By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.
A few weeks ago, I reported on a verdict we got against State Farm in Baltimore County. I inadvertently stumbled on the Maryland Daily Record article on the case today.
Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.
By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.
This doctor in a case John Bratt tried recently was not, ah, particularly comfortable with his own explanation of why he destroyed 1099s that came to him. Gee, I wonder why that would be? Could it be because there is not an accountant in history that actually recommends not looking at and then destroying tax documents?
This is the testimony at trial:
I'm not going to name the expert because I don't think it is right to raise these issues online because the expert does not get to argue his position. (This blog typically does not name any non-public figures.) But, really, how do you defend this answer?
Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.
By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.
I spent a good portion of last week preparing for a trial scheduled for today that settled on Friday. It is a little depressing how many man hours our firm spends every year preparing cases for trial that settle. But every time you really prepare for a trial, you learn and, sometimes more importantly, relearn law and strategies that help you down the road.
The trial was an auto accident case pending in Prince George’s County. The evidence in the case would show a classic chain reaction car accident: Vehicle #2 rear-ends Vehicle #1 and Vehicle #3 hits Vehicle #2 which hits Vehicle #1. Plaintiff felt two impacts which could only happen under this fact pattern.
Plaintiff’s treating orthopedic surgeon would testify that the injury is related to the accident. The problem – which caused me a momentary freakout – was that the doctor could not parse which accident caused the injury. How could the doctor possibly know which accident caused the injury?
We have joint and several liability in Maryland and there is no question that there can be more than one proximate cause of an accident. But my fear was that because the first impact was clearly more significant than the second this fact would highlight to the court that Vehicle #3 may not have been a significant contributor to Plaintiff’s injuries. So, the driver of Vehicle #3’s lawyer (Erie Insurance) could argue that there is no evidence that his negligence actually caused injury. Then, Vehicle #2’s lawyer (also, ironically, Erie) would argue, you know, that same logic applies to us. Even if our drivers are negligent, the joint argument goes, how is this different from a drunk in a bar throwing a punch that never lands? Negligence in the air is not negligence.
I couldn’t put my hands on it right away but I was confident there was Maryland law that would save me from this argument. See Thodos v. Bland, 542 A.2d 1307, 75 Md.App. 700 (Md. App., 1987) and, even better, Consumer Protection Division v. Morgan, 387 Md. 125 (2005). But even with that law, I was struggling with the rationale. I wanted a source more reliable than my own argument of “it would be even more unfair if the plaintiff could not recover in such a case.”
Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.
By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.
When an insurance company gets a claim, the first thing it does is look for ways to deny the claim before getting to the merits. I don't say this derisively. This is how the game is played.
One insanely overused method of avoiding getting to the merits of a case is claiming the defendant driver was not a permissive user. Insurance companies often take remarkably strained views of what is required to allow permission for another to use the owner's vehicle.
This morning, in Agency Insurance v. State Farm, a wrongful death car accident claim, the Maryland Court of Special Appeals gave Maryland insurance companies a little bit more ammo for this defense. The opinion was written by Judge Irma S. Raker, one of the more conservative judges on the Maryland Court of Appeals who is now retired and was specially assigned to the CSA. The case involved two passengers who were killed in an accident in Frederick County. The battle between these insurance companies was over permissive use. The court found that the vehicle owner's daughter, a senior in high school who was killed in the accident, did not have permission to give permission to her boyfriend to use the vehicle.
But here's the thing: the boyfriend had used the vehicle before with the owner's permission. The only argument State Farm had was that there was no specific permission in this case. The only person who could have rebutted that testimony would have been the owner's daughter who was killed.
I believe the court slices too thinly over the question of whether the daughter's boyfriend had permission to drive her mom's car. Because there are too many variables at play. When she allowed the boy to drive the car before, was it made into a big deal or was it a "sure, of course" type response? Assuming there was not a fatal accident, how mad would she have been if she had learned that the boy was driving the car? There should be a bright line rule to avoid this Serbonian bog and it should err in favor of coverage.
Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.
By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.
Good news for plaintiffs to start of the week. Rod Gaston, a lawyer in our office, tried a Reflex sympathetic dystrophy (RSD) case in Baltimore County last week against a State Farm insured. The offer in the case was $37,000. After hearing evidence for three days, the jury returned after an hour with a $663,821.15 verdict.
Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.
By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.
Paul Luvera provides a really good outline on cross examining experts on bias.
Our firm has spent a lot of time, effort and energy trying to be able to effectively use this outline by getting the answers to the question defense experts sedulously avoid: how much do you make testifying in accident cases and how much have you made from this law firm/insurance company?
I think we have fought this issue as hard as anyone in Maryland, recently getting a helpful Maryland Court of Appeals opinion that makes more clear what Maryland law is on the scope of the expert's obligation to produce financial records.
I know a lot of insurance defense lawyers in Maryland think we do this to harass their experts. I get why they think this. There is too much gamesmanship in Maryland accident cases between plaintiffs' accident lawyers and the insurance companies. Both sides are guilty of this. But with this expert issue, the reality is that jurors do care more about bias then they do the doctor's pedigree. We care about this issue so much because we think it makes a difference to jurors.
This does not mean that jurors think or even I think that because an expert makes a large amount of money for testifying it means that the expert is lying. I think there are some experts - including some defense experts - who testify regularly and still shoot straight. But let's not kid ourselves either: there are a lot of frequent flyer experts whose opinions are colored by who is paying them.
Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.
By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.
Metro Verdicts Monthly graph this month is the median verdict and settlement value of shoulder surgery lawsuits that have gone to trial over the last 23 years. The average settlement/verdict in Washington D.C. is $59,500. Maryland is less than half that: $42,636. The average settlement/verdict in a wrist fracture case in Virginia is $60,000.
You can find here some old data on rotator cuff injury cases.
Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.
By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.
Ask any accident lawyer about the use of statistics in valuing personal injury accident cases, and you will get an almost universal answer: they have little or no utility. Yet I've never looked away from average verdict data and I've never known a personal injury lawyer who did. Even if you conclude it is useless, you can't help but be curious.
Jury Verdict Research published a 10 year study on knee injuries. Our law firm has gotten pretty good results in knee injury cases. The study confirms this is for pretty good reason. The average knee injury verdict is $173,552. But with more serious knee injuries, that average jumps higher. The average cartilage and ligament damage jury verdict is $347,831. Conversely, a knee strain verdict averages $70,055.
Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.
By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.
Statistically, I think accident victims are always better off hiring a lawyer for many reasons not worth fully exploring here. But if there is any type of accident claim where an injured victim can justify proceeding without a lawyer, it is in the classic soft tissue/whiplash injury accident case with clearly no permanency. The benefit an experienced accident lawyer can bring to a case is going to vary inversely with the severity of the injury. While, obviously, I’m not offering legal advice to you if you are not a client of our law firm, this is a generalized list of what you should consider in handling your own soft tissue whiplash injury case in Maryland without a lawyer:
Recorded Statements
You can settle your own case and still not give a recorded statement. The myth is that if you are honest, a recorded statement can’t hurt you. It is not true, for reasons that are discussed more fully here. There is no obligation to give a recorded statement to the at-fault driver’s insurance company in Maryland.
That is the short answer. The longer answer is more complicated. In some cases, our accident lawyers do allow the client to give a statement for reasons that are too complex to address here. In uninsured motorist cases in Maryland, arguably you are required to give a recorded statement as a condition of recovery.
Get Pictures of Accident and Injuries
Get photos of your car, any visible injuries that you have, and the scene of the accident. This is critical to establishing liability and the scope of your injuries. There are lots of studies that say there is no correlation between the severity of the property damage and the victim’s injuries. But, intuitively, these studies don’t make sense to any of us. We all figure that the more serious the accident, the more likely there are to be serious injuries. Insurance companies definitely feel that way and offer more in “good impact” cases.
Collect All of the Medical Records and Bills
The guts of a soft tissue injury claim are contained in the medical records and medical bills. Collect them all. The insurance company is obligated to compensate you for all medical bills that you incurred from the accident, regardless of whether these bills have already been paid by PIP or health insurance. Insurance companies have made billions pretending this rule – called the collateral source rule – does not exist when settling accident claims with victims without lawyers (or with clueless lawyers).
Medical Treatment
How much medical treatment should you get? If you treat too little, the insurance company says you are not really hurt. If you treat too much, the insurance company says you are milking the bills to try to get a better settlement offer. In the end, the best way to maximize the value of your soft tissue injury case is to listen to your body and your health care providers and do what you and they think you should. Serendipitously, this also happens to be the best thing for your case. (Parenthetically, if you are thinking of getting additional medical treatment or tests because you want to increase the value of your case, please stop reading this. I don’t want to help you.)
Figure Out the Statute of Limitations
Again, going forward without a lawyer – actually, going without a good, experienced accident lawyer – comes with risks. One of those is getting the statute of limitations wrong. It seems easy enough. But there are so many ways to get it wrong. Without having a lawyer review your case, you are taking a risk because there are general statutes of limitations and sometimes more specific statutes in some jurisdictions. In most cases, you will be fine without a full analysis of the details of the statute of limitations issues, but obviously, you are running a real risk. If you think this is a risk worth taking, at least do some research. In many states, including Maryland, the time allowed for bringing a claim against a governmental agency or its agents or employees has a statute of limitations that is a small fraction of the general statute of limitations (and it is hard to always know in what capacity the defendant driver was acting at the time of the accident).
Talking to Your Health Care Providers
Tell your doctors and your health care providers everything that they need to know about your current condition and past medical history. But also keep in mind that everything you tell a health care provider may well show up in your medical records. So if you knocked over a convenience store 10 years ago, you might want to keep that under your hat.
Don’t Lie to Your Doctors… Or the Insurance Company
The big mistake we see people make time and time again is that they shade the truth or flat out lie, thinking that no one will ever know. Who could possibly know that I hurt my back 8 years ago in a skiing accident in Colorado? The insurance company - that is who. It is counterintuitive for some but the best way to maximize the value of your case is to be completely truthful to everyone at all times. You don’t have to offer up every skeleton in your closet. But it does mean that you should not tell anyone anything or put it in writing unless it is 100% accurate. Do liars sometimes get over on the insurance companies? Absolutely. But, I’m telling you, statistically, the liars and exaggerators do not do as well as clients who play it straight.
Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.
By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.
I almost universally like Progressive insurance adjusters. Progressive's claims adjusters seem nicer, more professional, and less inclined to take cases personally than a lot of other insurance companies. I can say the same thing about Progressive's lawyers. Most are decent, straight shooters and good lawyers. Oh, yeah, Progressive's stock (NYSE:PGR) has done fairly well since early February.
I've fully exhausted the list of nice things I can say about dealing with Progressive. This insurance company just does not make fair settlement offers in car accident cases. I believe that in a given case if you could line up all of the insurance companies and ask each one to make an offer based on their evaluation of the injuries from a car accident, Progressive would give the lowest settlement offer on that case. I also think Progressive would be the first to deny liability in an accident case.
Why does Progressive do this? Largely because it often has so little to lose. My theory with Progressive is that it tries to compete on the Internet for car insurance buyers fighting hard for the lowest price. These are often the same buyers who are not willing to set their liability insurance limits at a reasonable amount. When you trademark the phase "Name Your Price" in selling insurance, you are probably not selling a ton of coverage. So with its small insurance policies, often $20,000 in Maryland, Progressive can stick its neck out knowing that, in the end, it can fold before trial and their exposure is limited.
For example, we have one tough case where a man's life was pretty much destroyed by a car accident in Ocean City. It is a rear end accident, he only has around $20,000 in medical bills but he needs a future surgery. So what is Progressive's settlement offer in the case? $5,400.
So Progressive hires its own expert to say the guy is not hurt, right? Actually, no. Progressive's own expert did an "independent" medical exam and found that all of the medical bills were related and agrees that all of the treatment was necessary. Don't take my word for it, this is the defense expert Progressive hired in the case. (Here is a redacted copy of Progressive's doctor's independent medical exam.) I think it is beyond ridiculous that this expert suggests that half of his surgery should be attributed to his preexisting condition because he had "mild degeneration of the cervical spine" before the accident. But even if all of the plaintiffs' treating doctors get the Ebola virus, even if Progressive's expert becomes our expert, our recovery at trial is going to be far, far in excess of Progressive's policy limits.
Progressive has a small in-house defense firm in Maryland and does not have the resources (I should say has not set aside the resources - Progressive has lots of resources) to wage war with plaintiffs' lawyers throughout Maryland. So Progressive will often increase their settlement offers substantially after a lawsuit is filed. In this case, Progressive has rung up a lot of legal bills but will still have to settle the case for the policy limits. It would have saved Progressive a lot of litigation costs to properly evaluate this case at the outset.
Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.
