t deny it is a catchy title.

Trucking companies will clearly do anything to avoid compensating victims.

It is a well-written article advising defense lawyers how to combat different theories of vicarious liability conjured up by plaintiffs’ truck accident lawyers. But, obviously, it is also a suitable read for lawyers bringing truck accident cases looking for coverage in the event of serious injuries.

Franklin offers one piece of advice I found interesting:

With rising insurance costs and tight operating ratios for motor carriers and private fleet operators, many have limited excess insurance coverage or none at all. That trend coupled with ever increasing jury verdicts and settlements means there is frequently not enough insurance available to satisfy a potential or actual judgment.Such a scenario may put the fleet operator’s assets at risk if and when there is an excess judgment. Many fleet operators, particularly smaller ones, would do well to take advantage of recent changes in the law, particularly the Graves Amendment, which effectively precludes liability from being imputed simply by virtue of ownership of a vehicle that was involved in an accident. Having a separate corporate entity own the trucks (usually the operator’s most valuable asset) and lease them to the operators may effectively shield the vehicles from potential excess exposure if the proper procedure is followed.

Set up another company to avoid liability. They are telling us how they will get over on us and they are doing it in open view. It is like a shoplifter who looks at the security camera and smiles. Or like this.
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February 11, 2009

Circuit Court Removal by Insurance Companies in Maryland Car Accident Cases

by Ronald V. Miller, Jr.

There is a battle now in the Maryland state legislature about whether Maryland should increase the minimum jurisdictional amount before a defendant can remove a case from District Court to Circuit Court. Defense lawyers for State Farm and Allstate, the two largest auto insurance providers in Maryland, routinely “bump up” District Court claims to Circuit Court if the amount in controversy is more than $10,000.

So what happens is we have an enormous volume of cases where insurance defense lawyers in Maryland are seeking jury trials in cases that do not belong in Circuit Court. Why? Do they think a jury will give them a more fair trial? Ironically, for the jury-hating insurance companies who continue to argue that juries are out of control, trust in juries is at least one reason insurance companies seek jury trials in Maryland auto accident cases (at least in some Maryland counties where juries are more conservative).

But the primary reason insurance companies seek jury trials in smaller auto accident cases in Maryland is because it tortures Maryland auto accident lawyers. The insurance companies do this, not motivated by spite—well not primarily anyway, but because it is a good global tactic. A significant number of auto accident lawyers in Maryland are reticent to sue. The threat of getting a small case going through the Circuit Court ringer is even more daunting to many Maryland injury lawyers. I’m not saying it should be. But it is for those seeking the path of least resistance.

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.

December 11, 2008

Attention Maryland Lawyers Handling Snow and Ice Slip and Fall Cases (Assuming There Are Any Left)

by Ronald V. Miller, Jr.

On Monday, the Maryland Court of Special Appeals decided Allen v. Marriott Worldwide Corporation, a Montgomery County slip and fall on ice case. The case sends a clear message to most ice slip and fall cases will not get to a jury. [2019 Update: The court walked back this law in 2011.]

This is just a slight step forward—the court eradicates a potential factual distinction between black ice in the naked eye and white ice. But after Morgan State University v. Walker, it is hard to expect a good slip and fall opinion from Maryland’s appellate courts absent compelling circumstance where the injury victim really had no choice – defined nearly literally – but to be where he or she was at the time of the fall.

Snow and Ice Slip and Fall Case

November 12, 2008

Advice for Doctors in Medical Malpractice Lawsuits

by Ronald V. Miller, Jr.

Dr. Henry M. Learner, an instructor in Obstetrics and Gynecology at Harvard, writes an article in this month’s OBG Management called “Rebuff Those Malpractice Lawyers’ Traps and Tricks.” Dr. Learner is also the president of Shoulder Dystocia Litigation Consultants, a group that works with defense lawyers, medical malpractice insurance company case managers, and hospital risk managers in shoulder dystocia-related injuries and litigation.

I hate to give up one of my own but I’m sure Dr. Learner is a double agent. Because the advice he gives in this article is obvious (“know the specifics of your case”) or downright counterproductive. One piece of advice is to pull a Sarah Palin: “you don’t necessarily have to play by the rules for answering questions….” That cracks me up. But this one is even better:

Never allow an attorney to bully you in the courtroom or at a deposition. If the attorney begins to use such behavior, call it by its name and demand that it be stopped. Your lawyer will likely have raised the objection before you do; if she does not, protest such inappropriate behavior yourself. Never allow an attorney who is questioning you to raise his voice or speak to you sarcastically or rudely.

November 11, 2008

Wrongful Death Verdicts for Minor Children: A Large Sex Based Difference in Verdicts

by Ronald V. Miller, Jr.

In wrongful death cases, the size of jury verdicts has always tilted in favor of men, which is why many argued that caps on non-economic damages are sexually discriminatory.

In a recent study, Jury Verdict Research offers a different conclusion when comparing compensation in wrongful death claims between minor females and minor males. The median wrongful death of minor females is $1,912,349 but the median award for the wrongful death of minor males is $1,500,000. This gap increases when looking at average wrongful death verdicts. Minor females average $8,648,036 in wrongful death cases compared to an average of $3,173,360 for males.

I can’t explain this data or offer a reason for it.

November 10, 2008

Cancer Misdiagnosis Cases in Maryland: New Malpractice Opinion from Maryland’s High Court

by Ronald V. Miller, Jr.

In January, I wrote about Marcantonio v. Moen, an Anne Arundel County medical malpractice lawsuit that the trial court dismissed on summary judgment. The malpractice lawsuit alleges wrongful death as the result of an OB/GYN’s misinterpreting a sonogram and failing to order sufficient tests to follow up on the woman’s symptoms.

Because of this failure to diagnose, the Plaintiff claims that his wife’s chances of survival went down from 80% to 50%-60%. The Maryland Court of Special Appeals found that there has to be a 51% likelihood that the person would have died but for the negligence. So in this case, she would have to have a 29% chance of living because of the negligence to recover an award. So while she was statistically likely to defeat cancer even with the malpractice, she died.

The post focused on Judge Timothy E. Meredith’s dissent, who contended that the requirement that the decedent’s chance of survival should not—as a matter of fundamental mathematics—revolve around whether there was a 51% decrease in the likelihood the decedent would survive. Because if you had a 90% chance of living and the defendant’s negligence takes you down to 60% and you die, there is a 75% chance you died because of negligence.

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.

September 26, 2008

Colossus and Allstate

by Ronald V. Miller, Jr.

I received this email from a personal injury lawyer in Maryland this morning:

I have an MIA complaint involving Allstate offered the number provided by Colossus and now, of course, refuses to produce any Colossus manuals, etc. Do you have some useful Colossus materials?

I don’t. Maryland’s bad faith law is recent and it makes relevant lines of inquiry from Maryland accident lawyers that before would have been irrelevant including, as this email suggests, how Allstate values first-party uninsured or underinsured accident cases. If any lawyer out there has anything that might be of use that I could pass along, will you drop me an email?

September 23, 2008

Medical Malpractice in Maryland: Too Often, the Names Don’t Change

by Ronald V. Miller, Jr.

I read in the paper today that attorneys Dale Adkins, III and Emily C. Malarkey, both with Salisbury, Clements, Bekman, Marder & Adkins in Baltimore, filed a wrongful death medical malpractice case against an OB/GYN in Salisbury.

We also have a case pending against the same doctor. [2013 Update: we got a million-dollar verdict in that case.] In April, a jury in Baltimore found this doctor negligent in yet another medical malpractice case.

We have previously reviewed and rejected another claim against this same doctor, not because he was not negligent but because of the damages—while significant—were not of the magnitude that would make a medical negligence lawsuit, frankly because of the cost involved of putting these suits together.