Maryland Injury Law Center

June 9, 2008

False Imprisonment Cases: Median Verdicts and Settlements

The latest edition of Metro Verdicts Monthly provides numbers on false arrest/imprisonment cases.

The median legal false arrest/imprisonment verdict or settlement in Washington D.C. was $25,000.00. Virginia and Maryland have slightly higher median settlements/verdicts of $26,000.00 and $29,000.00, respectively.

I’m surprised the median verdict/settlement is this high because I would think the median case would be one with relatively insignificant injuries except for the inconvenience. There are awful exceptions to that rule, but those awful exceptions would be reflected in the averages—as opposed to the medians.

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.

June 2, 2008

Are High Low Agreements Admissible in Medical Malpractice Cases: Connecticut’s View

by Ronald V. Miller, Jr.

I read over the weekend an interesting decision from the Connecticut Supreme Court that came out last week. The case, Monti v. Wenkert, is an awful medical malpractice case involving a seventeen-year-old girl who presented with significant but subjective symptomology that her GP, physician’s assistant, and the hospital’s emergency room staff dismissed as psychological.

This diagnosis continued even after she collapsed at her doctor’s office with “blueish, purple” lips. The teenage girl died of acute respiratory distress syndrome caused by a viral infection. Like I said: awful. I don’t suspect this case will show up on the cover of Tort Reform Monthly soon. It is anyone’s guess how this case made it to a verdict.

At trial, after the close of Plaintiffs’ case, Plaintiff and one defendant agreed to a high-low agreement not disclosed to the other Defendant. After an adverse verdict, the Defendant kept in the dark appealed his case.

May 13, 2008

Doctor Files Medical Malpractice Lawsuit

by Ronald V. Miller, Jr.

I wrote recently about what I thought was the primary fuel to the tort reform engine: people do not expect to be the victims of an accident that results from the negligence of someone else, and they do not expect to be victims of malpractice. Statistically, they are right.

The odds were in favor of a West Virginia gynecologist when he went in for abdominal surgery last month. But after his surgery, the gynecologist developed an infection and developed severe and debilitating abdominal pain, decreased consciousness, and overwhelming septic shock, requiring mechanical ventilation and additional surgeries. The gynecologist sued his doctors and the hospital for medical malpractice, attributing his injuries to negligence.

Flashback to April 7, 2008, the day before the doctor’s surgery: What would have the doctor said about caps on medical malpractice cases on that day? What would he have said about whether litigation is the answer? Obviously, in this case, he thought litigation was the only answer, filing suit an almost unheard of one month after the alleged negligence.

April 16, 2008

Personal Injury Settlement Finance Loans

by Ronald V. Miller, Jr.

I saw today an interesting blog post by a Massachusetts law firm advocating that Massachusetts ban finance companies that offer loans to people using their personal injury cases as collateral. The post (and comment on the post) argues that by making the loans non-recourse loans contingent on the settlement, these companies get around existing usury laws. Particularly where liability is not an issue and payment is a near certainty, using non-recourse seems like a backdoor around the law.

Mixed Feelings on These Loans

The Lure of Quick Money Is Hard to Resist

March 28, 2008

Does Singulair Cause Suicide?

by Ronald V. Miller, Jr.

The FDA said yesterday it is looking into an association between Merck’s allergy and asthma drug Singulair and suicide. The FDA has received reports of mood changes, suicidal ideation, and suicide in patients who have taken Singulair. Trying to get out on the front of the curve with its package insert, Merck has previously updated Singular’s drug labeling four times to include potential risks of tremors, anxiousness, depression, and suicidal behavior reported in some users of Singulair.

To call Singulair a popular drug is an understatement. Singulair is Merck’s biggest selling drug and one of the world’s top-selling medicines with $4.3 billion in sales. Singulair is also a leukotriene receptor antagonist. These types of drugs have been linked to suicidal ideation and suicide. Two similar drugs, AstraZeneca’s Accolate and Critical Therapeutics’s Zyflo, will also be reviewed by the FDA. Neither of these drugs’ labels include suicide warnings.

Singulair/suicide litigation just might be the next big mass tort. But I doubt it. Unfortunately, 40,000 people a year commit suicide and when you have a drug like Singulair that millions use, some of those people will take Singulair and commit suicide. Some will even take Singulair and commit suicide in a close temporal relationship with the initiation of the drug which really leads people to assume that it must be the drug. But it does not automatically follow that Singulair causes suicide. That remains to be seen and my guess is that Singulair does not cause suicidal behavior. Either way, it is nice to see the FDA is trying to get out in front of potential risk (for once). This is probably a byproduct of the errors that the FDA made with Chantix, where the FDA rushed Chantix – a drug that alters mood – onto the market without fully assessing the suicide risk.

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.

March 7, 2008

Valuing Pain and Suffering Injuries: Per Diem Arguments

by Ronald V. Miller, Jr.

The biggest intangible dealt with by personal injury lawyers in settling or trying a personal injury case is noneconomic pain and suffering damages. These damages defy ready conceptualization and the law provides little in the way of help to jurors who make the final call.

Talking to Juries About Valuing Cases

In many of our personal injury cases we have used per diem reasoning to juries to articulate pain and suffering damages. Per diem arguments give some tangible basis for a pain and suffering award. In psychobabble speak, per diem arguments are a form of anchoring — the cognitive phenomenon of the tendency of people to make estimates with a value in mind. After an anchor is established, there is a bias toward that value to the exclusion of other evidence.

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: