Maryland Injury Law Center

August 25, 2008

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

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.

August 20, 2008

Lowering the Drinking Age

by Ronald V. Miller, Jr.

The Baltimore Sun reports that the presidents of the University of Maryland, Towson University, Washington College, Johns Hopkins, Goucher College and Washington College among other schools have signed off on a letter urging Congress to lower the drinking age to 18, saying we need to stop relearning the lessons of Prohibition.

Should We Lower the Drinking Age?

This is crazy to me. But we need the authors of “Freakonomics” to help us sort this out. Drunk driving deaths decreased when the age was increased from 18 to 21. But the 80s also saw a substantial increase in awareness at the same time we were raising the drinking age around the country.

August 18, 2008

Medical Malpractice Minority Tolling of Statute of Limitations Opinion in Montana

by Ronald V. Miller, Jr.

On Monday the Montana Supreme Court ruled in a 5-2 decision that a father’s wrongful death medical malpractice claim on behalf of his 16-year-old son was time-barred.

In Runstrom v. Allen, the plaintiff’ son sustained a broken femur in an ATV accident (I wonder if it was a Yahama Rhino ATV, which had been at the time of this writing the subject of many lawsuits around the country). The ambulance took him to the emergency room in Great Falls where the defendant, an orthopedic doctor, treated him. Plaintiff’s son regrettably died the next day. Plaintiff immediately blamed the doctor and consulted with counsel, but for whatever reason did not pursue a case.

Almost 4 years later, the plaintiff read an article in the Great Falls Tribune reporting on an administrative proceeding against the doctor; the article referred to a peer review report and some of his former patients, whose names were not publicly available. The plaintiff believed that his son was one of the unnamed patients, and after reviewing the documents, filed a medical malpractice claim with the Montana Medical Legal Panel.

August 14, 2008

Connecticut Supreme Court’s Ruling Insurance Coverage for Emotional Distress Claims

by Ronald V. Miller, Jr.

Last week, I wrote a recent Missouri Supreme Court opinion that found that a driver could recover emotional damages in a lawsuit against the parent of a child killed in a truck accident. Today, I found Taylor v. Mucci, a Connecticut Supreme Court issued on Tuesday that reaches a different conclusion in a slightly different context that involves the interpretation of “bodily injury” in an insurance policy.

On Christmas Eve in 2004, the Plaintiff’s minor son, Andrew, was struck by a car driven by the Defendant. Andrew’s case settled but Plaintiff maintained a negligence claim for the emotional distress suffered having witnessed the accident.

At the time of the accident, the Defendant had a 100/300 insurance policy with Metropolitan Property and Casualty Insurance. The trial judge ruled in favor of the defendant, finding that the insurance policy did not cover claims for bystander emotional distress.

August 14, 2008

Wyeth v. Levine – August

by Ronald V. Miller, Jr.

The Wall Street Journal has a good article online about the preemption battle that is being waged the FDA’s bureaucrats in the courts and in Congress.

The last line of the article says that “Some drug companies are telling plaintiffs’ lawyers that if they settle their cases now, they won’t pay as much to the plaintiffs as they would have six months ago, before the Supreme Court announced that it would hear the Wyeth case. A lawyer negotiating a settlement with one drug maker said company executives told him it wants the ‘Wyeth discount.'”

I don’t think many cases will settle for a “Wyeth discount” because both sides seem to think they will win. I cannot imagine how the court could find that there is a conflict between state and federal law in drug cases because I think federal labeling requirements create a floor for state tort claims, not a ceiling.

August 13, 2008

Is Cheating on Your Wife Relevant in Personal Injury Cases?

by Ronald V. Miller, Jr.

The California 2nd Court of Appeals issued an interesting opinion addressing the question of just how much of a plaintiff’s personal life is fair game of cross-examination in Winfred D. v. Michelin North America.

(Random comment: Can we all use first names where there are the remotest of privacy issues in question like this court does? If you are killed and your family brings a wrongful death claim or even if you are a doctor accused of medical malpractice, should someone’s Google legacy really be their name in a legal case that might include personal details? Who opposes this?)

Plaintiff suffered a catastrophic brain injury when his tire split while driving a cargo van. Plaintiff’s treating doctors testified that the accident left the Plaintiff, a college graduate, with the functional skills of a 4th grader. One of his doctors testified that Plaintiff was “incompetent” to give testimony in that “his memory is flawed,” and he says things that he believes to be true which may not be because of his brain injury. Awful, right?

August 8, 2008

Plaintiffs’ Lawyers Just Need to Say No to Some Cases

by Ronald V. Miller, Jr.

The Missouri Supreme Court found last week that a truck driver not involved in a truck accident with another driver can sue for the emotional damages suffered when he saw the dead victim in the other car. I’m not sure the decision is legally wrong. But it would not fly in the court of Moral Justice court.

The Plaintiff is seeking $1,623.57 in medical bills, and past and future lost wages exeeding $45,000. This is a bogus claim alert right there. You shouldn’t lose $45,000 in wages and have such small medical bills in 99.999% of the cases. But here is what is worse: the defendant lost his two-year-old daughter because of his own negligence, which has to be the most awful feeling in the world. His emotional distress from the wreck – albeit his fault – is through the roof. Now he sues. There are some things that we can do in this life that we just should not do.

Oh, wait. It gets worse. In the lawsuit, the Defendant sought and received the following admissions:

August 8, 2008

Settlement of Personal Injury Cases: The New York Times Article

by Ronald V. Miller, Jr.

There is an article in the New York Times today that concludes that it is best to settle most accident, malpractice, and breach of contract claims based on a recent study.

The basis for the conclusion is a study suggesting that defendants made the wrong decision by proceeding to trial, based on the offer and the outcome, in 24 percent of cases, and plaintiffs were wrong in 61 percent of cases.

Setting aside that these numbers do not even resemble the numbers of our lawyers – and probably 90% of the personal injury lawyers reading this – these numbers are hardly persuasive in reaching that conclusion. The reason is simple: if you bet on a horse that is a 50-1 shot and the horse has a 10% chance of winning the race; you will lose more often than you win but you are still better off making the bet (i.e., trying the case) than you are not making the bet (i.e. setting the case).

August 7, 2008

New Maryland Judges

by Ronald V. Miller, Jr.

New Maryland judges were announced today:

District Court of Anne Arundel County: Henry Richard Duden, Eileen Anne Reilly, Shaem Charles Patrice Spencer

Circuit Court Prince George’s County: Judge Leo Edward Green Jr.

August 7, 2008

New Bankruptcy Case Every Accident and Malpractice Lawyer Should Know

by Ronald V. Miller, Jr.

The 11th Circuit Court of Appeals decided whether a debtor’s claims for legal relief that arose after the confirmation but before the completion of his plan to pay creditors are property of the estate, under Chapter 13 of the Bankruptcy Code.

Here, after the debtors’ joint Chapter 13 plan was confirmed, the joint-debtor husband was involved in a car accident and suffered personal injuries. The bankruptcy court approved the $25,000 claim against the at-fault driver. Debtors then sought authority to settle the uninsured motorist claims arising out of the car accident without further approval from the bankruptcy court because the car accident happened after the confirmation, and the claims vested in the debtor and were not subject to the bankruptcy proceedings.

The court addressed two distinct issues: (1) whether the husband’s underinsured-motorist benefits are property of the estate, and (2) whether the bankruptcy court erred when it required both the husband and the wife to amend their schedules of assets to disclose the husband’s claim and partial settlement.