Maryland Injury Law Center

January 18, 2007

The Impact of an Attorney Settling or Receiving a Verdict on a Property Damage Claim on Plaintiff’s Personal Injury Claim in Maryland

I received an email from a personal injury lawyer in Baltimore last night asking about a liability dispute case the lawyer has. I thought I would respond to him in today’s blog.

This lawyer’s client filed suit pro se for his property damage claim, which will be heard next month in Baltimore City District Court. The lawyer knows that you can settle a property damage claim and later sue for bodily injuries. See Maryland Insurance Article Section 12-306(2). So the lawyer’s preference is to stay out of the property damage case and let the client move forward on his own.

But there is a res judicata effect to a judgment on the merits of the property damage case. If the client gets a verdict in the property damage case, it will bar his personal injury case (assuming there is no jurisdictional barrier to prevent the plaintiff from bringing all of his claims in the property damage case).

January 8, 2007

The Lawyer’s “What Happened Next?” Direct Examination Question

by Ronald V. Miller, Jr.

When I try a case with another lawyer (usually my partner, Laura Zois, if we are trying a large case), I always want to do the opening statement and direct examination of our client because I believe these are the most important components of a trial. Particularly the opening statement. I remember once seeing data that said the opening decides 90% of cases. I do not believe it is actually this high, but that number has always stuck in my head.

It is a brilliant marriage because Laura believes you win by cross-examining the defendant’s expert and delivering an effective closing statement. When we have been successful in trying a case, we both claim (to ourselves) credit for the victory. It works out great.

I will blog more over the next month about opening statements and direct examinations, starting today with direct examinations. I was looking today at Ralph Adam Fine’s The How-To-Win Trial Manual (Juris 3d rev. ed. 2005) and found an improvement I need to make in my direct examinations.

January 5, 2007

Infant Car Seats and Broadside Crashes: Test Results from Consumer Reports

by Ronald V. Miller, Jr.

Consumer Reports announced today that car seats for infants often cannot withstand the impact of vehicle accidents when a vehicle strikes its side. Of the models tested in simulations of such impacts, ten failed, some of them “disastrously,” according to the magazine’s February issue.

The car seats are rear-facing models that are required in Maryland for infants up to 1-year-old or about 22 pounds. The law requires car seat manufacturers to test the seats for head-on accidents, but not for broadside crashes, which kill about 30 infants a year in the United States.

As I write this post, my wife is out purchasing new car seats for our almost three month-twins as I expect are a lot of other people in Maryland and around the country today. The irony of all of this is that I love Consumer Reports, to where I rarely buy anything other than their top-rated product. The car seats we have now been made by Britax, a product that Consumer Reports had previously rated, you guessed it, number #1. Britax also failed the test.

January 4, 2007

Destruction of Driving Logs in Truck Accident Case

by Ronald V. Miller, Jr.

I have encountered yet another spoliation issue in a truck accident case where the defendant cannot produce their trucking log that was requested within six months of the incident. Federal regulations require commercial truck drivers to maintain their log for at least six months.

Unlike New Jersey and California, Maryland has no independent tort for negligent or intentional spoliation of evidence. But you can get in Maryland a spoliation instruction stating that the destruction of evidence creates a presumption unfavorable to the spoliator.

Obviously, in fairness to everyone, the best practice regarding evidence in a case is to preserve all potential evidence until they have concluded all legal proceedings. The intentional or negligent destruction or spoliation of evidence threatens the integrity of our judicial system. As I have discussed previously on this blog, many truck drivers do not take these logs seriously. The practice of falsifying truck driver hours is an open secret in the trucking industry; truckers routinely refer to their driving logs as “comic books.” Fines are small and infrequent. The oversight from the Federal Motor Carrier Safety Administration is virtually nonexistent. The FMCSA does not have the staff to closely monitor 700,000 businesses and almost eight million trucks.

December 30, 2006

Chrysler Recalls Cars Because of Faulty Brake System Computers

by Ronald V. Miller, Jr.

Over 60,000 Chrysler vehicles are being recalled to reprogram a brake system computer whose defects may lead to an inability to control the car. Chrysler says the failure occurs when the instrument panel warning lamps illuminate, followed by the loss of various controls in some cars. They report no accidents or injuries yet. Moral of the story: if you are driving a Chrysler and the panel warning lamps illuminate, don’t keep driving your car.

I do not have a lot of information to go off of, but it sounds like Chrysler is doing the right thing here by catching this wave before it really breaks. Plaintiffs’ attorneys have an obligation to point out not only what enormous companies are doing wrong but what they are doing right. The knock on personal injury lawyers has always been the “for a man with a hammer, everything looks like a nail.” I hope this blog fights hard to avoid the assumption that every big business and insurance companies are the nails to our hammer in every case. Chrysler appears to have done the right thing.

2010 Chrysler Recall (another apparently responsible recall of 2009-2010 Dodge Ram trucks and 2010 Chrysler Sebring, Jeep Liberty, Dodge Avenger, Dodge Nitro, and Commander and Grand Cherokee SUVs).

December 28, 2006

Auto Accident Statistics

by Ronald V. Miller, Jr.

A chiropractor soliciting business sent to our law firm these auto accident facts listed below. This chiropractor did not provide any support for his statistics so I pass them along on a for what they are worth basis because (1) they are interesting and (2) they also give you some food for thought as to the best and worst times to grab your kids and take them out on the road.

•More car crashes occur between 3 p.m. and 6 p.m. on Friday than any other time of the week.

•Monday has the most morning rush hour crashes. More reported crashes occur on Monday between 6 a.m. and 9. a.m., followed by the same times on Tuesday, Wednesday, and Thursday.

December 20, 2006

Are Small Cars Safe?

by Ronald V. Miller, Jr.

The New York Times reports on a study by the Insurance Institute for Highway Safety that found, as you might expect, that most small vehicles cannot provide the same safety protection that buyers find in bigger vehicles. Of the eight cars crash-tested, only one received passing scores on both side and rear crash tests. The Toyota Yaris, Honda Fit and Mini Cooper from BMW scored well on side tests but received low ratings on rear tests.

“A good-scoring small and lightweight car is not nearly as good as a good-scoring midsize car — that’s just the law of physics,” Insurance Institute for Highway Safety president Adrian Lund is quoted as stating this obvious fact. “If you’re really shopping for safety, then this probably isn’t your best choice.” Mr. Lund also expressed concern that only the Versa performed well in rear-end crashes because that rear-end car accident is the most common form of auto and truck accident and, while rarely fatal, can often lead to severe neck or head injuries, especially when a larger vehicle strikes it.

Putting all of this in context, the study found that the fatality rate for drivers in multiple-vehicle crashes is higher for subcompacts than for every other motor vehicle category — 83 deaths per million registered vehicles, which is more than double the average for all sizes of cars and trucks.

December 14, 2006

Goldberg v. Boone – Maryland Informed Consent Law

by Ronald V. Miller, Jr.

The Maryland Court of Appeals> overturned a lower court in a 4-3 decision in Goldberg v. Boone, a Montgomery County informed consent case.

Facts of Goldberg v. Boone

Plaintiff underwent a mastoidectomy (an operation on the mastoid bone, which is the prominent bone behind the ear, to remove a cholesteatoma (a rare condition in which skin cells proliferate and debris collects within the middle ear). During the procedure, the doctor accidentally drilled a hole into Plaintiff’s skull.

Sixteen years later, Plaintiff saw the medical malpractice defendant otolaryngologist in Rockville, Maryland. The Defendant doctor determined that Plaintiff had another cholesteatoma and performed an outpatient revisionary mastoidectomy on Plaintiff to remove the second cholesteatoma.

The day after the procedure, Mr. Boone began having trouble reading, remembering names, and recalling words. Subsequent MRI and CT scans revealed hemorrhaging and an opening in his skull.

Plaintiff’ filed a complaint against the subsequent doctor, alleging the doctor committed malpractice by negligently puncturing the Plaintiff’s brain with a surgical instrument during the revisionary mastoidectomy, causing serious and permanent brain damage. The plaintiff also alleged that the defendant’s medical doctor failed to inform him that, because of the hole in his skull, the procedure would be more complex than a standard revisionary mastoidectomy and that there was a risk of sustaining brain damage from the procedure.

The plaintiff alleged that there were surgeons more experienced available to perform the procedure in Maryland than the defendant who had performed only one revisionary mastoidectomy in the past three years.

Jury Award

After two days of deliberations, the jury awarded Plaintiff $113,000 for loss of past and future earning capacity, $355,000 for past and future medical expenses, and $475,000 for non-economic damages. The total award was $943,000.

Maryland Court of Appeals Opinion

The Maryland Court of Appeals’ opinion is long. I think two issues are of particular interest: one just for general interest; the second makes what may not be new law but flushes out the extent to which the decision on what they leave to the jury. The issues are:

(1) Where a retained expert is asked a single cross-examination question about his prior inconsistent testimony when testifying on behalf of one infamous Maryland sniper defendant, does that question warrant reversal of the denial of a mistrial motion?

(2) Whether it is a jury question on informed consent when the defendant medical doctor did not disclose his relative inexperience in performing the procedure and advising the Plaintiff that there were more experienced doctors in Maryland available to perform the procedure. Continue reading

December 12, 2006

Fatal Truck Accidents: Who Should Be Driving These Big Rig Trucks?

by Ronald V. Miller, Jr.

The Dallas Morning News reports that it determined that a quarter of big-rig truck drivers faulted in fatal crashes in Texas from 2000 through 2005 had rap sheets. Their research found that of 953 fatal truck accidents where the driver was determined to be a fault, 25% were convicted of a criminal offense or received deferred adjudication before the fatal wreck. 14% had committed drug or alcohol offenses prior to the fatal truck accident. Ten percent were felons.

I am not sure what to make of this information. I believe that people imprisoned after committing crimes deserve a second chance, as do former drug addicts, for redemption. (Parenthetically, I really cannot figure out why felons cannot vote other than just pure spite. It is not like they will create a voting block. But I digress….)

Then again, I am not suggesting we should allow felons to hold positions that require, for example, knowledge of national security secrets. In the trucking industry, truck drivers are controlling extraordinarily dangerous weapons. If the data shows that ex-convict truck drivers cause an inordinate amount of truck crashes, we should make felony convictions a deal killer for getting a CDL license. I’m not arguing that we have reached that point based on one retrospective study by a newspaper. But I think as a society, it is something lawyers and policymakers should look at.

December 8, 2006

Cross-Examination of the Witness That Cannot Be Cross-Examined

by Ronald V. Miller, Jr.

If you are a personal injury lawyer who regularly tries cases, you have encountered a witness, most likely the defendant’s medical expert, that you just cannot cross-examine even if your technique of cross-examination is sound.

After you walk back to the trial table with your tail between your legs, what do you do? I found an old 1988 ABA article that shows how one lawyer handled in closing argument the witness that the lawyer could not cross-examine at trial.

In this espionage case where “Cannon” allegedly left a container of microfilmed defense secrets in a telephone booth outside the bar that a Russian agent picked up, the defenses are alibi and mistaken identification. The witness is FBI Special Agent O’Rourke who had been staking out the bar and gave an identification of Cannon as the woman he saw in the booth. Here is the transcript of the relevant portion of his closing argument: