Maryland Injury Lawyer Blog

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.

We need the authors of “Freakanomics” to help us sort this out. There is no question that drunk driving deaths decreased when the age was increased from 18 to 21. But the 80s also saw a great increase in awareness at the same time we were raising the drinking age around the Country.

I saw a Happy Days episode – filmed in the 70s - where Potsie, Ritchie and Ralph were having a little flea market at Arnold’s and they were selling a driver’s license Ralph billed as “Buy this and drink and drive in all 50 states.” Can you imagine that today? Lou Dobbs' head would explode.

(As luck would have it, the Baltimore Sun also reported today that yesterday morning a statute of Fonzie was unveiled in Milwaukee. Shirley Feeney (Cindy Williams) was on hand. When some crackerjack report asked Ms. Feeney for comment on the opinion of some that it harms Milwaukee’s cosmopolitan image to remind everyone that these mindless television shows were set in Milwaukee, she said: “Who are these people? Let’s get a loudspeaker and drive through the neighborhoods. Why wouldn’t they want to be part of the pop culture as well as the ballet, the opera and other arts?” Statistically, I find the occurrence of these four events improbable: (1) Some reporter taking a hard journalistic angle at this story and asking that question; (2) Ms. Feeney’s answer suggesting we get a loudspeaker and go through the neighborhoods, (3) the writer of the story and his/her editor publishing the quote, and (4) my taking up 175 words with this digression when talking about such an important issue. I think the odds are at least 10-1.)

The federal government forces states to keep their drinking age at 21 years via the National Minimum Drinking Age Act, which mandates that states with a drinking age lower than 21 will lose 10 percent of their federal highway funding. No state can afford this loss.

I’m against lowering the drinking age. I don’t think that because there is a problem with underage drinking that “doing something” is the solution to the problem. Sometimes “doing something” can make a bad problem worse. But these university presidents are smart people. When a lot of smart people who are close to a situation take such a strong position, we would all be foolish not to hear them out.

The Wall Street Journal publishes an editorial bashing the effort in Congress to overturn the Supreme Court’s ruling in Riegel v. Medtronic. Nothing new in the editorial, just a repeat of the policy arguments Medtronic successfully advanced in Riegel.

I found the last line of the editorial of interest:

If Congress really wants to improve the quality of medical products for consumers, it would better spend its energy on reforming the bureaucratic morass that is the FDA.

No acknowledgement was made of the incredible irony of the author’s advocating an organization he calls a “bureaucratic morass” to be the last and only safety net for protection and justice for people who have suffered catastrophic life altering injuries.

In related news, Pharmalot notes that 47 state attorneys generals, former FDA commissioners, members of Congress, constitutional experts and editors of The New England Journal of Medicine have filed their own briefs arguing against preemption in Wyeth v. Levine. I'm not going to read and break these briefs down. But I'm also guess our friends at the Drug and Medical Device Blog are not going to either. But, in an upcoming post, they will break down the DRI amicus brief for the 11th time, this time including an analysis of the suit and tie color schemes worn by the 72 lawyers who wrote the brief (shocking sneak preview: they love it!).

Warning! I'm going off the resevation for just a paragraph....

I watched with great interest the Obama-McCain interviews with pastor Rick Warren at the Saddleback Church in Orange County, California Saturday night. I came away impressed with all three men. I read a few hours ago while eating dinner (and with 3 kids hanging all over me) an editorial by Sally Quinn that sums up my impressions of those interviews about as well as I've ever read my thoughts summed up by someone else.

I do this only twice a year because I know my regular readers - of which there is a decent number according to Google Analytics - don't care about my thoughts on who should be the next president or who the Ravens are going to start at quarterback (it pretty much has to be Boller, right?). Anyway, my post in the morning will be back on topic.

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 was a Yahama Rhino ATV, which has been the subject of numerous lawsuits around the country). The ambulance took him to the emergency room in Great Falls where he was treated by the defendant, an orthopedic doctor. Plaintiff's son regrettably died the next day. Plaintiff immediately blamed the doctor and consulted with medical malpractice lawyers but for whatever reason did not pursue a case.

Almost 4 years later, 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 the doctor's former patients, whose names had not been released to the public. Plaintiff believed that his son was one of those unnamed patients, and after reviewing the documents, filed a medical malpractice claim with the Montana Medical Legal Panel (Maryland's version of Health Claims Arbitration).

Montana's medical malpractice statute of limitations reads a lot like Maryland malpractice statute. In Montana, medical malpractice actions alleging injuries or wrongful death must be brought within three years from the date of injury or from when the plaintiff first discovered the injury. Again, like Maryland, claims may not be brought after five years from the date the injury was incurred.

Accordingly, the Plaintiff’s medical malpractice claim would appear barred by the statute of limitations on its face. Plaintiff asserted, however, that minority polling delayed the running of the three year statute of limitations and that because his son would have lived two more years until he reached the age of 18, the statute of limitations for his claim did not begin to run until his son had reached the age of majority.

The doctor's medical malpractice lawyer disagreed, contending that the person at issue is not the decedent, which is how the court found.

The nuances of Plaintiff's argument are too involved for this blog post (read: I don't feel like breaking them down) but they are spelled out exceptionally well in William A. Rossbach's (Rossbach Hart Bechtold, PC in Missoula) amicus brief on behalf of the Montana Trial Lawyers Association). The Montana Supreme Court does a fantastic thing by publishing not only the opinions but all of the briefs that were submitted. You can find the Montana Trial Lawyers Association brief here and the Montana Supreme Court decision here.

The Baltimore Injury Lawyer Blog has a great post on an article I missed about how the Baltimore Sun learned of the apppointment Judge Mary Ellen Barbera to the Maryland Court of Appeals. The post includes a good lesson for personal injury lawyers: you never know who is listening.

Last week, I wrote about a new opinion from the Missouri Supreme Court that found that a driver could recover emotional damages in a lawsuit against the parent of a child that was 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 car driven by the Defendant. Andrew’s case settled but Plaintiff maintained a claim for negligence for emotional stress she 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.

The Connecticut Supreme Court agreed that the plaintiff's allegation of bystander emotional distress resulting from witnessing his son’s injuries does no constitute bodily injury as that term is defined in the Metropolitan insurance policy. The court also found that Andrew’s mother could not recover under the insurance policy language because the payment of the $100,000 per person limit to Andrew also exhausted her claim.

I was a little confused because the Court begin the opinion stating it was affirming the trial court's entry of summary judgment in favor of the driver defendant but it then concluded solely in terms of whether the insurance company is applicable. I am not sure why in this case on necessarily relates to the other but I think it might have involved some sort of stipulation that that the insurance company would pay for policy limits if the Connecticut High Court found that there was coverage.

Accordingly, if my understanding is correct, I am concerned that the court is saying that claims for emotional distress are compensable but the insurance policies language that defines "bodily injury" does not provide coverage. This will leave negligent defendants exposed to a liability for claims that are clearly foreseeable from car and truck accidents. States interfere with policy language in insurance contracts as a matter of course. Why make a distinction? This is something I would expect the Connecticut Trial Lawyers Association to be working on in Connecticut's next legislative session.

Taking off my personal injury lawyer and a hat for just one second, I am a little bit uncomfortable with emotional distress claims in all but the most serious of claims. I believe that there should be a cause of action for emotional distress claims. But if I were sitting on a jury, I would not award significant damages in anything other than most extreme cases. This Connecticut case does not flush out the basis for the mother's emotional distress claim.

You can read the full opinion here.

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 are going to be settled for a "Wyeth discount" because both sides seem to think they are going to win. I cannot imagine how the court could find that there is conflict between state and federal law in drug cases because I think it is clear that federal labeling requirements create a floor for state tort claims, not a ceiling. Wyeth cannot hide behind the FDA in a warnings claim because it can give any warning that it likes. But then again, I predicted we would win Riegel v. Medtronic and we suffered an 8-1 drubbing at the hands of the Supreme Court. So I'm probably the wrong person to turn to with predictions.

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 on cross-examination in Winfred D. v. Michelin North America.

(Random comment: Can we all use first names in cases 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 in this case 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 doctor’s 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.

At the trial of this case in Los Angeles County, the trial judge allowed the Michelin’s lawyer to introduce evidence that while plaintiff was married to his first wife he married another woman without telling her he had not divorced his first wife. Then, he eventually divorced his second wife; and he thereafter had an affair with a third woman, having two children with her. The trial court ruled that this conduct was relevant to plaintiff’s credibility and the cause of the accident.

The jury returned a verdict in favor of Defendant Michelin, voting 9-3 on the breach of warranty claim. On appeal, Plaintiff’s product liability lawyers argued that the evidence admitted regarding Plaintiff’s private life should have been excluded.

The California appeals court said that Plaintiff’s lawyers’ opening statement comment that Plaintiff was “living the American dream” did not open the door, as the trial court suggested, to the fact that he was unethical in his personal or private affairs. The court concluded that because Michelin’s lawyers painted Plaintiff as a “liar, cheater, womanizer, and a man of low morals” based almost exclusively on inadmissible evidence, a new trial was warranted.

Trial courts have a lot of discretion to determine what is relevant but I think pretty clearly that the nuances of his personal relationships – however disturbing – are not fair game. I understand why and agree that the trial court should have a lot of discretion in determining what is relevant because relevancy is so fact specific. The clear downside to the frustration of lawyers is different judge’s have different rulings. I tried a case recently where the judge accused me of seeking to “try the case in a vacuum.” The problem is that one reasonable judge’s “vacuum” is another reasonable judge’s “let’s just stick to relevant facts.”

Click here for the full opinion.

The Missouri Supreme Court found last week that a truck driver who was in a truck accident with another driver can sue for the emotional damages he 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 in excess of $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 due to his own negligence which has to be the most awful feeling in the world. His emotional distress from the truck accident - albeit his fault - is through the roof. Now this truck driver brings a lawsuit. 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:

(a) The "worst image" for plaintiff was the "the 'baby' lying in the mangled car";

(b) Plaintiff experienced "a great deal of grief for the child who died";

(c) Plaintiff experienced the "paradox of knowing he had no responsibility in her death and wanting her to forgive him at the same time"; and

(d) Plaintiff "visualize[d] the little girl being in heaven" and "said she's the lucky one."

The last one in particular - even if theologically correct - marks the Plaintiff as deranged and I'm surprised the majority let that go without even a comment. The truck driver is telling the father that his loss is worse than his daughter's. The crazy paradox is that anyone so grief stricken over the death of another would be willing to subject the father who caused the death of his own two year old child more grief.

If you hate plaintiffs and personal injury lawyers, I have certainly given you some fodder today. I think you are wrong; I would love to convert you. But it won't happen today.

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 are going to 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).

In fact, the article presents powerful evidence of this. When plaintiffs err in going to trial, the study states that they lose $41,000 on average. When the defendants make the wrong call, the error costs them over $1 million. Accordingly, the plaintiff – like the man betting on the horses – may get the decision wrong more often than the defendants from a win-loss perspective, but might still be better served statistically by going to trial.

The irony of the article is the suggestion that personal injury lawyers are pushing cases to trial. The reality is that the failing of most personal injury lawyers is that they push their clients to settle too soon and too often because the lawyer would rather not have to try the case; perhaps this is because they do not want to spend the time or effort or do not have the ability and experience to try the case.

Thankfully, most personal injury cases can and do settle. Moreover, it is important to remember – as the article points out – that for most Plaintiffs a $500,000 settlement is a better choice than a 75% chance of getting $1,000,000 at trial, regardless of the math, because the settlement acts as an insurance policy. But the notion that personal injury lawyers should try fewer cases is just false and plays into the hands of insurance companies that are seeking every possible avenue to convince injury and malpractice lawyers to recommend to their clients values that do not approximate a fair settlement for the case.

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.

District Court Prince George's County: George Richard Collins, Tiffany Hanna Anderson, Lawrence Vincent Hill Jr

District Court Calvert County: Edward Gregory Wells

3rd Circuit Court of Speical Appeals: Kathryn Grill Graeff

Court of Special Appeals (At Large): Judge Albert Joseph Matricciani Jr.

Circuit Court Baltimore City: Marcus Z. Shar

District Court for Cecil County: Bonnie Gullatt Schneider

Finally, as predicted here (sort of), Maryland Court of Special Appeals Court Judge Mary Ellen Barbera was elevated to the Maryland Court of Appeals.

The 11th Circuit Court of Appeals decided the question of 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.

In this case, 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 accordingly, 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.

With respect to the first issue, the 11th Circuit affirmed the lower courts finding that post-confirmation assets "remain" property of the estate. The court found the husband acquired his claims for underinsured-motorist benefits after the commencement of the bankruptcy case but before their case was dismissed, closed, or converted, and that if Congress intended for confirmation to so dramatically affect the expansive definition of property of the estate, it could have easily done so.

With respect to the latter issue, the court found that the Bankruptcy Court did not abuse its discretion by requiring the couple to amend their schedule of assets. On this issue, the court simply found that the law clearly recognizes a debtor's continuing duty to disclose changes in his financial situation while the bankruptcy is pending.

Our law firm handles only personal injury cases. I think this is the best way to practice law; I cannot imagine trying to be the jack of all trades in 2008 because there is simply too much that personal injury lawyers need to know just in handling malpractice and accident claims. But the downside is that everything I learned about bankruptcy law I learned in the day I started my Debtor-Creditor class, only to drop it because it was way too boring.

I think the key for personal injury lawyers is not in knowing bankruptcy law but in issue spotting. You don’t need to understand the bankruptcy code but you do need to be able to spot issues. In this case, if you have an accident or malpractice client whose bankruptcy has not been fully completed, you have an issue you need to address.