Maryland Injury Lawyer Blog

Will Strict Liability For Pit Bulls Cost Maryland $174 Million?

Wed, 23 May 2012 15:38:29 -0500

Will strict liability for pit bulls in Maryland cost the state $30 million in state and local tax revenue and cut back rental incomes to the tune of $144 million? Hard to believe. But these folks have numbers to make their argument. If these estimates are even half right, it would be a power example of the law of unintended consequences.

Overlawyered comment where I found the study
An overview of dog bite cases in Maryland
Premises liability cases in Maryland
Tracey v. Solesky
Statistics on dog bite claims

Dr. Louis Halikman and Mercy Hospital

Wed, 23 May 2012 09:50:30 -0500

Dr. Louis Halikman is orthopedic doctor that many insurance companies in Maryland - most notably State Farm - frequently use to defend car accident cases. "Frequently" is probably charitable; by his own admission he makes somewhere between $30,000 and $35,000 a month providing expert services for insurance companies.

Am I a big fan of Dr. Halikman? No. It is not that I don't think he is a good doctor. He's a smart man with good credentials, which is why insurance companies are lined up at his door. Moreover, being well paid by one side or the other does not necessarily mean the doctor is in bed with that party. But it is my opinion that he either has a philosophical anti-plaintiff animus or, more likely, his opinions are colored by the fact that insurance companies have paid for his services on the level they have for the last 25 years.

In my last trial with him, last summer, he pretty much claimed that our client was as injured as badly as she was because she was overweight, putting more force on her ankle when she fell. It was such a mean spirited and cheap shot. He also claimed she would have healed faster if she had gotten bariatric surgery to take off weigh. He didn't give much concern to the mortality risks of the procedure that he wanted to impose on our client. (The jury saw it for what it was and awarded over a half a million dollars.)

Dog Bite Lawsuit Statistics

Mon, 21 May 2012 08:30:00 -0500

I have recently received a good bit of heated interest in my last two posts (here and here) on the Maryland Court of Appeals opinion in Tracey v. Solesky, in which the court held that in dog bite cases involving a pit bull or cross-bred pit bull mix, plaintiff no longer needs to prove that the dog in particular, or pit bulls in general, are dangerous.

There is no question that dog bite claims make up their fair share of serious personal injury claims. Here are some statistics:

The insurance industry pays more than $1 billion in dog-bite claims each year. State Farm, the insurance company in Solesky, paid more than $109 million on about 3,800 dog bite claims nationwide in 2011. In 2010, State Farm had approximately 3,500 claims and $90 million in payouts.
The Insurance Information Institute estimated that nearly $479 million in dog bite claims were paid by all insurance companies in 2011, spokeswoman Loretta Worters said. In 2010, it was $413 million.
The CDC says that approximately 4.7 million people are bitten by dogs each year. Over half of the victims are children. Most of these bites are not serious. But approximately 800,000 people seek medical attention for the bites each year. Sixteen people a year die from dog bites. It has to be said: most of these are from pit bulls. Still, at least 25 different breeds of dogs have been involved in the last 238 dog-bite-related fatalities in the U.S.
Approximately 92% of fatal dog attacks involved male dogs, 94% of which were not neutered.
The median (not average) dog bite verdict in Maryland over the last 23 years is $24,600.
At particular risk for dog bits are (1)children ages 5 to 9 years old, (2) seniors, and (3) postmen. Children are the biggest risk. Kids are 900 times more likely to be attacked than a letter carrier.
State Farm's average cost per dog bite nationally in 2011 was $28,799.
Approximately one-fourth of dog bite claims are like Solesky in that they involve unrestrained dogs off of their owners’ property. I think these are the dog bite injuries that most concern the general public.

Same Sex Marriage Recognized By Maryland High Court

Fri, 18 May 2012 11:33:38 -0500

This blog post is an exception to the usual "personal injury related only" rule on this blog. The Maryland Court of Appeals (Maryland's "supreme court") ruled unanimously today that Maryland must recognize as married same-sex couples who legally wed in other states.

A married same sex couple from California sought a divorce here in Maryland. Prince George's County Judge A. Michael Chapdelaine denied the divorce petition because the marriage was “not valid” and “contrary to the public policy of Maryland.”

Malpractice Statistics: New Study

Tue, 15 May 2012 16:20:01 -0500

Runaway juries are the big problem in medical malpractice cases. Juries see a sympathic plaintiff and, unchecked by reason, they start writing oversized checks. Liberal judges aid and abet the crime.

This belief has taken deep root in Maryland - and in most states - that has led to the enactment of scores of laws to impede medical malpractice lawsuits. Most notable of these restrictions has been medical malpractice caps. Maryland had a onerous cap that became even more draconian. Why? Because the Maryland State Medical Society’s (MedChi) very skillfully orchestrated what almost everyone now agrees was a a faux crisis.

Trial lawyers have been pretty much outsmarted at every turn by doctors and other tort reform proponents. These advocacy groups have smartly turned the focus away from hard facts and have, ironically, effectively used the quintessential trial lawyer weapons, antidotes, and imagery. Pictures of doctors on highways walking out of the state because of high malpractice premiums. A story about a cute little Doc Hollywood like country doctor who had to close his practice because of frivilous malpractice suits. They have, repeatedly, won. Their lobbyists and PR people have done a great job.

Bullying Plaintiffs' Medical Experts

Tue, 15 May 2012 11:19:32 -0500

Max Kennerly writes a really good post telling the story of how a defendant's medical malpractice lawyer tried to bully the plaintiffs' expert by writing the expert's hospital to express the concern that the expert's testimony might expose the hospital to significant liability.

Malpractice defense lawyers learned this trick at the feet of the master: pharmaceutical companies make a concerted effort to use its influence at major universities to blackball anyone who testifies against them.

At least this story has a happy ending. The trial judge sanctioned the defense lawyer.

UPDATE: I fixed the broken link. Sorry about that.

Appellate Opinions Over Last Few Weeks

Thu, 10 May 2012 13:21:45 -0500

Plaintiff's lawyer names expert two days late. Defendant names experts two months late. Defendant moves to strike plaintiff's expert. The Mississippi trial judge applies some common sense.
Every time I hear talk of the "saving statute" it always ends the same way: "Still, you blew the statute of limitations."
Plaintiff's get a rare preemption win.
A big mistake medical malpractice lawyers make: assuming their experts can speak to causation because they can speak to standard of care.
Tennessee effectively tosses the locality rule in medical malpractice cases.
Defensive medicine rant from defendant's expert in a malpractice case leads to a new trial.

Jury Notes: New Maryland Opinion

Thu, 10 May 2012 11:24:28 -0500

The Maryland Court of Appeals issued its opinion in Nicolas v. State, a Montgomery County criminal case.

The primary issue on appeal dealt with double jeopardy, merger of offenses, and a bunch of other stuff I have long forgot about since law school. But the case also raised on appeal a rather novel issue with respect to juror notes.

I love juror notes. You spend days trying to read invisible juror tea leaves and then get actual tea leaves of what the jurors are thinking. Yet these are illusory tea leaves. My favorite story was when the jury came back with a single question: "May we see Plaintiff's damages board again?"

Annals of Bold Legal Marketing

Wed, 09 May 2012 13:23:17 -0500

I get emails from people marketing legal directories and whatnot all day but I particularly enjoyed the hubris of this one:

Hi Ron,

Your name was passed to me as a potential candidate for a Lead Counsel position on our Personal Injury panel in the Salisbury area. We are currently seeking a qualified attorney who can take additional casework. We do need to verify your qualifications in order to see if you are eligible for this position. This is a four attorney panel and we are only looking to work with one additional attorney. We currently have several candidates in review for the position. If this is something you would like to be considered for; I would need the preliminary info below returned within 24 hours.

How long have you been practicing Personal Injury?

Are you in good standing with your State Bar?

Have you had any client related disciplinary action taken against you?

When is your next available time to have a phone appointment to discuss this position further? Please list a time and date.

Note: Only emails with an appointment time listed will be considered.

Regards,

Colin Richardson
Director of Lead Counsel

Phone: 800-397-3743 ext. 7027
Fax: 800-220-4546
Website: www.lawinfo.com
E-mail: crichardson@lawinfo.com
Need more Clients? www.lawinfolegalmarketing.com

So he sends a cold call email (he left a message, too) agreeing to interview me for the "position" but will only consider me if I quickly follow his explicit instructions and have great credentials (like, you know, being in good standing with the bar). I love the strategy although I have to wonder how effective it is with prospects who have a third grade education.

Progressive Insurance = File Suit

Tue, 08 May 2012 12:33:13 -0500

We sent Progressive Insurance a demand letter in a case where the client had some pretty serious injuries, including 50 staples in her head to close a scalp laceration. Progressive faxed us a letter stating it cannot conclude its investigation until we obtain different bills from the medical providers that are on certain health claim forms, because Progressive wants the individual CPT codes for every visit. CPT codes are numbers assigned to every task or service a doctor may provide to a patient.

Are CPT codes necessary for Progressive Insurance to determine whether medical care rendered was fair, reasonable, necessary, and causally related to the car accident? I think the best way to frame the question is to ask whether a jury can render a verdict without CPT codes. The answer, of course, in that I have never in my life heard testimony that included CPT codes at trial.

Defense Expert Preaches About Defensive Medicine: Appellate Court Orders New Trial

Fri, 04 May 2012 08:15:31 -0500

The Connecticut Supreme Court ordered a new trial this week in a medical malpractice case for an interesting reason: the defense expert testified at trial that malpractice lawsuits drive up health care costs by forcing doctors to practice defensive medicine.

The big issue in the case was whether appropriate standard of care required the defendant doctor to order additional radiological tests, such as X rays, a CT scan, or an MRI, prior to performing the surgery on a young boy to determine whether his tumor had grown since it was first detected. At trial, the defendants’ medical expert testified, of course, that ‘‘the standard of care did not require additional radiology tests." So, this is hardly a case where the doctor is being accused of practicing defensive medicine. But, for some reason, the doctor felt compelled to point out on direct that he would have ordered them himself, if he was treating the plaintiff. Gee, doc, why?

Well, a few reasons. One, I am with residents, fellows, and medical students all the time. So, we are ordering a lot of tests on everything so they have the opportunity to read them. And you could say, oh, that’s wasteful, but that is part of being at a teaching institution. One. It is for teaching purposes as much as anything, for they have one more chance to look at just one more—they have another dot in their exposure.

Wait, how many times have I heard about how you should not subject patients - not for nothing, a young boy in this case - to unnecessary radiological testing because it exposes the patient to risk (and the annoyance and hassle of the testing itself)? Yet that risk is of no consequence if, you know, we can show those young whippersnappers and extra MRI.

New Uninsured Bill Becomes Law

Thu, 03 May 2012 15:16:59 -0500

The Governor signed yesterday a bill that allows auto insurance companies in cases where the at-fault driver has insufficient insurance coverage to consent to settlements against the at fault driver without (1) limiting their right to raise any issue relating to liability or damages in an action against the insurer; and (2) admitting as to any issue raised in an action against the insurer.

The Maryland General Assembly made history with the bill: nobody is mad. Insurance companies are ecstatic and trial lawyers are largely indifferent.

You can read about the genesis of this bill here.

Our Attorneys' Fees: 33.3%/40%

Thu, 03 May 2012 09:40:47 -0500

Personal injury lawyers hate talking about their contingency fee agreements with their clients. Me too. But, it is an interesting and important topic, and one that is of great importance to people who are seriously injured and will be hiring at attorney. This post explains how our law firm operates and gives a few thoughts on contingency fee agreements in personal injury cases.

Our contingency fee agreement with our clients in every person injury case is exactly the same. Our firm gets one-third of the recovery if the case settles before a lawsuit is filed. If a lawsuit is filed, or there is an agreement to arbitrate the case, our fee increases to 40%. We have fronted all client expenses in every case we have handled in the last 10 years. If we are not willing to put up our own money, we would not be willing to take the case.

He is a copy of our fee agreement. If you are a client of ours, this is the agreement you executed. We have made very few modifications of this agreement over the years. None of the changes we have made were material.

This is our agreement in every single personal injury case in our office. We have turned down at least two cases (that I know of; I'm sure there have been more) that have culminated in a seven figure recovery because we did not agree to reduce our contingency fee.

Before I explain why we do it this way, let me go the other way and set forth the argument why we shouldn't have a set fee for all of our clients. Contingency fees in personal injury cases are designed to a large measure to compensate attorneys for the risk in time and money they must incur. So, theoretically, in a world of perfect information, you should calibrate the contingency fee with the risk/reward and set the attorneys' fees accordingly. [This is the short version; you can find the long version here.]

Johnson & Johnson/DePuy Hip Implant Recalls: Lawsuit Update

Thu, 03 May 2012 08:55:58 -0500

Patients with DePuy ASR hip implants, recalled in 2010, are making their way to trial. DePuy is a subsidiary of Johnson & Johnson, and they are defendants in a type of class action known as multidistrict litigation (MDL). There are over 6,000 lawsuits, about 4,000 in a federal Ohio court, and another 2,000 spread out in various state courts. There were over 93,000 hip implants recalled.

The hip implants were recalled because they are metal-on-metal implants, and doctors are finding out that the grinding of the metal joints causes metal debris to get loose, harm tissue, and enter the bloodstream. Additionally, the hip implants are failing at a higher rate than other types of implants.

Not all of the cases will go to trial—in the federal case, Judge Katz and the parties are selecting a few model cases to go to trial early. Those model cases are known as bellwether cases, and they are intended to be a springboard for settlement of the rest of the cases. The theory is, by having a few representative trials, the parties get a better idea of what a jury will do with these cases, and they can make informed decisions about whether to settle, and for how much. The federal trial will probably be set for early next year.

In the meantime, there are some earlier trial dates set in state courts. The first trial is set for Las Vegas in December, and another trial is set here in Prince George’s County, Maryland in January, 2013.

State Farm Family Use Exclusion: A New CSA Opinion

Wed, 02 May 2012 12:22:19 -0500

State Farm recorded another win in a family use exclusion case this week in the Maryland Court of Special Appeals, in Stickley v. State Farm.

This is an awful case. Plaintiff was a passenger in a car accident in Montgomery County in which her husband was killed. Plaintiff suffered catastrophic injuries. Plaintiff and her husband had coverage with State Farm, which provided typical coverage for State Farm, at least in Maryland: $100,000 per person/$300,000 per accident. Plaintiff also had a $2,000,000 umbrella policy with State Farm. Plaintiff's lawyer obviously wanted to get to the umbrella.

Regrettably, the State Farm umbrella policy included an exclusion for personal injury claims that result from the negligence of another insured. Plaintiff's lawyer sought a declaratory judgment, claiming that her Umbrella Policy constituted "private passenger motor vehicle liability insurance," voiding the family use exclusion regardless of the unambiguous language of the policy.

The question, ultimately, is whether the personal liability umbrella policy is a policy of “private passenger motor vehicle liability insurance,” thereby requiring an insurer to offer coverage under the umbrella policy for a claim made by a family member in the same amount as the coverage made by a nonfamily member, pursuant to Ins. § 19-504.1.