Maryland Injury Lawyer Blog
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- Peter Angelos Opposes Comparative Negligence
The Maryland Gazette reports that Baltimore personal injury lawyer Peter G. Angelos is lobbying the General Assembly’s judicial committees to kill a bill that would allow Maryland to join 46 other states in switching from a standard of contributory negligence to one of comparative fault.
Angelos' fear, which all Maryland personal injury lawyers fully share, is that with comparative negligence we could potentially lose joint and several liability, which allows plaintiffs to seek a full recovery from culpable parties who are not 50% responsible. Currently, all defendants who are substantial contributing causes of a plaintiff's injury are individually fully responsible for the total amount of a jury award to a successful plaintiff. A separate court action later decides how much each defendant pays.
More to the point for Mr. Angelos, his firm handles asbestos cases where some of the responsible parties are bankrupt. Clearly, Mr. Angelos' concern is his potential failure to gain a full recovery in these asebestos cases.
While there is no guarantee that Maryland would relinquish joint and several liability (only 14 states do not apply joint and several liability to the asbestos cases and 46 states have comparative negligence, which clearly shows they are not mutually exclusive), I suspect Mr. Angelos wants to err on the side of caution in the event that Maryland decides to relinquish some of the benefits that joint and several liability in its current form affords in exchange for the switch to comparative negligence.
But there is no evidence that the supporters of the comparative negligence bill are willing to compromise on the fairness and the efficacy (some studies have said that it may encourage settlement) joint and several liability provides. But apparently, given the asbestos laden nature of Mr. Angelos' law practice, any risk of losing joint and several liability leads him to oppose a bill that virtually every other personal injury lawyer in the country agrees is the superior rule to protect injury victims. The fact that no other Maryland personal injury lawyer has come out against comparative negligence speaks volumes to the question raised in the article as to what is best for personal injury victims in Maryland.
So now the question becomes whether the Maryland legislature will bend to the money and influence of Peter Angelos and big business in Maryland. We will find out shortly....
Tue, 13 Mar 2007 10:48:29 -0500 - Advocacy Group Seeks Tougher Regulation of Trucks
A study released by two advocacy groups showed that U.S. fatalities from truck accidents have remained consistent at 100 per week from 1999 to 2005. This week, families of truck accident victims are lobbying Congress and the Bush administration to establish stricter rules such as reducing the number of hours truck drivers are allowed to drive without rest and increase the number of safety inspections.
As I mentioned in a recent blog post, the Federal Motor Carrier Safety Administration four years ago under President Bush in spite of evidence that we had not decreased the number of truck accidents in this country, increased the maximum driving hours to 77 from 60 over 7 consecutive days and to 88 hours from 70 over 8 consecutive days. These safety groups are trying to nudge the President in the opposite direction. Sneak preview of what it to come: it won't work.
Mon, 12 Mar 2007 16:41:18 -0500 - Most Outrageous Lawsuits: The Attack on Personal Injury Lawyers Continues Unabated
America Online (AOL) is running an article titled "Most Outrageous Lawsuits." It appears in the money and finance section of AOL and was also prominently displayed on the AOL home page. As a frequent user of AOL (I really love their product) for the last 11 years, I keep seeing this article over and over.
The "crazy lawsuits" AOL describes come directly from groups like Citizens Against Lawsuit Abuse (CALA) and the American Tort Reform Association (ATRA), groups who see personal injury lawyers as the great Satan whose sole mission is to destroy corporate America while lining our pockets with millions of dollars.
These groups rely on a false premise: that the American public cannot be trusted and American juries give out ridiculous awards that are not substantiated by the evidence or even common sense. The groups that vilify personal injury lawyers are entitled to their opinion and there is no question that frivolous lawsuits do get filed. What they are not entitled to is their own facts. But they often do make their own facts, manufacturing insane lawsuits and verdicts that never happened.
Stores of million dollar recoveries in cases that simply never happened fuel this frustration against personal injury lawyers. My personal favorite is the auto accident that resulted from the man who assumed his Winnebago would simply drive itself on cruise control, left his seat and went to make a cup of coffee, and then sued and recovered millions because he was not warned that cruise control did not mean the vehicle would drive itself. Of course, the more powerful examples are the ones at least based on a true story like the McDonald's coffee case, which has been so distorted by groups attacking personal injury lawyers - and by implication the American public - that the actual facts of the case have been long lost. Click here for the real facts of the McDonald's case instead of the half story - actually 1/10 story - that gets told over and over again.
As it turns out, AOL may itself have reason to detest trial lawyers. In the past few years, trial lawyers have been the last resort for shareholders and investors to hold AOL accountable for their negligence. The following are just a few examples of AOL's legal problems:
Just this week AOL agreed to pay $246 million to compensate the University of California for losses to their pension and endowment funds after the company's stock prices plunged in 2001-2002. The University alleged that AOL inflated it stock price prior to its merger with Time-Warner by misrepresenting its sales, revenues and subscriber numbers (I lost money on their stock as well but I got it mostly after the stock had plummeted).
On February 26, 2007, Time Warner reached agreements to pay $405 million to settle lawsuits related to past accounting problems at AOL.
On February 7, 2007, AOL reached a $105 million settlement with the California State Teachers' Retirement System that claimed that AOL executives and bankers had artificially boosted the value of its stocks prior to buying Time Warner.
In December, 2006, AOL settled a securities fraud case for $50 million with the state of Alaska.
In September, 2006, AOL members joined together in a class action suing AOL for violating their privacy by posting their search queries online. AOL made public the search queries of over 600,000 members.
In January, 2006, AOL settled a class action for $25 million after the company was accused of wrongfully billing its customers.In 2005, Time Warner settled a $2.4 billion securities fraud lawsuit stemming from their misstatement of advertising revenue on the eve of its merger with AOL.
In 2004, AOL settled two class actions that claimed it had continued to bill plaintiffs after their subscriptions were cancelled.
I'm not saying this is why AOL is running the story. I really do not know. They may be just feeding into the frenzy attacking personal injury lawyers and tapping into the impulse that many of us have to think that the American public - or anyone not in the room when we are speaking, for that matter - is so dumb. But I wish AOL would ignore its own ulterior motives or the desire to tap into the anti-personal injury lawyer sentiment and present these stories with a little more journalistic objectivity. Otherwise, they should just merge with Fox News.
Wed, 07 Mar 2007 09:03:42 -0500 - Premises Liability Settlements and Verdicts in Maryland
Metro Verdicts Monthly's graph this month is non-fatal settlements and verdicts in Maryland, the District of Columbia, and Virginia in premises liability cases since 1987. The median non-fatal premises liability case in Maryland was $69,000. The recoveries in Virginia and the District of Columbia are slighly less, $50,000 and $65,000, respectively.
As I have said before, I love seeing these different verdicts in Maryland each month. It is always interesting to see different lawyers that you know and see what kind of cases they had and how they fared. What diminishes the value of Metro Verdicts, in my mind, is the turn around time. I have a case in this month's edition that I tried 6 months ago. It does not diminish the quality of the information but in the Internet era, it is not quite as enjoyable to read stale news.
Mon, 26 Feb 2007 14:11:05 -0500 - Don't Object Just Because You Can: The Deposition of Dr. Robert O. Gordon
My partner, Laura Zois, conducted a videotape trial cross examination of frequent flyer defense medical expert, Dr. Robert O. Gordon, a doctor who makes a great deal of money working for insurance companies generally and, frequently, for State Farm. During his examination, he spewed out a whole host of inappropriate and factually incorrect statements. Here is an example:
Q. And why not, Doctor? Would you explain the reasons for your opinion?
A. Well, first of all, there was nothing in the emergency room report, or in the report of the doctors that he was sent to by his attorney, that indicated that --
The client's testimony was that he went to his family doctor first and was referred by his family doctor to the orthopaedic surgeon. But Dr. Gordon has been doing this so long he assumes that someone did. The first thought is to file a motion to strike this testimony. But doesn't his incorrect statement just underscore that he is not only a testifying doctor but an advocate? Isn't it better that a jury sees this?
Here is another example:
A. No. Why don’t you ask -- this Maryland Orthopaedics how many patients they see at the request of attorneys every day?
Q. Because this isn’t their deposition.
A. If you want to get rich doing -- . . . -- medical legal work, that’s what you do.
Plaintiffs move to strike this testimony becauseIgnoring the rich irony of a man making hundreds of thousands of dollars testifying, Dr. Gordon's lashing out at another health care provider again underscores he is an advocate for the insurance companies. Why not let the jury hear that?
Here's a few more exchanges:
Q.Okay. Who do you have as your staff?
A. I have staff. I’m not going to tell you who they are, because I get harassed by people like you all the time.
MS. ZOIS: Objection
THE WITNESS: I get phone calls at home.
MS. ZOIS: Move to strike.
THE WITNESS: I get people knocking on my door at midnight. I would like to explain why I’m not giving you that information. If you did that to my employees, I wouldn’t have any employees.
Q. I guess I was just thrown off by why you included the overhead.
A. Well, because I think it’s nice for you to get an idea that, unlike the doctors that treated this patient, the vast majority of my income has been from taking care of people --
MS. ZOIS: Objection. Move to strike.
THE WITNESS: -- and not from selling drugs, not from --
MS. ZOIS: Objection. Move to strike.
THE WITNESS: -- taking x-rays, and selling appliances.
Q. You referred to passive physical therapy. Is that -- what does that mean? What does that term mean?
A. Well, the reason I said that is because some of these therapy places that have a big practice in treating patients that lawyers send them to --
MS. ZOIS: Objection. Move to strike.
THE WITNESS: -- charge for things called therapeutic exercises. And what some of these places do is they -- and particularly the doctor owned facilities -- is they buy an exercise bicycle and they’ll put the patient on an exercise bicycle and they’ll charge them “therapeutic exercise.” It just means riding on an exercise bicycle, which -- which is a bit -- is a bit preposterous. I mean, they get - the bicycle can be paid for in a week and then the rest of it is just -- that’s why doctors who do this kind of work can be on the golf course and making a fortune.
Isn't this just incredible? After this, Dr. Gordon may as well come up to the lectern and try the case along with defense counsel. It is not that far of a stretch after this testimony. You can see the entire deposition transcript here. It makes for a great read.
This was not a large case. It was originally a District Court (small claims) case that got bumped up to Prince George's County Circuit Court because the Defendant filed for jury demand. A Prince George's County jury awarded $22,000 which was more than twice the offer State Farm made. Did Dr. Gordon's testimony figure into the verdict? Who knows? But the point is that many personal injury lawyers would have sought to exclude that testimony simply because they could. It is hard for lawyers to resist fighting a fight the lawyer knows he/she can win. Instead, it is better to figure out first whether the otherwise inadmissible and over reaching statements hurt or help you case. In this particular case, I think the testimony helped our clients' case (and amused the jury from an otherwise boring video of the doctor's testimony).
Fri, 23 Feb 2007 11:53:00 -0500 - The Words Lawyers Use in Personal Injury Auto Accident Cases
Evan Schaeffer's Illinois Trial Practice Weblog blogs today about a post in the Psychiatrist Blog indicating that witnesses are highly suggestible depending upon the words lawyers use in describing an auto or truck accident. I find the psychology of this very interesting and this blog post makes for a good read. The take home message: words matter.
I wrote a blog post for the Trial Lawyers Resource Center discussing this same issue of the words selected when it comes to describing a personal injury victim's injuries. You can find that blog post here.
Thu, 22 Feb 2007 17:34:57 -0500 - Lawyers Using Handwriting Analysis in Jury Selection
The National Law Journal reports that a small number of personal injury lawyers are relying on handwriting experts to help the lawyers in selecting juries. Handwriting analysis uses various clues, including the amount of pressure used, the size and angles of the letters, and spaces between words to paint a picture of a potential juror.
Maryland personal injury lawyers have no opportunity to see the handwriting of prospective jurors. But personal injury lawyers in other jurisdictions have the opportunity to review juror questionnaires that would provide a handwriting analysis. I remember reading somewhere that handwriting that is flamboyant and flowery would be preferable to the personal injury lawyer's client than tight, concise and analytical. (I'm not sure what someone would make of mine because it is illegible!) But if I practiced in a jurisdiction where I had the opportunity to see the the jurors handwriting, I would want to see a study really on point before spending a lot of resources analyzing their handwriting.
Fri, 16 Feb 2007 15:44:22 -0500 - New University of Baltimore Law School Dean
Phillip J. Closius was named as the new dean of the University of Baltimore School of Law today. Dean Closius is the former dean of the University of Toledo College of Law. He is a former practicing attorney who teaches and conducts scholarship in the areas of Constitutional, First Amendment and Sports Law.
Dean Holmes made a lot of progress in his tenure at the University of Baltimore. Hopefully, Dean Closius can build off Dean Holmes' work to take the University of Baltimore School of Law to the next level. I started on the adjunct facility at UB in 1998 and now teach at the University every semester. I have seen a lot of progress in recent years in the quality of students and the resourses we have and I am very hopeful that the new dean can keep this ball rolling.
Thu, 15 Feb 2007 12:14:21 -0500 - CNN Report on Insurance Company Tactics
CNN reports on an 18 month investigation into minor-impact soft-tissue injury crashes around the country. The report confirms what auto accident lawyers in Baltimore and around the country have known for quite some time: the insurance companies defend these cases not based on the value of the cases, but in an attempt to discourage auto accident lawyers and victims from bring a claim.
You can read more here about Colossus, the computer system discussed in the article that directs the process of making offers in auto accident cases. Since the mid-1990s most of the major insurance companies - led by the two largest, Allstate and State Farm - have adopted a tough take-it-or-leave-it strategy when dealing with most auto accident cases. The result of this strategy has been billions of dollars in profits for insurance companies and little, if anything, for the public, according to Jeff Stempel, a University of Nevada insurance law professor. Stempel further stated that “We can see that policyholders individually are getting hurt by being dragged through the court on fender-bender claims, and yet we don’t see any collateral benefit in the form of reduced premiums even for the other policyholders." He goes on to say that he thinks that "this kind of program is in my view institutionalized bad faith.”
My last blog entry was a rambling diatribe about how desperately we need first party bad faith in Maryland. But I do not agree with Professor Stempel that insurance companies' decisions to aggressively fight claims is tantamount to bad faith in every case. The insurance companies have a right to take a tough posture, particularly in the third party context. Our personal injury lawyers' job is to fight back when they do. I do not think we deserve a free ride in third party cases.
In Maryland, in cases where the policy limit may be exceeded, most insurance companies will notify their insured that there is a risk that the verdict will exceed their policy limit and promise to pay any excess verdict. (Plaintiffs' lawyers nickname the letters based on the insurance company slogans: you would get a "good neighbor" letter from State Farm; a "good hands" letter from Allstate.) So my feeling is that in the third party context, if the insurance company is willing to pay any excess judgment, they should be able to do whatever they want.
Where injustice does come into play in Maryland in auto accident cases is uninsured motorist cases. Today, insurance companies are not obligated and do not act fairly to their own insureds in Maryland. This is where I believe that insurance companies should be obligated to take off the gloves and deal with their customers in an even-handed manner. They are required to do this in most states. Hopefully, they will soon be required to do so in Maryland. If you agree with me, write your state senator and local delegates as this battle will be waged in the Maryland legislature in Annapolis in the upcoming months.
Wed, 14 Feb 2007 15:26:30 -0500 - $8 Million Verdict in Prince George's County
Yesterday my partner, Laura G. Zois, tried a wrongful death auto accident case in Prince George's County against Allstate. The jury awarded our client $8 million. Allstate made no offer to resolve the case.
Of course, we cannot collect the entire amount not only because of Maryland's cap on pain and suffering damages, but also because there is no first party bad faith on uninsured motorist claims in Maryland. I understand that a bill has been introduced in the Maryland General Assembly to bring first party bad faith to Maryland.
I try very hard to keep the "insurance companies are pure evil" sentiment out of the Maryland Personal Injury Lawyer Blog because I think simplistic generalizations defeat real discussion of the issues. I teach Insurance Law at the University of Baltimore Law School and try even harder there to remain balanced in my approach to the class.
But I have a difficult time presenting a balanced view of the need for first party bad faith in Maryland, and the abuses personal injury lawyers and their clients must endure from insurance companies in the absence of first party bad faith. Approximately thirty-five other jurisdictions appear to recognize a first party bad faith cause of action. See Bad Faith Actions, Liability and Damages, § 2.22, at 65.
Maryland needs first party bad faith not only for auto and truck accidents but also other kinds of first party insurance, particularly those types of insurances where the insured is dependent on prompt receipt of the insurance proceeds. If you have just lost a high income producing loved one or your house burns down, the absence of bad faith allows the insurance company to drive a hard bargain in settlement negotiations, regardless of whether there is a good faith reason to deny the claim. Who is stopping an insurance company in Maryland from offering 50% of the insurance proceeds to a needy widow even if the loss is clearly covered by the policy?
Of course, not every insurance claim denial supports a cause of action for bad faith. But Maryland should adopt the majority rule that in addition to the situation where an insurance company knows it had no legitimate basis for denying the claim, an insurer is also liable when it recklessly disregards the rights of its insured.
There is a bill before the Maryland legislature this year to bring first party bad faith to Maryland. The bill lacks the teeth of punitive damages but it is certainly a step in the right direction.
Tue, 06 Feb 2007 11:41:20 -0500 - Will Maryland Drop Contributory Negligence
The Maryland legislature is considering joining the rest of the civilized world - okay, I'll kill the hyperbole - the vast majority of jurisdictions in this country by adopting a comparative negligence standard in Maryland. The contributory negligence standard we currently have in Maryland is harsh to injury victims and creates real challenges for Maryland personal injury lawyers seeking justice for their clients. Under contributory negligence, the accident or medical malpractice victim's failure to exercise due care which contributes even in the slightest way to plaintiff's injuries is an absolute bar to recovery. Under this rule, even if the jury believed the plaintiff was only 1% at fault for his/her injuries, the plaintiff would be completely barred from recovering for those injuries.
All but 5 states have moved into the modern era and adopted contributory negligence. It would be a blessing for injury victims in Maryland if Maryland dropped that number down to 4.
The Maryland Gazette posted an interesting - albeit pro-business - article on Friday on this issue of Maryland reconsidering contributory negligence.
Mon, 05 Feb 2007 12:30:28 -0500 - Prince George's County Pedestrian and Bicycle Accidents
Prince George’s County recorded 285 bicycle and pedestrian deaths between 1994 and 2003, far more than Montgomery County, Fairfax County or the District of Columbia, according to a report by the Metropolitan Washington Council of Governments. More pedestrians and bikers are killed Prince George’s County than in any other jurisdiction in the region.
Every year approximately 5,000 pedestrians are killed in motor vehicle collisions in the United States. There a many possible causes for bicycle and pedestrian deaths but our personal injury lawyers too have noted a high number of pedestrian deaths in Prince George's County, one of which Rod Gaston from our office will be taking to trial this spring in Prince George's County Circuit Court. Flaws in road design contribute to many of these deadly collisions but the primary culpability usually rests with the driver or the pedestrian.
Wed, 31 Jan 2007 08:29:47 -0500 - Wrongful Death Settlements and Verdicts in Motor Vehicle Accidents in Maryland, D.C. and Virginia
Metro Verdicts Monthly's graph this month is wrongful death median settlements and verdicts in Maryland, the District of Columbia, and Virginia. The average wrongful death settlement in Virginia and the District of Columbia is $800,000 and $575,000, respectively. Maryland lags behind at $500,000.
Maryland verdicts usually compare favorably with Virginia. Why the disparity? Virginia's cap on non-economic damages is limited to medical malpractice. Maryland's cap applies to all personal injury cases.
Tue, 30 Jan 2007 13:20:20 -0500 - Deposition of Adverse Witness in Motor Vehicle Accident Cases Regarding the Speed of Your Client
No new post on the Maryland Personal Injury Lawyer Blog today. But I did just post a blog for the Trial Lawyer Resource Center about questioning at deposition adverse witnesses in auto and truck accident cases who claim your client was speeding. To access that blog post, click here. To see sample deposition transcripts in auto accident, truck accident, and medical malpractice cases, click here.
Mon, 29 Jan 2007 15:24:12 -0500 - Lucentis May Increase Risk of Stroke
The New York Times reported on Saturday that Genentech posted a letter on its Web site warning eye specialists of its new eye drug Lucentis, which may increase the risk of stroke for those on Lucentis. Genentech found that patients taking their marketed dose of Lucentis were much more likely to suffer a stroke than patients taking a lower dose.
Some doctors remain undeterred. “Right now, it will have no impact on my use of Lucentis,” a doctor at the Palmer Eye Institute of the University of Miami, wrote to the New York Times in an e-mail message. “When given a choice between a high likelihood of blindness or a 1 percent risk of stroke, I think most patients will choose their vision.”
I don't know enough about Lucentis to say whether I think this doctor is correct. The problem is, I don't think Lucentis' manufacturer knows either.
Sun, 28 Jan 2007 15:49:01 -0500
