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Litigation Themes

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Sat, 04 Oct 2008 18:05:00 +0000

I have been reading and studying the use of themes in litigation. I thought some of what I have learned might be helpful to you. As I research on this issue I actually found a lot of material but very little concisely condensed material.

First themes are essential to success in litigation. I found a great deal of really useful information by ordering and listened to audio recording of trials in the area. I typically select the larger verdict trials. If you are interested in doing this also it is easy. You can order the audio and video (video in Baltimore City circuit court, with the consent of parties or counsel) for about $25-$45 per day of trial testimony. Interestingly I discovered every successful plaintiff's case is really just the advancement of themes. The successful attorneys have captured the simplest understanding of the human drama of their case and reduced it to a easily identifiable set of concise words. Those successful themes inherently carry the proposition that the defendant has made a careless choice and is now trying to side step responsibility for the harms by dodging responsibility or passing the buck. Like revenge these themes are best served cold and dispassionately. One author proposed developing a theme by first asking yourself what do you want from this case and then outlining the facts that support why you should have it. Others propose a similar formula which ask why should I win this case? All agree formation of the theme early in the case even before discovery is essential. Understanding the theme will be modified to changing facts as discovery progresses. Once trial is viewed as theme advancement evidential issues become some what secondary requirements. Obviously necessary but still secondary to theme advancement.

Wrongful Death In Maryland Personal Injury

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Wed, 01 Oct 2008 20:27:00 +0000

Wrongful Death In Maryland Personal Injury

The wrongful death statute in Maryland can be found in the Courts and Judicial Proceedings Article starting with section 3-901 through 3-904. Additionally Maryland Rule 15 -1001 must also be reviewed prior to initiating suit. The wrongful death statute defines the persons who are entitled to bring an action for wrongful death as a result of the loss of someone who has died. Specifically the claim may be brought by primary beneficiaries. Those persons are defined as a spouse, a parent, and the children of the deceased person. If there is no primary beneficiary then suit may be brought by secondary beneficiaries, who are defined as any person related to the deceased person by blood or marriage who was wholly dependent upon the deceased. A person is considered wholly dependent under the wrongful death statute when he or she existed financially entirely on the income of the deceased and has no other consequential source or means of being financially self-supporting other than income of the deceased. Even in circumstances where spouses are separated and near divorce the surviving spouse is still entitled to bring an action and obtain recovery. An illegitimate child may also qualify the primary beneficiary under the statute. Additional a viable unborn child at the time of the decedent's death may qualify as a primary beneficiary under the statute. However, a stepchild, stepparent or personal representative however is not permitted to be a claimant under the statute.

It is important to remember that primary beneficiaries who are not pursuing suit must still be named in the pleadings

Erbs Palsy

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Fri, 26 Sep 2008 13:34:00 +0000

This is an injury that can be caused at birth and often times is the result of medical negligence. There are specific protocols doctors and mid wives are trained to follow when they encounter a birth emergency such as the baby becoming stuck due to the shoulders not passing through the birth canal. The various protocols include:

McRoberts Maneuver: Where the mother is repositioned and flexing knees to abdomen

Surapubic Pressure: Where push pressure is asserted over the mother's abdomen.

Wood's or Cork Screw Maneuver: Rotating the child's upper shoulder downward and the downward shoulder up ward.

C- Section: Which is extracting the baby through surgery.

There are four major types of injuries which occur to the nerves in the brachial plexus network which can result in some form of palsy:

1. an avulsion meaning the nerve is torn from the spine.

2. a rupture meaning the nerve is torn but not where it attaches to the spine.

3. a neuroma meaning the nerve has tried to heal but scar tissue has grown around the injury placing pressure on the injured nerve praxis. While the nerve has been damaged, it has not been torn and improvement should be seen within 3 months.

4. Neuropraxia is the mildest form of nerve injury. Neuropraxia, the most common form of Erb's Palsy is localized to the specific place where the injury occurs. It is a physiologic block of nerve conduction within an axon without any anatomical interruption. Many infants born with brachial plexus palsy have neuropraxia and sometimes recover within 4-6 weeks.

If you are not sure if negligence was involved in your baby's injury call my office. We will investigate the cause for you and provide those answers at no cost to you. 1-888-760-7339.

Medical Malpractice in Maryland. Those Cases Matter Too.

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Wed, 24 Sep 2008 19:19:00 +0000

If you have been injured as a result of a doctor or hospital's careless treatment and you have been to the lawyers and each one tells you the damages do not justify filing suit call me before you give up the fight. A common opinion for many malpractice lawyers is that the case has to be worth seven figures to justify filing suit. I happen to disagree. I see many medical negligence issues each year where the damages are less then optimal but the case still has value beyond expenses. I am more then happy to give your case an initial evaluation or that final review after everyone has said no. Too frequently a blind eye is turned on those who deserve. This is done in favor of what many consider more prudent business decision making. Let my office be your last stop. Please feel free to call to discuss your medical malpractice case. 1-888-760-7339

Statute of Limitations in Maryland Personal Injury

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Tue, 23 Sep 2008 11:27:00 +0000

You must be very very careful on issues involving the Statute of Limitations. Once your period of limitations has run out you will be forever barred from filing suit against the person(s) that harmed you. My first advise to you is when you are injured in an accident no matter what type accident, car accident, medical malpractice, slip and fall, not matter what, first call an attorney who practices personal injury law in Maryland. If for no other reason simply ask, what is the statue of limitations in my case. Oddly in the last week I have had two calls from people who have waited until one month before the limitations is about to expire on their cases now seeking an attorney. Let me explain some thing right off the start. First off every attorney will suspect something is wrong with this case when they get a call this close to limitations expiring. Secondly, it is a horrible risk to any attorney to try to investigate a case to determine who needs to be sued in such a short period of time before limitations will expire. Generally when an attorney gets this type call the suspicion is other attorney's have already reviewed the case and rejected it for some reason and now the potential client is still looking for an attorney to take the case and time is running out. Always contact an attorney when you are injured. You do not have to hire them just ask what is the period of limitations. Please feel free to call. I will review the case for you and answer your questions right over the phone 1-888-760-7339.

Bad Faith Failure to Settle in Maryland Personal Injury Cases

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Mon, 22 Sep 2008 13:34:00 +0000

In the event you have damages that are in excess of defendant's liability coverage, setting aside the issues involving UM coverage for the moment, you can set up the potential for a bad faith claim against the defendant insurance carrier that might in the long run net you payment for the full extent of your client's harms. The Maryland personal injury case on point is Kremen v. Maryland Automobile Insurance Fund 363 Md. 663, 770 A.2d 170
Md.,2001. In this case defendant insurer had the chance to settle the case for policy limits however, refused to settle. The court determined the action for bad faith lies in tort and not in contract. In this case it was determined there was sufficient evidence in the record for the jury reasonably to have found that the defendant’s insurer did not fully investigate plaintiff's claimed head injuries. Because the jury was provided with evidence of the defendant insurers failure to investigate fully plaintiff's closed head injury claim and of plaintiff's willingness to settle unconditionally the underlying case for defendant's $20,000 policy limit, the trial court found that there was sufficient evidence before the jury to support its finding that defendant insurer acted in bad faith (negligently) when it refused to settle the case. The measure of damage was the difference between the policy limits and the amount of the judgment entered against the insured.

As a matter of practice when we conduct our initial client intake one of the first points of inquiry is UM/UIM coverage. Once our clients near completion of treatment we ball park value the case. When we feel we have an excess case we investigate defendant’s assets and upon confirmation of all damages forward a policy limits demand, if appropriate.

Maryland Personal Injury Discovery: Insured's Statements to Insurer

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Fri, 25 Jul 2008 11:28:00 +0000

I noticed that defense counsel is fond of issuing a subpoena to my client's PIP carrier to get the PIP application. As such at my office we exercise proper caution in drafting the responses contained in the PIP application. So the question arises; does the blade cut both ways. I mean if the defnedant can get my client's PIP application, why can't I get the defendant's statements to his insurance company. The answer is maybe you can get the statements. The Maryland court has considered the issue in Cutchin v State of Maryland 143 Md App 81 (2002). In this case the court determined the statements in this matter were not prividged and were subject to discovery. However, as dicta the Court articulated a two factor test to determine if the defendant's communications to his insurer are coverd as prividged communications between attorney and client. The two facts are (1) whether the communication was predominately related to the insured's defense and (2) did the defendant have a reasonable expectation that his communications were confidential. I suggest it is a reasonable discovery question to ask for any and all statements made by the defendant to any and all persons including but not limited to his insurer.

Expert Disclosure in Maryland Personal Injury

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Wed, 16 Jul 2008 15:47:00 +0000

What, if any, tolerance does the court have regarding expert disclosure as it related to late disclosure not of the actual expert him/herself, but rather their opinions or their reports. In Maryland a typical discovery interrogatory question will ask for the identification of expert witnesses and the basis and substance of their opinions. Additionally, the court's scheduling order will mirror this requirement and often provides a deadline for each party to disclose experts. So what happens when a party either does not fully comply with the discovery request or fails to disclose the expert opinions or provide a report to the other side. Maryland courts have addressed the issues.

Initially it is worth noting in Admiral Mortgage v. Cooper, 357 Md. 533, 545, 745 A.2d 1026 (2000), the Court of Special Appeals noted the appropriate sanction for a discovery or scheduling order violation is largely discretionary with the trial court. The Court qualified a “governing principle” and pointed out “the more draconian sanctions, of dismissing a claim or precluding the evidence necessary to support a claim, are normally reserved for persistent and deliberate violations that actually cause some prejudice, either to a party or to the court.” As such the scheduling order is not meant to function as a statute of limitations, and good faith substantial compliance with the scheduling order is ordinarily sufficient to forestay a case-ending sanction. See also Manzano v. Southern Maryland Hospital, 347 Md. 17, 29, 698 A.2d 531 (1997) (“dismissal of a claim ... is warranted only in cases of egregious misconduct”).

In the case of Kleban v. Eghrari-Sabet 174 Md.App. 60, 920 A.2d 606 Md.App.,2007 the court would not allow the plaintiff’s expert to testify to a particular opinion (ie future lost wages) since the opinion was not identified as a part of the opinions this expert would offer at trial. That makes sense if you fail to outline the opinion the expert is offered for then the expert can not testify to that opinion. Conversely in the matter of Food Lion v. McNeill 393 Md. 715, 904 A.2d 464 the court refused to sanction the non disclosing party when the aggrieved party waited until trial to raise their objection not as to the opinion expressed but rather to the disclosed factual basis for the opinion. The court determined the request for exclusion of the expert’s opinion at trial should have been raised as a discovery motion. In this particular case the non disclosing party identified the expert by name but did not set forth any opinions in response to discovery request. As such the aggrieved party created the harm they complained of by not pursuing the discovery failure.

In the matter of Helman v. Mendelson 138 Md.App. 29, 769 A.2d 1025 Md.App.,2001 the court would not permit expert testimony after multiple delays affecting production of expert opinions and an expert report. In this matter the expert’s report was produced only 2 days prior to a hearing on motion for summary judgment. The court found prejudice to the aggrieved party as the foundation for the decision. Conversely in the matter of Maddox v. Stone 174 Md.App. 489, 921 A.2d 912 Md.App.,2007. Trial court abused its discretion by excluding family's expert on ground that expert’s report was disclosed 34 days after deadline contained in scheduling order, in negligence action brought against electrical contractor by family injured in house fire, where expert’s identity was disclosed before deadline in scheduling order, contractor deposed expert well in advance of trial, another expert for family whose report was disclosed prior to scheduling order's deadline had died, family had not engaged in any willful or contemptuous behavior, and trial court did not consider whether any option other than exclusion was an appropriate response to the lack of strict compliance with the discovery deadlines in the scheduling order. The Court sited no prejudice to the other party. See also Lowery v. Smithsburg Emergency Medical Service 173 Md. App. 662, 920 A.2d 546 Md.App.,2007. Former employee's delay in filing report of expert two and one-half months after close of discovery and 12 days before trial was substantial, in action against former employer for defamation and intentional interference with economic relations, so as to support a finding that exclusion of the report was not an abuse of trial court's discretion; delay in obtaining the expert report did not allow appellees sufficient time to prepare their defense and was therefore prejudicial.

The court has outlined five factors to consider in determining whether to apply sanctions. Please see Lowery v. Smithsburg Emergency Medical Service 173 Md. App. 662, 920 A.2d 546 Md.App., 2007. In the exercise of its discretion when applying sanctions for discovery violations, a trial court must consider these five factors: whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.

You must disclose the expert opinions, (this is mandatory), however not necessarily the factual basis for the opinion (unless requested and compelled in discovery), and an expert report, if any, well in advance of creating prejudice to the other side. If you do not the court has the discretion to exclude your expert testimony if after applying the five factors the court determines there is prejudice to the other side.

Maryland Personal Injury Slip and Fall

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Tue, 15 Jul 2008 11:55:00 +0000

As in any Maryland personal injury case the plaintiff must provide liability and damages. Liability in the premises liability case or slip and fall as we generically refer to them revolves around notice. The owner of the property must have a reason to know of the danger and then fail to correct the danger or warn the plaintiff of the danger provided the plaintiff could not discover the danger himself with the exercise of ordinary care. Also, depending upon how the plaintiff is categorized the duty owned by the owner changes. For example the duty owed to a social guest is different then the duty owed to a business invitee. I find the most pertinent questions in my interview with a potential client is a slip and fall is what made you fall, how did the danger get there if you know, and how long was it there before you arrived. This last question is generally answered by circumstantial evidence. I once had a slip and fall at a gas station. My client feel on oil left by a prior vehicle. How long was the oil there before she arrived was a major problem. I solved the problem with eye witnesses who testified they saw foot prints in the oil and tire tracks in the oil. Some of the foot print stains actually travelled from the oil spill right to the attendant's window where customers pay. We won the case. The owners will always argue we did not know of the danger. However, if the danger was there for a sufficiently long enough period of time or the owner's own conduct created the danger, then you have some thing to work with in terms of proving liability. Since these are always difficult cases on liability the damages have to be adequate to justify the work the attorney will invest in the case. If you have a slip and fall case and you need to bounce it off an attorney please feel free to call. I am more then happy to review the facts with you and give you my opinion.

Statute of Limitations and Notice Requirements in Maryland Injury Cases

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Mon, 14 Jul 2008 17:16:00 +0000

In addition to the Statute of Limitations your Maryland personal injury case may also be controlled by a Notice requirement. I have outlined the various limitations periods and notice requirements on my web page. Please feel free to visit. And do be warned it is necessary to consult with an attorney on these very technical issues. If you miss a Limitations or a Notice requirement your case can be forever barred. Meaning you will not be able to collect any money in your case. It is also very important to take note of the proper persons to serve with the suit papers and the notice requirements. Again giving timely notice to the wrong persons can still create a bar to your recovery. If you are not sure of where you stand regarding these issues, please feel free to call my office.

Maryland Personal Injury Lawyer, Underinsured Settlement Procedures

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Mon, 30 Jun 2008 20:45:00 +0000

In the event you intend on settling your case with the defendant insurer (liability carrier) and your case value exceeds the defendant's policy limits you can seek additional money on your client's behalf from the client's underinsured motorist coverage. However, there is a procedure that must be followed. Please review § 19-511. Uninsured motorist coverage--settlement procedures

(a) If an injured person receives a written offer from a motor vehicle insurance liability insurer or that insurer's authorized agent to settle a claim for bodily injury or death, and the amount of the settlement offer, in combination with any other settlements arising out of the same occurrence, would exhaust the bodily injury or death limits of the applicable liability insurance policies, bonds, and securities, the injured person shall send by certified mail, to any insurer that provides uninsured motorist coverage for the bodily injury or death, a copy of the liability insurer's written settlement offer.

(b) Within 60 days after receipt of the notice required under subsection (a) of this section, the uninsured motorist insurer shall send to the injured person:

(1) written consent to acceptance of the settlement offer and to the execution of releases; or

(2) written refusal to consent to acceptance of the settlement offer.

(c) Within 30 days after a refusal to consent to acceptance of a settlement offer under subsection (b)(2) of this section, the uninsured motorist insurer shall pay to the injured person the amount of the settlement offer.

(d)(1) Payment as described in subsection (c) of this section shall preserve the uninsured motorist insurer's subrogation rights against the liability insurer and its insured.

(2) Receipt by the injured person of the payment described in subsection (c) of this section shall constitute the assignment, up to the amount of the payment, of any recovery on behalf of the injured person that is subsequently paid from the applicable liability insurance policies, bonds, and securities.

(e) The injured person may accept the liability insurer's settlement offer and execute releases in favor of the liability insurer and its insured without prejudice to any claim the injured person may have against the uninsured motorist insurer:

(1) on receipt of written consent to acceptance of the settlement offer and to the execution of releases; or

(2) if the uninsured motorist insurer has not met the requirements of subsection (b) or subsection (c) of this section.

Accident In Baltimore, The Lane Change

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Mon, 30 Jun 2008 11:46:00 +0000

Every personal injury lawyer in Maryland will tell you there are several types of cases you generally want to stay away from unless the damages justify the risk. The reason these are difficult cases is because the liability is sometimes difficult to prove. And as we all know, if you are frequent readers, the plaintiff has the burden to prove liability and damages. And so the red light/green light cases can end up being your word against mine. In which case the plaintiff looses since it is a tie. Likewise the lane change cases are a problem for much the same reason. Each driver will claim the other wrongly entered his lane. Often times in these cases you get little to no assistance in your proof from the property damage. Which I have found often is the evidence that does not lie and has its own story to tell. I have such a case pending in Baltimore City. I decided to take a chance on this one for several reasons. One I like the plaintiff and I believe her. The damages are not compelling. I believe the case will stay in district court, which in Baltimore is not always a blessing. However, I am impressed with the location of the vehicles post accident. My client’s vehicle once hit was forced into oncoming traffic and up over the medium. Also the plaintiff's property damage was passenger side more to front. In such an instance plaintiff’s visibility of the other vehicle was greater then defendant’s visibility. People do not purposefully run into other peoples cars. It is more probable the defendant did not see the plaintiff judging from the position of the vehicles immediately prior to impact.

Maryland Personal Injury The Damage Cap

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Thu, 26 Jun 2008 10:39:00 +0000

Maryland has long ago placed a cap on the amount of non economic damages a person can receive in compensation for injury. Since its inception the cap has been the center of great debate initiated primarily by the plaintiff aggrieved by the harsh reduction of his/her judgment. Some argue the cap thwarts justice. Once the jury has spoken and entered a judgment shouldn't that judgment be honored? Others argue the cap is needed to contain cost to the general public. Ultimately the cap removes discretion from the fact finder and leaves litigants with an inflexible mathematical boundary. A viable alternative that better serves justice is a post judgment review of the excess award. Not every case should be sustained. I am sure not every case should be reduced. The Maryland Damage cap states in pertinent part:

in any action for damages for personal injury or wrongful death in which the cause of action arises on or after October 1, 1994, an award for noneconomic damages may not exceed $500,000.

(ii) The limitation on noneconomic damages provided under subparagraph (i) of this paragraph shall increase by $15,000 on October 1 of each year beginning on October 1, 1995. The increased amount shall apply to causes of action arising between October 1 of that year and September 30 of the following year, inclusive.

(3)(i) The limitation established under paragraph (2) of this subsection shall apply in a personal injury action to each direct victim of tortious conduct and all persons who claim injury by or through that victim.

(ii) In a wrongful death action in which there are two or more claimants or beneficiaries, an award for noneconomic damages may not exceed 150% of the limitation established under paragraph (2) of this subsection, regardless of the number of claimants or beneficiaries who share in the award.

Vicarious Personal Injury Liability in a Maryland

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Wed, 25 Jun 2008 10:54:00 +0000

Maryland law says the general rule is "every automobile driver must exercise toward every other driver that duty of care which a person of ordinary prudence would exercise under similar circumstances". Baltimore Transit Co., v Prinz 215 Md 398 (1958). Makes sense if we intend to keep a sound order to society. Then everyone should act reasonably. If you act in a careless manner and you hurt someone then you are liable for the damages you have caused. So are there situations where someone else’s careless behavior makes you liable? Well in Maryland personal injury law the answer is yes. Negligent entrustment and respondeat superior cases provide examples. Negligent entrustment occurs when the owner knows or should know that the person he is entrusting his vehicle to is likely to use the vehicle in a manner involving risk of harm to others. For example lending your car to a person you know is intoxicated. Then the owner may be held liable Macky v Dorsey 104 Md. App. 250 (1995). Other wise the mere ownership of a vehicle does not impute liability Toscano v Spriggs 343 Md 320 (1996). And as far as respondeat superior is concerned this is when an employer is held liable for the careless acts of their employees provided the act was committed by their employee while acting in the scope of their employment. Oaks v Connors 339 Md 24 (1995).

Elements of a Complaint in Maryland Personal Injury Cases

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Tue, 24 Jun 2008 11:01:00 +0000

A properly pleaded claim of negligence includes four elements: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty. Todd v. Mass Transit Admin., 373 Md. 149, 816 A.2d 930 (2003).
As such every complaint in an personal injury case in Maryland for negligence must state, all facts which are essential to the cause of action with a reasonable degree of certainty. It is necessary to inform the defendant of the acts or omissions on which his or her liability is based. In order to state a cause of action in negligence, the complaint should state:

1. a right on the part of the plaintiff,
2. a duty on the part of the defendant with respect to that right,
3. a breach of that duty by the defendant,
4. the plaintiff has suffered an injury as a result of the breach of duty
5. the amount of damages the plaintiff is seeking to recover.

Energy Crisis and Personal Injury In Maryland

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Mon, 23 Jun 2008 11:10:00 +0000

The effects of the energy crisis are realized everywhere even in subtle manners. For example, in my practice I am finding more and more occasions where I am hired by multiple clients all from the same host vehicle which was involved in a car accident. The reason is car pooling as a result of efforts to save on gas cost. What issues does this raise for the Maryland personal injury lawyer? Aside from the benefits which are obvious. This generally means we are taking policy limits. But this situation gives rise to several very serious complications. For example, conflict of interest issues involving liability and settlements. Additionally, you can encounter insurance coverage issues and UM/UIM issues.

In the event of a liability conflicts you simply can not represent the driver. And if you have met the driver as an initial interview you may find yourself in a situation where you can not represent anyone in the case, absent a written consent.

As far as settlements, assuming liability is a non issue, in which case representing the driver is also fine, again as an attorney you will encounter a problem. For example let say you have five clients in your host vehicle. There is a 20/40 policy. How do you decide who gets what from the settlement with out adversely affecting the interest of any one single client over the interest of another. This is a serious situation as far as conflict of interest is concerned. The solution I have found is Consent to Representation executed by each client. The Consent tells each client of the exact conflict at issue as well as their right to seek independent counsel. As long as you as an attorney are confident your representation of any one client is not adverse to the interest of another client and this confidence is reasonable and each client is informed of the issues and consents, then you are able to represent each. Please feel free to call me to discuss if you as a Maryland personal injury lawyer are encountering the same problem.

Scheduling Orders

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Wed, 02 Jan 2008 12:58:00 +0000

Maryland Courts have developed scheduling order to promote the efficient administration of the cases through the court process. Specifically Md Rule RULE 2-504. SCHEDULING ORDER
(a) Order Required.
(1) Unless otherwise ordered by the County Administrative Judge for one or more specified categories of actions, the court shall enter a scheduling order in every civil action, whether or not the court orders a scheduling conference pursuant to Rule 2-504.1.
(2) The County Administrative Judge shall prescribe the general format of scheduling orders to be entered pursuant to this Rule. A copy of the prescribed format shall be furnished to the Chief Judge of the Court of Appeals.
(3) Unless the court orders a scheduling conference pursuant to Rule 2-504.1, the scheduling order shall be entered as soon as practicable, but no later than 30 days after an answer is filed by any defendant. If the court orders a scheduling conference, the scheduling order shall be entered promptly after conclusion of the conference.
(b) Contents of Scheduling Order.
(1) Required. A scheduling order shall contain:
(A) an assignment of the action to an appropriate scheduling category of a differentiated case management system established pursuant to Rule 16-202;
(B) one or more dates by which each party shall identify each person whom the party expects to call as an expert witness at trial, including all information specified in Rule 2-402 (f) (1);
(C) one or more dates by which each party shall file the notice required by Rule 2-504.3 (b) concerning computer-generated evidence;
(D) a date by which all discovery must be completed;
(E) a date by which all dispositive motions must be filed, which shall be no earlier than 15 days after the date by which all discovery must be completed;
(F) a date by which any additional parties must be joined;
(G) a date by which amendments to the pleadings are allowed as of right; and
(H) any other matter resolved at a scheduling conference held pursuant to Rule 2-504.1.
(2) Permitted. A scheduling order may also contain:
(A) any limitations on discovery otherwise permitted under these rules, including reasonable limitations on the number of interrogatories, depositions, and other forms of discovery;
(B) the resolution of any disputes existing between the parties relating to discovery;
(C) a specific referral to or direction to pursue an available and appropriate form of alternative dispute resolution, including a requirement that individuals with authority to settle be present or readily available for consultation during the alternative dispute resolution proceeding, provided that the referral or direction conforms to the limitations of Rule 2-504.1 (e);
(D) an order designating or providing for the designation of a neutral expert to be called as the court's witness;
(E) in an action involving child custody or child access, an order appointing child's counsel in accordance with Rule 9-205.1;
(F) a further scheduling conference or pretrial conference date; and
(G) any other matter pertinent to the management of the action.
(c) Modification of Order. The scheduling order controls the subsequent course of the action but shall be modified by the court to prevent injustice.

A case on point Maddox v. Stone 174 Md.App. 489, 921 A.2d 912 Md.App.,2007.

Closing Arguments on Damages

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Sun, 30 Dec 2007 15:37:00 +0000

There is a continuing debate among even seasoned trial attorneys on how to best approach the jury in closing argument on the issue of money. I admit this can be a delicate subject. Maybe even more so in the less then profound cases. In the profound case the injury is obvious and devastating, therefore credible. When asking for money plaintiff's counsel run the risk of sounding greedy. No one likes a greedy lawyer. Worst the impact of that perception can fall upon your client. There are a number of approaches on how to cure this dilemma. And do note that the issue really appears only on the award for pain and suffering and other general damages. Special damages present far less of a problem. These are the product of the actual losses incurred for treatment, lost wages, prescriptions, toeing, repairs, mileage etc. All you need do here is add the numbers. But for the intangible general damages, the rules change. And there are some restrictions on what is or is not permitted in argument. For example, the Golden Rule prohibits arguments which ask the jury to place them selves in the shoes of the plaintiff. Questions like what would you like to receive as compensation are prohibited. One good case on this point is Simmons v Lowery 563 So. 2d 183. In this case during opening statement appellant's counsel asked the jury "to think about what you would pay someone for one day of what you will hear she has to go through and for the rest of her life." The attorney said this as he was explaining that the jury must assess damages. During closing argument the plaintiff's attorney reminded the jury that he had asked them to consider what they would pay for one day of the plaintiff's situation. At that point, defense counsel objected and requested a mistrial. After rendition of a favorable plaintiff's verdict, defense counsel moved for a new trial contending that the foregoing statements were impermissible golden rule arguments. While the trial court concluded that the statements were improper argument, we hold that they are not.
"A golden rule argument suggests to jurors that they put themselves in the shoes of one of the parties, and is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence." Cummins Alabama, Inc. v. Allbritten, 548 So.2d 258, 263 (Fla. 1st DCA 1989). "To be impermissible, the argument must strike at that sensitive area of financial responsibility and hypothetically request the jury to consider how much they would wish to receive in a similar situation." Shaffer v. Ward, 510 So.2d 602, 603 (Fla. 5th DCA 1987).
Rather than asking the jury what they might wish to receive as compensation themselves, appellant's argument asked the jury to do just what they must do--to determine how much to award or pay the plaintiff for her injuries. Appellant's argument merely asked them to consider this on a per diem basis, which is permissible and has long-standing use in personal injury trials. Rattner v. Arrington, 111 So.2d 82 (Fla. 3d DCA 1959); Perdue v. Watson, 144 So.2d 840 (Fla. 2d DCA 1962). The trial court thus erred in granting a new trial on this basis. See also Leach v. Metzger 241 Md. 533, 217 A.2d 302 MD (1966) which stated Although no Maryland cases have specifically so held, arguments, such as the one apparently made by appellees' counsel, which urge jurors to deal with counsel's clients as they would wish to be dealt with if they were in such client's position, are improper. The vice inherent in such argument is that it invites the jurors to disregard their oaths and to become non-objective viewers of the evidence which has been presented to them, or to go outside that evidence to bring to bear on the issue of damages purely subjective considerations, and resultantly courts in many other jurisdictions have deemed such ‘golden rule’ arguments to be improper.

One acceptable approach in asking for money is the per diem argument. This is essentially time and money. The argument goes like this; the plaintiff suffers this injury every hour of every day for the rest of his/her life. What is it worth per hour multiplied over the life expectancy. The product equals damages for those general damages. It makes sense, but some times when you do the math the product is so astronomical that it is shocking. So it may not be practical in every situation that is less then a profound injury.

Ultimately the law in Maryland states that for damages the jury must determine they are proven by a preponderance of the evidence and are reasonable and are not speculative. The jury is permitted to consider the health and condition of the plaintiff before and after the accident, the permanent nature of the injury, the disability resulting from the injury, the extent to which the injury impacts employments, and other activities, as well as physical pain and mental suffering and then allow a monetary award that is fair and just to compensate Adams v Benson 208 Md 261. As such evidence of depression following injury is evidence of mental suffering, pain medication is evidence of mental suffering as mental suffering naturally follows the existence of physical pain. See Timmons 133 A 322. For more information visit http://www.marylandinjuryattorney.net

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

Proof Of Loss Earning Capacity In a Self Employed Situation

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Tue, 07 Aug 2007 11:55:00 +0000

Loss earning capacity refers to those situations where the plaintiff has suffered a permanent injury which prevents him from earning the same income he had prior to the injury. It is not an issue of loss future wages. It is an issue of loss earning capacity. And oddly, in a Maryland personal injury case, you can get the damages in a self employed situation even when there is no history of income earnings. See ANDERSON, et al.v. LITZENBERG 694 A.2d 150 (1997). I suggest the necessary proof is as follows: (1) proof of permanent injury as established by a doctor's testimony who is familiar with the physical demands of the Plaintiff's prior employment the current physical limitations; (2) testimony from a vocational rehab expert as to the value of the services the plaintiff was performing prior to the injury as compared to the value of the services the plaintiff is capable of performing with his new physical limitations; (3) an economist to testify to the present value of the loss future earning capacity and the Plaintiff's work life expectancy.

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

Discovery Admission of Fact

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Wed, 25 Jul 2007 21:27:00 +0000

I have often had limited success using this form of discovery in personal injury cases. Defendants normally simply deny all requested admissions. There is no penalty in the rules for a denial that ends up being true, other then the potential that I can recover cost incurred in proving a fact denied. However, I came across an idea from a very good blog that sent me to another blog that proposed an interrogatory question to be filed post the admission denials. The author of the blog proposed an interrogatory as follows:
"To the extent that any of your responses to any of Plaintiff's requests for admissions is other than an unqualified admission, list all facts on which you based any part of your response that is not an unqualified admission, identify all documents memorializing each such fact, and identify all persons with knowledge of each such fact."

This is interesting enough to try. After all I like the idea of an admission of fact. But what value when the dog has no bite.

Copy Right 2007 Your Maryland Lawyer; Maryland Injury Attorney

Discovery Of Pre-Existing Conditions

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Tue, 10 Jul 2007 14:25:00 +0000

I normally propound an interrogatory question to the defendant requesting information they may have regarding my client's pre-exisitng conditions, if any, or if they contend a pre-exisiting condition was aggravated by the accident. Generally, the defendant objects, stating this is work product. I came across a Discovery opinion that states the defendant is required to answer. However, their response is limited to information provided by the plaintiff. I agree this is maybe of limited value to the plaintiff absent the defendant failing to identify the condition in their answers to interrogatories, post plaintiff's disclosure, and later being denied the opportunity to make the argument at trial. Daily Record Sperti v Muhr August 10, 1966.

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

Pre-Existing Conditions and Damages

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Sun, 01 Jul 2007 17:41:00 +0000

Yep here we go again. Plaintiff with a pre-existing condition gets into rear end accident. Plaintiff says you are responsible for my subsequent surgery. Defendant says we did'n't do nutin, ya'll had dat conditin prior too da axel dent. Wrong high insurance premium breath. Take me as I am and love me with all my susceptible body parts. You think I aggravate you well guess what you aggravate me and my pre-existing condin tin too. See MPJI 10.3 SUSCEPTIBILITY TO INJURY The effect that an injury might have upon a particular person depends upon the susceptibility to injury of the plaintiff. In other words, the fact that the injury would have been less serious if inflicted upon another person should not affect the amount of damages to which the plaintiff may be entitled. See MPJI 10:4 AGGRAVATION OF PREVIOUS CONDITION A person who had a particular condition before the accident may be awarded damages for the aggravation or worsening of that condition. And just to mention all foreseeable consequences. See Empire Reality 305 A 2d. 144 (1973). I ma comin ta geet ya boz and hidden hind dem pre-sistin arguments ain't stoppin me no wayza.

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

You Gotta Love Property Damage Photographs

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Wed, 30 May 2007 21:28:00 +0000

I start every liability theory with a complete evaluation of those property damage photographs. You know how they say a picture is worth a thousand words. Well they were right. The damages tell you everything. Direction, speed, point of impact, not to mention that they don't lie. I have a case now where the plaintiff says the defendant was backing up from a side street while turning into traffic. The defendant says the plaintiff rear ended me and I was not backing out I was simply making a turn. Even in this very close call case, I can tell you the PD photographs will win this case for my client. You watch and see if I'm right.

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

Finding Hay in a Needle Stack

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Wed, 16 May 2007 10:48:00 +0000

I spent several hours late Monday evening outlining medical records for a very serious personal injury case I am preparing to file suit on. I was most curious to track the causation issues from initial treatment at the hospital to final discharge. My client ultimately had surgery to the c6-c7 disc as a result of herniation caused by the accident. The initial presentment at the hospital immediately post accident had my client complaining of finger numbness. Not every day I find such a clean connection. I was pleased. Next, as a matter of habit, I outlined all post hospital release treatment records looking for symptom inconsistency between doctor records and physical therapy records. I can not tell you the number of times I have a doctor's report saying he is doing better and a PT report saying the patient is unimproved and both occur on the same day and sometimes only hours apart. Finally, I look for symptom exacerbation and on this point I often notice the medical records state things like much improved released to full work only to find two weeks later problems worse with activities. Also, for serious injuries such as this case, I always find worsened conditions between October and March. The cold weather is a killer. I review the records in this manner because I know already the records are in evidence and some defense attorney is going to stand in front of the jury and say see he's lying look at the records better one day worse the next. I need to explain that apparent inconsistency. Now I can argue see his symptoms are affected by activities and weather. Argument preplanned is not paranoid. Unless it wakes you 2:30 am every night for a week.

Copy Right 2007 Your Maryland Lawyer and Maryland Injury Attorney

Taking the Case

keithbartnik@yourmarylandlawyer.com (Keith Blair Bartnik, P.A.) — Sat, 12 May 2007 10:51:00 +0000

I met with a potential client a few days ago regarding a personal injury accident that had happened nearly 3 years prior. In fact when I met him he was 9 days from expiration of the statute of limitations. After meeting the gentlemen, I had to declined to accept the case. Normally, I would not meet this close to an expiration of the limitations. However, my office always accommodates when a former client referrs a friend or family member as a matter of policy. Prior to finishing the meeting I had the potential client execute a notice of limitations to be sure he acknowledged the time frames for filing suit and the consequences of not filing suit. I declined the case not so much due to the limitations period, which was a significant issue, but also due to the intensity of his demeanor in proclaiming his damages. It was a very odd contradiction that a person would wait 3 years post accident with no more then soft tissue injury and now be outraged at the damage he suffered. Not that he was not truthful. In any event, I came upon a list of the difficult cases many personal injury attorney look at twice before accepting. Red/Light Green/Light cases, lane change cases, slip and fall cases, delayed treatment cases, client ticketed cases, low property damage cases, uninsured vehicle cases, and pending personal injury cases from prior accidents.