Trevor Rosen's Maryland Law Blog has a helpful post on researching legislative history in Maryland. Trevor is a researcher for the Baltimore law firm of Shapiro Sher Guinot & Sandler and his blog provides a lot of great information on Maryland legal developments.
The Maryland Daily Record reports that the Maryland Appellate Judicial Nominating Commission has forwarded five of the six applicants to Governor O’Malley for his consideration in filling the Maryland Court of Special Appeals vacancy created by Judge J. Frederick Sharer’s retirement. Three of the applicants are judges: Frederick County Circuit Court Judge Julie Stevenson Solt; Washington County Circuit Court Judge Donald E. Beachley; and Howard County Judge Diane O. Leasure. The other two applicants are Karen L. Federman Henry, a division chief in the office of the Montgomery County Attorney General and Kathryn Grill Graeff, chief of criminal appeals in the Office of the Attorney General.
On Wednesday, the Maryland Appellate Judicial Nominating Commission forwarded three candidates to the Governor for the vacancy created by Judge Irma S. Raker’s Maryland Court of Appeals retirement: Court of Special Appeals Judges Mary Ellen Barbera and Patrick L. Woodward; and Montgomery County Circuit Court Judge Michael D. Mason. Last month I analyzed these candidates and predicted who I thought Governor O’Malley might select after careful analysis and deliberation (read: wild guess). You can click here to read that post.
Overlawyered has a blog post today about the reports of a high school pitcher suing his school district because he wore out his arm throwing 140 pitches in a single game. Here is the gist of the story from the Seattle Times: Seven years ago, Plaintiff was pitching against a rival school. He had no plans to take himself out of the game. In the eighth inning his mother, assuming you believe her story, told coach, "He's at 117 pitches. He's done." (How many mothers out there are keeping exact pitch counts?) You know the rest of the story. The Plaintiff hurts his arm. He thinks he was the next coming of Roger Clemens... better make that Greg Maddux... and files suit claiming the coach should have pulled him out of the game.
Overlawyered and the Maryland Lawyer Blog agree that the possibility of a lawsuit causes people to act differently than they otherwise would. Where we disagree is whether, on balance, this is a good thing for society. For example, football coaches now know that depriving kids of water during practice is a bad thing and their doing so may expose the school to liability. In this area I think coaches already have proper incentive to do the right thing and this will only serve to exaggerate the risk of a "pitch count" lawsuit. Even if this is what I believe is the first lawsuit of its kind in this country. Obviously every baseball coach around the country is going to be talking about this and many are going to become worried about pitch counts.
Awareness of valid lawsuits properly encourages people (including doctors) to proceed with caution and to consider the risks that may cause harm. Frivolous lawsuits like this one have the opposite effect and are going to have some coaches - a small minority but still some - overreacting and limiting kids to ridiculously low pitch counts. But just as free speech requires us to tolerate hate speech, the search for justice requires us to tolerate some level of frivolous lawsuits. Whatever inertia this country has towards tort reform, it comes in no small measure from mainstream media and Internet reports (many of which are simply false) of ridiculous lawsuits.
I’m digressing from this story now, but one of the problems personal injury lawyers have in fighting back against the tort reform movement is their refusal to appreciate valid arguments made by reform advocates. For example, as a student of economics, no one will ever convince me that medical malpractice damage caps don’t decrease doctor’s insurance premiums. So why on earth do we keep arguing this?
I also think we have to concede that there is a “tort tax” and that litigation in pure economic terms is counterproductive. So is social security on many levels but the system stays because it brings about a greater good. According to the Consumer Product Safety Commission, every year about 4,500 deaths and 13.7 million injuries occur as a result of defective products in 15 different categories. Not included in these classifications are motor vehicles, drugs, medical devices, and toxic substances. It seems like the “wild west” with respect to consumer safety even with the risk of lawsuits. What would these numbers be like without tort litigation? The reality is tort litigation costs money but saves lives.
Of course, there is another argument against limiting plaintiffs’ tort recoveries. If you are injured as a result of the negligence of someone else, who should pay for those injuries, the innocent victim or the person responsible? Litigation provides some measure of justice. The problem with using the justice argument to fend off tort reform is that no one sees themselves as the tort victim until they are the tort victim. People who strongly support efforts to reduce jury awards rarely hesitate to file a claim or a lawsuit when they are seriously injured as a result of someone else’s negligence. I’ve represented many of these people. Are they greedy hypocrites? I don’t think so. I think they see the world differently when they step into shoes they never expected to be in and were statistically unlikely to wear: the serious injury victim. It changes the way they think and they no longer care about the “tort tax” but about fairness and justice and the lives saved by personal injury lawyers who help in the battle of keeping corporations focused on what almost everyone agrees should be their first priority: consumer safety.
“The Maryland Lawyer” section of the Maryland Daily Record today has an interesting article on the impact of the economic slowdown on Maryland lawyers and the fears of law students looking for a job. The article reports that a number of law firms nationally are “axing” lawyers, including Cadwalader, Wickersham & Taft LLP, Dechert LLP, Clifford Chance LLP, and Thelen, Reid, Brown, Raysman & Steiner LLP. (I had originally included McKee Nelson LLP on the list because they were included in the Daily Record article. I have since been corrected by email by them that "McKee Nelson conducted a voluntary program last October through which a number of capital markets lawyers volunteered to take partially paid sabbaticals to work for not-for-profits, transfer to other areas of practice, take buyouts, or seek jobs with our clients.") Other firms such as Pillsbury Winthrop Shaw Pittman LLP are limiting their summer associates and Sonnenschein, Nath & Rosenthal LLP has taken back job offers, presumably to incoming lawyers.
To really scare big firm lawyers, the article mentions the 1992 dissolution of the Baltimore mega law firm of Frank, Bernstein, Conaway & Goldman.You can always gauge the legal market in Maryland by the reaction to the mention of the Frank, Bernstein, Conaway & Goldman breakup. In the best of times, the mention of that ghost brings on “That could never happen to us” chuckles. During a bad legal market in Baltimore, any mention of that dissolved firm evokes some response in a self-conscious “That could not happen to us. Right? Right?” tone.
The prospect of the collapse of one of Baltimore’s major law firms would be very unlikely because today big law firms are run more like a real business than they were in 1992. As this article points out, Frank Bernstein probably could have been saved if they had terminated partners, an unseemly practice in 1992 but de jour today. The old days of making partner and becoming a “made man” are long gone, which makes a lot more economic sense for a law firm facing a downturn in the market.
This article makes clear that Venable, Miles & Stockbridge, and Piper DLA are in public denial about the impact an economic slowdown/recession has on their firm, pretending that the Baltimore-Washington market is somehow significantly more immune from an economic downturn than other markets. I think these lawyers are smart enough to be preparing for the impact of a downturn in the legal market and are taking steps to mitigate their risk.
Accident and medical malpractice lawyers tend to think they are immune from an economic slowdown because litigation generally remains constant in good and bad economic times. But there is some impact because many lawyers handling real estate and other economically sensitive areas of the law migrate to litigation – specifically personal injury – during economic downturns, which does have some impact on personal injury lawyers.
The Associated Press reports Liberty Mutual will purchase Safeco for $6.12 billion.
Liberty Mutual is fast becoming an insurance company powerhouse. Their marketing paradigm, for whatever reason, is regional, so car accident lawyers with Liberty Mutual often see the names of its regional companies: America First Insurance, Colorado Casualty, Golden Eagle Insurance, Hawkeye-Security Insurance, Indiana Insurance, Liberty Northwest, Montgomery Insurance, Ohio Casualty, Peerless Insurance and Wausau Insurance Companies.
With this merger, Liberty Mutual will become the country's fifth-biggest property insurer. Our lawyers in Maryland deal mostly with Liberty Mutual, Ohio Casualty, and Montgomery Insurance. I believe the Maryland cases are going to be put under the Ohio Casualty umbrella, according to an Ohio Casualty adjuster I spoke with yesterday who had our case – which was a Montgomery Insurance case – transferred to him.
Relatively speaking – an important qualification – I think that both the Liberty Mutual insurance companies and Safeco are fairly reasonable to deal with in personal injury cases, although my partner Laura Zois was forced to try a case a few months ago after a ridiculous offer from a Safeco adjuster that I really like. The jury apparently agreed and awarded approximately five times the settlement offer.
There was an incredible story in the Tampa Tribune Sunday about two lawyers who chose the attorney-client privilege over revealing that their client had killed a security guard at McDonald’s. Another man, Alton Logan, has spent 26 years in jail for the murder.
It is unethical for a lawyer to reveal privileged information obtained from a client. It may also be unethical for a human being not to when a person is in jail for a crime that he did not commit. Interestingly, the lawyers decided they would come forward if the innocent man was given the death sentence, but they would remain silent if he was given a life sentence.
I do not mean to criticize these lawyers, because obviously they wrestled with what was the correct thing to do. But I think the easy path a lawyer can take in this situation is to do that which puts him out on a limb the least. For lawyers who say that the attorney-client privilege must come first, I would ask them what they would do if the innocent man was their sibling, parent, or child. Okay, now we all agree that the attorney-client privilege does not come first. So now the question is what do you do when that innocent person is someone you do not know? Would it matter if the man was a loving husband and father with no prior criminal record or a guy with a rap sheet as long as your arm? I'm grateful I'm not a criminal lawyer.
You can find the article here:
The Maryland Daily Record has an article in its Maryland Lawyer section this morning on associate retention in Baltimore law firms. I was amazed to read that one lawyer, who is on his third job, expressed dismay that his two previous law firms never asked him the kind of work he wanted to do. He says he was told, “Here are the cases we have, here are the clients we have and we’ll give you the work.” He complained that no one ever asked him, “What do you want to do?’” he said.
Tragically, these law firms only gave him the work that it had, not the work he wanted. Our law firm handles only personal injury cases. But if we had a lawyer who said, “Hey, I don’t want to handle personal injury work, I want to do mergers and acquisitions,” we would obviously run out and immediately pick up JPMorgan or Bear Stearns as clients. Are you telling me every law firm does not operate this way?
These cold sweat shop law firms that do not allow you to pick the work and the clients you want to do are the same kind of law firms that actually expect you to come to work on rainy days like today. The inhumanity!
As most personal injury lawyers know, in Maryland the jurisdictional maximum is $30,000 in District Court, but if you request more than $10,000 in your complaint, the defendant can “bump the case up” to Circuit Court for a jury trial. Maryland personal injury lawyers were hoping to see an increase the jurisdictional minimum to $20,000 before defendants have the ability to bump up the case.
A bill introduced in the Maryland legislature this session would have done exactly that by increasing to $20,000 the minimum amount in controversy in which the District Court has exclusive jurisdiction. This is would be a real win to relatively small claims plaintiffs seeking between $10,000 and $20,000, who could be assured of a faster and more expedient trial as opposed to the risk of additional time and expenses that would be incurred in a Circuit Court trial.
It makes sense to allow plaintiffs to keep smaller claims in District Court because the cost benefit of smaller cases should not require Herculean efforts for a relatively small award. Of course, insurance companies opposed this bill for that very reason: they want to require injury victims who do not accept what they offer to have to wait longer and subject them to more inconvenience (deposition, more lengthy interrogatories, etc.). To make this argument, the insurance companies who are contemptuous of our jury system were required to bask in the rich irony of insurance companies defending right to a jury trial. But insurance companies embrace painfully contradictory positions like Trevor Immelman embraced that Masters green jacket yesterday: with joy and without hesitation.
Anyway, Maryland Senate Bill 404 was amended to reduce the District Court exclusive jurisdiction to $15,000 but it died on the floor of the Maryland Senate quietly and without any fanfare by one lousy vote.
Another great bill that was introduced was Maryland House Bill 404 which would have increased the minimum small claims from $5,000 to $10,000. Arguably, this bill would have hurt personal injury lawyers because it would allow people to bring their own small personal injury claims without a lawyer. Of course, this is why it would also be a good bill. Injury victims who did not accept the insurance company’s offer, but also could not or did not want to hire a lawyer, could bring a claim without any technical requirements, most notably the need to file a 10-104, which most victims do not know how to do. Again embracing paradox, this time of insurance companies wanting injury victims to have to hire a personal injury lawyer, the insurance company lobbyist were able to defeat the bill. Maryland House Bill 404 died in the House Judiciary Committee.
A couple of good things came out of this session for personal injury lawyers and their victims. First, Maryland House Bill 16 passed which changed the draconian 180 day statute of limitations in Local Government Tort Claims Act claims to a slightly less draconian 1 year statute of limitations. Second, Maryland Senate Bill 736 now allows for service of process on out-of-state defendants by serving the Maryland Motor Vehicle Administration. Finally, as I wrote about in October, there was a new law creating additional hurdles for Maryland lawyers in getting police reports that was repealed in pertinent part, getting us back to the “you request a police report and you get it without too many hassles” days.
Finally, in a note completely unrelated to personal injury cases, the Maryland House Judiciary Committee rejected HB378 which would have increased the penalties for abuse or neglect of animals and aggravated cruelty to animals. Under this proposed bill, a person convicted of abuse or neglect of animals or aggravated cruelty to animals would have to receive psychological counseling. The bill would also prohibit the court from suspending any part of a 1-year mandatory minimum sentence for aggravated cruelty to animals. If made law, this bill would have been a powerful message to those willing to impose needless cruelty on animals. Unfortunately, animal victims do not have a lot of lobbyist fighting on their behalf.
D.C. Dicta has a good blog post about potential Supreme Court nominees for the three (no offense Ralph Nader) remaining presidential candidates.
For years, I have followed the Supreme Court developments but always far more as a citizen than as a personal injury lawyer. But the Supreme Court's heartbreaking decision in Medtronic v. Riegel (which I still think will legislatively overturned under a President Obama) and a decision in Wyeth v. Levine expected next year, I'm paying attention more and more as a lawyer.
The FDA yesterday raised its current count of estimated heparin related deaths from 19 to 62. The FDA qualified its finding by pointing out that reports of allergic reactions or low blood pressure after the use of heparin do not necessarily mean heparin was a contributing cause to the death. I’m sure this is true. But the FDA puts this qualification in some context by noting that there were only three heparin allergic reaction deaths reported in 2006.
As I wrote earlier today, many people taking heparin have other health risks, but the number of heparin death cases calls we are receiving leads me to believe that, tragically, 62 reported deaths may be just the tip of the iceberg. (Hopefully, I'm wrong.)
Our Baxter heparin recall lawyers are accepting defective heparin cases throughout the country. Our law firm is handling only very serious injury and death cases. If you want to discuss your heparin case with one of our heparin contamination recall lawyers, call us for a free consultation at 800-553-8082 or click here for a free Internet consultation.
A new child car seat law, Maryland Senate Bill 789, passed at the end of the Maryland legislative session last night at 9:10 p.m. Children in Maryland will now be required to remain in car seats until their 8th birthday unless they are over 65 lbs or over 4 feet, 9 inches tall.
This is a good development for child safety in Maryland. We are now a long way from bouncing up and down in the back of our parents station wagon.
In a Howard County case against local car giant Antwerpen ("Jack says yes!"), the Maryland Court of Special Appeals ruled that a purchaser of a used car must offer expert testimony as to causation where she claimed that the repairs to her car were needed based on defects in the car at the time of sale in violation of the Magnuson-Moss Act.
Plaintiff advanced two arguments as to why an expert was not needed. First, she argues that, under the Magnuson-Moss Act, a consumer need not prove a specific defect. Second, she argues that Maryland law does not require expert testimony where, as here, the particular product requires so many repairs. Interestingly, Plaintiff's lawyer had named an expert but then withdrew the expert in response to a motion in limine to exclude the expert.
Writing for the majority, Judge Harrell rejects both arguments. In perhaps a sign that Judge Murphy is going to be a voice for the rights of consumers (and presumably injury victims), he wrote a concurring opinion agreeing that although an expert was needed in this case because there was evidence that work was done on the car outside control of the defendant, he wanted to make clear that an expert is not needed in every breach of warranty claim involving a product defect. Specifically, Judge Murphy wrote that if a plaintiff testifies that, "I bought the car new, it's still under warranty, it hasn't been stolen or broken into, I have complied with all of the manufacturer's maintenance recommendations, I have made no modifications to the car but it won't go more that 15 miles per hour," then a jury question is generated even in the absence of expert testimony.
Click here to read the full text of the opinion.
