Maryland Lawyer Blog

The FDA reported yesterday that the number of deaths from Baxter's blood thinning drug Heparin had risen from 4 to 21. Approximately half of the country's supply of heparin has already been removed from distribution and an expanded recall is expected.

Our Baxter heparin recall lawyers are reviewing both individual and class action defective heparin recall cases throughout the country. If you want to discuss your case with one of our Baxter heparin recall lawyers, call us for a free consultation at 800-553-8082 or click here for a free Internet consultation.

Big Vanilla in Pasadena and Severna Park is being sued by the U.S. Equal Employment Opportunity Commission on behalf of four women for the sexual harassment of all four women and the firing three of them in retaliation for complaining, according to the Maryland Daily Record and the Baltimore Examiner.

Dawn Wooden, Joella Hopkins, Melissa Mendez, and Michelle Cabral said they had been subjected to “repeated, unwanted, sexually offensive remarks and sexual advances” by co-workers and supervisors since December 2006. The commission said the women were discriminated against by Big Vanilla on the basis of their sex and their work environment was “sexually hostile” due to offensive comments and unwanted touching. When they complained, they were fired by Big Vanilla (with the apparent exception of Ms. Mendez).

The EEOC said it is seeking monetary and injunctive relief against Big Vanilla, including back wages and compensatory damages, for the employees, and changes in Big Vanilla's employment policies.

Debra Lawrence, the EEOC supervisory trial attorney said that while the lawsuit against Big Vanilla currently involves four women "there are more in the works."

Related Post

The Maryland Daily Record had a quick blurb about a bill introduced by Maryland State Senator Nancy Jacobs, a Republican from Hartford County, exempting nursing mothers from jury duty. Senator Jacobs claims that she knows of many instances in her district where breast feeding mothers were required to serve on juries.

Judges are quick to ignore a lot of excuses for serving on jury duty. But I don't think I have ever been in front of a judge who I think would not excuse a breast feeding mother.

In the vast majority of personal injury cases, injury victims are going to be better off hiring a personal injury lawyer to handle their claim, particularly in serious injury cases. I offer some of the major reasons why here. But many people for a variety of reasons - most of them foolish - are going to chose to handle their own claims. Accordingly, I have drafted a list of things that are generally a good idea to do or not do if you are trying to handle your own personal injury case. You can find these tips on handling your own personal injury case here.

Why do this? Because people are going to handle their own claims so I think personal injury lawyers should try to arm these people with a few weapons to get the best possible outcome. Not only will it help them, but it will help our clients as well because awful settlement are thrown into the pool of data to determine fair value in personal injury cases.

The problem with these tips is that they are not legal advice because legal advice is narrowly tailored to the specific facts of a particular case. So in a small minority personal injury cases, following all of these tips is going to hurt, not help your case because of specific facts that fall outside the general rule.

These tips apply only to personal injury car accident cases. They do not apply to serious injury medical malpractice or product defect cases. These cases, particularly medical malpractice cases, are very difficult to resolve without filing a lawsuit. Offers that injury victims may receive in these kinds of cases are rarely meaningful and this is usually very apparent by the offer.

The Bush administration published yesterday the names of 131 nursing homes with poor inspection records. To the surprise of not a single Maryland lawyer who handles nursing home cases, Manor Care on Ridge Road in Baltimore was on the list. You can find the full list here.

I found a new blog called ER Stories - Shocking, Hilarious, Bizarre, and Sad Tales from the ER. It is an anonymously written blog by an emergency room doctor.

I have a bit of a problem assessing the credibility of someone who refuses to identify themselves. Does the American Medical Association take a position on this? I also notice the site has a lot of prominently placed Google ads. To borrow the old Seinfeld line, “Not that there is anything wrong with it.” But it is worth noting.

Anyway, one of his leitmotifs is frivolous medical malpractice cases, as evidenced by his post called “What a Wonderful Legal System We Have.” He tells an incredible story of a patient who came in with a fractured ankle but ran out of the hospital to flee police. After getting arrested a few days later, he gets treatment and then brought a medical malpractice claim against the hospital, which the hospital settled for $10,000.

Doc… I’m not quite sure how to… say this. Wait, I got it. You are a liar. This story you are telling? This never happened, at least not with these material facts. I guarantee it. This is right up there with the guy who put his Winnebago on cruise control and went back and made himself a sandwich and then sued for millions.

Doc, instead of making $1 a click on Google Ad words I have a way for you to make more money faster. Prove this happened and I’ll send you a check for $1,000.

The Maryland Daily Record published a story today about a St. Mary’s County, Maryland man who is bringing suit against adultfriendfinder.com and three anonymous users of the site for defamation and false light invasion of privacy over the posting of sexually explicit pictures of his wife.

I hope more information comes out about this story because I have a lot of questions. First, the man claims that his reputation as a monogamous spouse has been smeared as a result of the inference that he is a swinger. This is nonsense on a number of levels. As a service to you, the loyal Maryland Lawyer Blog reader, I went to this website. There is no presumption that everyone on the site is part of a swinging couple. In fact, I think the major purpose of the site is to give couples a chance to pick up a third, if you will. This might cast some unfavorable impressions of his wife, who is very notably not a plaintiff, but it says very little about him and whether he has been faithful to his wife.

I would also be a bit curious to know exactly where sexually explicit pictures of his wife of 22 years came from in the first place. Three different users apparently have these pictures. There does not appear to be any suggestion that the pictures were stolen or unlawfully obtained.

I’m looking forward to seeing what develops from here. But I think this lawsuit is frivolous regardless of further facts, particularly against the website because the Communications Decency Act of 1996 bars claims against the website as a publisher. More to the point, I think all of this probably could have been avoided if the plaintiff or his lawyer had taken the time to have a long heart-to-heart talk with this man’s wife.

The New York Daily News reports that Brian McNamee has physical evidence corroborating McNamee's allegations that Roger Clemens used performance-enhancing drugs. The Daily News quotes Earl Ward as saying that "This is evidence the government has that we believe will corroborate Brian in every significant way."

Apparently, McNamee gave vials with traces of steroids and human growth hormone, as well as syringes and gauze pads ostensibly containing Clemens blood and DNA to Justice Department investigators.

Clemens admitted to getting B-12 shots from McNamee so I'm not a big enough CSI fan to know whether this sort of thing is going to be meaningful evidence. Obviously, his lawyers think so. "We will provide Congress with corroborative physical evidence that takes this case out of the he-said, she-said purview," another McNamee attorney, Richard Emery, told the Daily News (how many lawyers does this guy need?). "From our point of view, this corroborates that Brian told the truth from Day One and Clemens has not."

Certainly, it is a bizarre development. But what is creepy is that McNamee kept the vials, gauze pads and syringes from eight years ago because his lawyers say he feared Roger Clemens would deny using performance-enhancing drugs. But that makes no sense. At that time, he was committing a crime and presumably hoping that Roger Clemens would not be exposed. The more logical answer is that McNamee knew he had some pretty powerful evidence on his rich and famous friend and decided some incriminating evidence against Clemens might be a good thing to keep around. In other words, he pulled a Monica Lewinsky on his friend. (These syringes, Monica’s stained blue dress, Linda Tripp’s audiotapes, all of these things should be in the Judas Iscariot museum).

This might all end up being powerful enough evidence to show what most of us have suspected from listening to Clemens over the last few months: that Clemens had used some "help" after he left Boston to revitalize his career. But it also speaks very poorly to the character of Brian McNamee. Not only did he keep a chip to use against a friend, he also waited for him to commit perjury before revealing the chip. Why? I can’t figure out a motive other than malice.

If you assume Clemens is guilty, he really pushed all of his chips to the center of the table with Congress, hoping that regardless of what history records, it would always come down to a he (or "hes" depending on Andy Pettitte's testimony) said/she said and there would never be conclusive, beyond a reasonable doubt evidence against him. If - and it is a big if - the evidence conclusively demonstrates Clemens was taking performance enhancing drugs and lied to Congress, the current problems he has with his reputation are going to pale in comparison to the criminal charges he will be facing. Again, we are moving five steps ahead but it could be that the best batter and best pitcher of the last 50 years (I would argue this for both) could be facing perjury charges.

My blog on Friday on large law firms and their lawyers poked a bit of fun at my brother-in-law in Arizona, who is a partner in a very large firm. I forwarded him the post and got no response. Today, he responded with a comment to my blog which I have converted into a post. Apparently, he had an opinion on the subject. He also proved the point of my original post by using the word "untermenchen" at one point. This is his response:

In response to my brother in law, I would certainly agree that associate salaries fresh out of law school have just become plain silly. And I say that not because of the amounts at issue, but because of the incongruity between those amounts and the "new work ethic" of those now entering the profession. It is truly difficult to look someone in the face who is making $160K a year and seriously consider their views on work/life balance. That is not to say that our profession cannot make work/life balance a reality. It is to say, however, that those entering the workforce seem to think (and I concede this is a gross generalization) that they ought to be able to punch the clock 9-5 and still get those princely sums of money and bonuses. When an associate bills 1600 hours (10% of which is then written off for various reasons) and charges another 200 hours of non-billable time, and then calls it a year, I can safely say we are paying new associates too much.

The great myth orbiting big firms is the notion that their associates work like slaves. Over the last 15 years I have worked at two of the largest firms in the U.S. You would be shocked to learn that neither firm has succeeded in cajoling, begging, and/or threatening its associates to reach 1700 average associate billable hours across those firms. At my prior firm, average associate billables were below 1650 per year. So, the basic truth is, in any large firm, some people work ridiculously hard and ordinarily succeed. Some people work like mere mortals, hit around 1900-2000 hours, make good client contacts or develop their own business, and also succeed. Many, many more, however, jump into the pool for a few quick laps, sit at the pool bar drinking daquiris while their colleagues lap them, and then whine incessantly about their small bonuses and the sweatshop they have come to loathe. You may be surprised to learn that most large firms lose money (and a lot of it) on associates until they get into their 6th year of practice. Think about that. We make a 6 year investment, which is right around the time associates become truly marketable as individuals rather than as fungible commodities (no offense intended to newbies). It's akin to drafting a high school kid, giving the kid a big signing bonus, bringing him up through the minors, and as soon as the kid appears to be ready to start hitting .300 and stealing 40 bases a year, the kid goes free agent on you. I realize that is not the most apt analogy, but you get the picture. To use your analogy, consider pouring all that money into Jamarcus Russel, but as soon as it is time for him to take his first snap from center in a meaningful game, he just leaves and your investment was worthless. Enough on associate salaries.

I think my brother in law misapprehends the reasons many of us enjoy working in large law firms. First, to disabuse you of one common myth--while our profits per partner (PPEP) are well in excess of 1.3 million, the vast majority of our partners (and those at other large firms) don't see anything close to that, and I mean not close. Those big numbers reflect big money players with 10-15 million books. Frankly, they are doing me a favor agreeing to be in the same firm with me--I'm a bit of a sponge in that respect. Is it possible, then, that I would make considerably more money going out on my own? The answer is a very qualified maybe. First, I generate a lot of business for our other offices in other parts of the country--I would not be able to bring that work in (and therefore would not be paid for it) were I in a solo or small shop. Second, I receive a lot of work from other offices around the country, which I would also not get (and would not be compensated for) were I in a solo or small shop. Third, I admittedly like the creature comforts of a large firm--I can find an expert on anything you can imagine in my firm and I actually rely on that breadth of knowledge with some frequency. There are other creature comforts that go with this gig, such as never having to know how to use a copy machine or convert a document to pdf or scrub metadata, or prepare a powerpoint, or prepare a response to an RFP, ad infinitum. It's comfortable here. You are also correct that I enjoy the comaraderie--I work with a lot of good people throughout the country, who are truly friends of mine. I could go stir crazy in a small shop (not to mention the fact that my mercurial personality doesn't lend itself to working in close surroundings with a small group of people). Prestige is really not the issue. Frankly, where is the prestige when you get bashed day in and day out but solo practitioners, small firms, regional firms, etc.?

The post following my brother in law's simply confirms that people presume the worst about folks in large firms, and we have to try like crazy to overcome that presumption. Finally, I have to make a confession. The thing that makes me most likely to stay at a large firm is my intolerance towards unsophisticated purchasers of legal services. This is barely polite way of saying I cannot work with plaintiffs. I don't mean to suggest that plaintiffs are untermenchen or moronic. I simply prefer to work for/with individuals who appreciate the fact that (a) my time is their money; (b) their case/problem is not the only thing on my desk for the next six months; and (c) I'm a trained professional who does not need to be harangued constantly with emails and phone calls.

I have tried to do a little plaintiff's work and I can't handle it. The constant telephone calls for status updates. The constant self-absorbed obsession with the case as if nothing else matters. There, I said it. I'm not proud of it. But it's the truth--my truth. And that truth makes it hard for me to go solo because most folks in my practice area who go solo cannot survive on institutional clients alone--they have to do some plaintiff's work. While I know that I could retire very, very young by taking on a few FLSA 16(b) collective actions, the pearl simply is not worth the price.

Frankly, I find most of this to be a tempest in a teapot. The age old distrust between smaller firm practitioners and large firm practitioners makes little sense to me. I don't generalize about smaller firm attorneys. I don't assume they are less skilled, less intelligent, less ethical, or anything of the sort. In fact I make a point to drum into my associates a sense of respect for any opponent. Likewise, maybe I'm doing it all wrong, but I have yet to find a judge who will allow me to run a smaller firm lawyer out of the room by virtue of my supposedly superior large firm resources. I just don't see it--maybe it's the market in which I practice.

I wholeheartedly agree that smaller firm practitioners and many in the public sector numerically have extraordinary amounts of trial experience, and this does not hold true in large firms. I do think that this fact tends to overshadow the differences in practice, however. I have seen many, many Assistant US Attorneys and prosecutors come and go in the large firm environment. We bring them in because numerically they have hundreds of trials under their belt. They leave because qualitatively, they have little or no experience in the types of cases we tend to try. I have a law school colleague (read "ex-wife") who has tried well over 500 DUI trials as a prosecutor. She would not have an iota of how to try a Fair Labor Standards Act collective action with 50,000 class members nor would her style allow her to succeed even if she could master the process.

That is not to say that trial experience isn't important. It is critically important so I give my associates lots of loss leader small cases to try just to gain experience. However, quantity and quality don't always meet dead center when it comes to trial work. In 20 years I have tried roughly 20 cases. Nonetheless, I am EXTREMELY confident that I can try to a defense verdict an employment case better than someone with 100 non-employment jury trials because I know the subject matter better than anyone else (don't mean to brag but I'm making a point). More importantly from a client's perspective, I will obtain summary judgment in 95% of my employment cases because I have a command of my subject matter. I don't think someone with 500 trials can hit that percentage number without having travelled the path I have followed. In that respect, my brother in law is correct. As a young associate, I third-chaired (read "watched") countless trials by some of the best trial lawyers in this part of the country. I learned from every one of those experiences and put those lessons to work as I first-chaired my own trials later in my career. Had I simply started trying cases from day one, I firmly believe I would be a very different kind of trial lawyer. In a perfect world, we should all have those learning experience PLUS 500 trials under our belts, but that is pretty rare. That is what puts my brother in law in some very rarified air, having worked with big firm litigators early but then was able to try tons of his own cases. We would all love to have that combination of mentoring and actual hands-on experience, but it's very tough to get it.

The Maryland Daily Record's Blog reports that DLA Piper and Venable, the two Baltimore mega firms, have raised their associate starting salaries in Baltimore to $160,000.

I remember in 1995 when I was making $57,500 coming out of law school at a litigation defense firm in Baltimore that, at that time, was only a half notch below Piper and Venable in starting salary. Because other than being a law clerk, my next best paying job in life had been as a camp counselor making minimum wage, I thought I was a millionaire. (In a related story, I was still living at home.)

The Daily Record Blog asks if these young associates are worth 160K a year. The answer is clearly no. But three years from now, when they have quality experience and are billing out at $450 an hour while working approximately 28.7 hours a day, the answer becomes a resounding yes. It is not dissimilar to the Oakland Raiders signing JaMarcus Russell to a six-year, $68 million contract even when they did not think he would be an asset to them in the first year of his contract (they were right).

To collect this 160K a year, there is a catch. You actually have to show up and work there. I can honestly say that I would not take the job of a first year associate at one of these firms if they offered me $1,000,000 a year. If you can walk into some of these big firms - I'm not speaking to Venable and Piper specifically – you will see many of their lawyers are blinking t-o-r-t-u-r-e in Morse Code. These are tough places to work, especially if you have a family and other commitments. For a great fictional account of big firm life that is absolutely hysterical, check out the Anonymous Lawyer Blog.

If you read a lot of blogs, you might be rolling your eyes that another personal injury lawyer blog is bashing big (defense) firms. Well, you are, I guess. But there is a reason while DLA Piper has over three thousand lawyers: all things considered, including I’m guessing the money, it works for them. While the big firm life was certainly not an environment in which I thrived, I have a lot of friends who tolerate it quite well. My brother-in-law is a fantastic lawyer. I’m always running issues by him even though he does not do personal injury work. He is a partner for a mega firm in Arizona. He has tons of his own clients and bills out at roughly $10,000 an hour. Of course, I'm telling him, "Geez, take those clients and go start your own firm, you can retire (and I can retire off you)." But he enjoys that power, resources, support, and camaraderie with so many other lawyers that a big firm provides and would never consider anything else. (In a related story, one of his big hobbies is using vocabulary words I’ve never even seen before in emails.)

It is a Friday and I’m stalling getting back to work so I’ll make one other big firm comment. The jab every small firm trial lawyer loves to make about mega firm lawyers is that a first year lawyer after two weeks on the job as a district attorney usually has a great deal more trial experience than a large firm lawyer that has been practicing for 15 years. This drives big firm lawyers crazy because there is a lot of truth to it. But I started practicing law at a pretty big firm and we were national counsel for pharmaceutical companies, working with a lot of mega law firms around the country. A lot of those lawyers had little or no trial experience. But they were smart people who had given a lot of creative thought to how to prepare a case for trial. Sure, some of these lawyers would fare about as well as your cousin Elmo in front of a jury. But working with these lawyers – including the Elmos - I think was great experience as a young lawyer that served me well when I began preparing and trying cases. I also saw many the best plaintiffs' lawyers in the country and some that were not so good. I learned a great deal from both.