February 2010 Archives

February 24, 2010

Lobbying In Annapolis on Behalf of Car Accident Victims

Lobbying In Annapolis on Behalf of Car Accident Victims

This morning I'm headed to Annapolis with several of my Maryland Association for Justice colleagues to urge our State Senators to vote in favor of Senate Bills 118 and Senate Bill 119 which will increase from $10,000.00 to $20,000.00 the maximum amount in controversy in which a party may not demand a jury trial. Information about the bill can be found at http://mlis.state.md.us/2010rs/billfile/SB0118.htm. This is important legislation for Maryland car accident victims because it will allow more of our clients to get their day in court in a timely manner. Under the current law, what typically happens if we file suit in District Court for $25,000.000 in a typical car accident personal injury case where there are say $5,000.00 in medical bills, is that the liability insurance company will demand a jury trial (yes--even in these smaller cases). This means that the case will get transferred from District Court to Circuit Court and instead of the case being heard within 2-4 months in District Court it can take up to 2 years to get a jury trial in Circuit Court. The increase in costs due to the delay, depositions and the need for live expert testimony, and the delay in receiving a trial date, can force a car accident victim to accept an unfair settlement offer from the insurance company. Also, quite frankly, in smaller cases it is not a wise use of judicial resources to have a full blown Circuit Court trial with discovery, depositions, etc. By contrast, in Maryland District Court the cases are heard by a judge (not a jury) and the discovery is limited to just 15 interrogatories (questions that are to be answered under oath).

In my opinion, insurance companies demand a jury trial in these smaller cases in order to force injured victims to accept lowball settlement offers and/or to allow the insurance company to hold onto money that rightfully belongs to injured victims for a longer period of time (and earn interest on the money). Especially in these tough economic times, these insurance companies know that many accident victims will simply accept an extremely low settlement offer rather than go through the expense and delay of a full blown jury trial in Circuit Court. Remember, these victims have suffered an injury and often lost time from work, and are already in a hole economically. These insurance company tactics are unfair, and frankly, are a complete waste of judicial resources and a waste of the time of Maryland Citizens who are forced to sit through 2-3 day jury trials for what could easily be a one or two hour District Court case in front of a judge.

As President of the Maryland Association for Justice we have pushed hard for this legislation that will allow more of our clients to get access to justice sooner. Because the legislation will require a change in the Maryland Declaration of Rights (The Maryland Constitution), after the legislation passes it will still have to be approved by the Maryland voters and will appear on the ballot in November 2010.

The jury trial right is in Articles 5 and 23 of the Maryland Declaration of Rights. Article 5 preserves the right of the inhabitants of Maryland to a jury trial as it existed in the English Common Law on July 4, 1776. Article 23 guarantees the right to a jury trial in civil proceedings where the amount in controversy exceeds $10,000. A party may not demand a jury trial if the amount in controversy does not exceed $10,000, exclusive of any attorney's fees if attorney's fees are recoverable by law or contract. The above referenced legislation, once approved by Maryland voters in November, will increase this $10,000.00 limit to $20,000.00.

By way of further background, The District Court of Maryland has exclusive jurisdiction for civil cases where the amount in dispute does not exceed $5,000, exclusive of prejudgment or postjudgment interest, costs, and attorney's fees if attorney's fees are recoverable by law or contract.

The District Court has concurrent jurisdiction with the circuit courts in a civil case in which the amount in controversy exceeds $5,000, but does not exceed $30,000, exclusive of prejudgment or postjudgment interest, costs, and attorney's fees if attorney's fees are recoverable by law or contract, and the plaintiff may choose to file the case in the District Court or a circuit court. However, if the plaintiff files the case in the District Court and the amount in controversy exceeds $10,000, a defendant may demand a jury trial and the case must be transferred to the circuit court. Because liability insurance companies such as State Farm, MAIF (aka Maryland Automobile Insurance Fund), Allstate and Erie basically control the defense of such cases, they will quite often demand a jury trial whenever an injured car accident person sues for more than $10,000.00


If the amount in controversy (the amount sued for) exceeds $30,000, exclusive of prejudgment or postjudgment interest, costs, and attorney's fees if attorney's fees are recoverable by law or contract, then the District Court does not have jurisdiction and the injured party would have to file that case originally in Circuit Court.

Under the English Common Law, parties to civil cases at law were entitled to a trial by jury, regardless of the amount in controversy. Article X, Section 4 of the Maryland Constitution as drafted at the 1850 Convention stated, "The trial by jury of all issues of fact in civil proceedings, in the several courts of law in this State, where the amount in controversy exceeds the sum of five dollars, shall be inviolably preserved." This was the first instance in which an amount in controversy was stipulated in reference to the entitlement to a trial by jury in civil cases at law. In 1970, the amount was changed to $500. In 1977, the provision was moved to its current location in Article 23 of the Declaration of Rights. The amount in controversy was changed to $5,000 in 1992, and then to $10,000 in 1998.

In Davis v. Slater, 383 Md. 599 (2004), the Court of Appeals found that these prior constitutional amendments changing the amount in controversy provision contained in Article 23 of the Declaration of Rights did not abrogate Article 5(a) of the Declaration of Rights and the applicable amount in controversy for determining the right to a jury trial in SB 118 / Page 3

a civil case was $5. In response to that decision, Chapter 422 of 2006, a constitutional amendment, was passed by the General Assembly and ratified by the voters to provide that the General Assembly may limit the right to trial by jury to a civil case in which the amount in controversy exceeds $10,000. Chapter 575 of 2006 was also enacted, contingent on ratification of Chapter 422, to provide that a party in a civil action may not demand a jury trial if the amount in controversy does not exceed $10,000, exclusive of any applicable attorney's fees.

February 23, 2010

Silver Spring Car Accident Causes Tragic Death

On Saturday there was a fatal car crash in Silver Spring Maryland in which a vehicle driven by Jose Ovidio Martinez Lopez hit a tree after leaving the roadway on Dilston Road (near Avenel Road) in Silver Spring, MD. Tragically, Jose Guillermo Tista Lemus was killed in this crash. Our thoughts and prayers go out to the family of Mr. Lemus. Mr. Lopez was driving a 1994 Volkswagon Jetta at the time of the crash. Anyone who witnessed the crash should call the Montgomery County Maryland Police Collision Reconstruction Unit at 301-840-2435. It is important that the family of Mr. Lemus retain an attorney as soon as possible. In a car crash such as this, it is crucial that a proper fact investigation be done right away. It is not sufficient to rely on the police investigation alone. If, for example, the crash was the result of defects in the Volkswagon Jetta, then it is important that the Volkswagon Jetta involved in the crash be inspected and preserved as evidence. Failure to preserve evidence can make it impossible to pursue a product liability claim later. It does not cost anything up front to hire a personal injury attorney in a serious car accident case such as this. In Maryland, when an individual is killed as a result of negligence or product defect, several legal claims arise. The estate of the person killed has a Survival Claim. In addition, The spouse, children and parents of Mr. Lemus can make a wrongful death claim. To learn more about Maryland Wrongful Death Claims click here. The lawyers at Goldberg, Finnegan & Mester give a free consultation and there is no attorney fee if there is no recovery. Call us at 888-213-8140 or visit our website at www.gfmlawllc.com

All too often those seriously injured or killed in car accidents wait too long to hire an attorney, and as a result evidence is lost or destroyed. Skid Marks on the roadway can fade away. Vehicles that contain parts that may have malfunctioned are destroyed. If the evidence necessary to prove a case is lost, then it may not be possible to prevail. That is just one reason why we urge accident victims and their families to hire an attorney as soon as an accident occurs.

February 9, 2010

The Toyota Recall - Willful Blindness Is Not a Defense

The Toyota Recall - Willful Blindness Is Not a DefenseAll too often we have seen corporations put their own bottom line ahead of consumer safety. The massive Toyota recall may be the most recent example of this, but it has been going on for decades. A few examples: (i) Firestone Tires: Firestone knew that there were serious problems with its tires by at least 1997, however it was not until 2000 that the tires were recalled. At least 271 people were killed and many more seriously injured before the tires were recalled. Firestone was undeterred by the NHTSA which had limited resources and only had the power to impose a $925,000.00 fine. (ii) Chevy Malibu: General Motors knew for decades that the placement of the fuel tank in the Chevy Malibu created an unreasonable risk of explosion in rear end collisions. Internal GM documents showed that deaths resulting from the defect would cost the company $2.40 per car. The company had developed an improved design that would have done a better job of protecting the gas tank in collisions, but the design would cost the company $8.59 per car. GM Executives decided not to make the change (civil discovery exposed the internal GM memo confirming this). (iii) Ford Pinto: Ford Motor Company knew that its Pinto was a dangerous vehicle since it was liable to explode in rear end collisions at speeds as low as 20 mph. An internal Ford Memo showed that the problem could be fixed for just $11 per car. The memo estimated that there would be 180 deaths and another 180 serious burn injuries. Ford concluded that it would cost more to fix the problem than to just let people die. Ford did not recall the 1.5 million Pintos on the road for another 5 years. (iv) Guidant Heart Defibrillators: Guidant knew that a certain model of their defibrillators was defective and subject to short circuiting in 2002, and the company even changed the design of their device. However they continued to sell the dangerous defibrillators that had already been manufactured, and made no effort to tell doctors, patients or the Food and Drug Administration about the problem until 2005. There are many more examples of corporations knowing that their products are unsafe, but failing to act--these are just a few.

We cannot rely on federal and state regulatory agencies such as NHTSA and the FDA to protect consumers. These agencies are subject to the influence of lobbyists, under-staffed, have limited authority to impose penalties, and frequently there is a revolving door between those working for the agencies and those working for industry. Also, many consumer complaints are made directly to the corporation (or car dealership) rather than to the appropriate federal agency responsible for investigating safety.

The Maryland Association for Justice, and our friends at the American Association for Justice, will continue to fight to keep our courts open to those who are injured by dangerous products. As you are reading this, our legislative team is in Annapolis fighting against tort reform, and if favor of legislation that will preserve our injured clients access to the civil justice system. If you are not already a member of the Maryland Association for Justice, I urge you to join today. If you email me at kgoldberg@gfmlawllc.com, I will gladly email you back a membership application.

" [T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further [i]nquiries, because he wishes to remain in ignorance, he is deemed to have knowledge.... The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law."

State v. McCallum, 321 Md. 451, 459, 583 A.2d 250, 254 (Md.,1991)

Kevin I. Goldberg
President, Maryland Association for Justice

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February 5, 2010

Cap on Medical Malpractice Cases In Illinois Invalidated

Cap on Medical Malpractice Cases In Illinois Invalidated The medical malpractice team at Goldberg, Finnegan & Mester is pleased to report that on February 4, 2010 the Illinois Supreme Court invalidated the Illinois cap on non economic damages finding that it violated the separation of powers doctrine in the Illinois Constitution. The opinion was issued by Chief Judge Fitzgerald. The case involved the alleged improper medical care provided during the delivery of Abigaile Lebron which resulted in birth injuries, severe brain injuries and cerebral palsy, cognitive mental impairment, inability to be fed normally and a gastronomy tube was needed and an inability to develop normal neurological functino (Our medical malpractice team has handled many similar cases). The Illinois Court held that the limits on non economic damages (damages for pain, suffering and disfigurement) in section 2-1706.5 of the Ill. Code violated the separation of powers clause of the Illinois State Constitution. To see a copy of the opinion, click here. Prior to this Court opinion, Illinois victims of medical malpractice were limited to $500,000.00 for pain and suffering damages regardless of the extent of their injuries. Caps of non-economic damages are especially unfair to widows, orphans, the disabled, the elderly and to women who are less likely to have large economic damages if they are not employed. The medical malpractice team at Goldberg Finnegan & Mester has represented numerous children and families in the State of Maryland who have suffered from birth injuries. Christian Mester and Jean Jones (a nurse and attorney) recently resolved a medical malpractice case for $4.15 million dollars on behalf of a child who was deprived of oxygen to the brain during delivery. This resulted in cerebral palsy. The parents now have the funds to allow their injured child to obtain the care she needs.

In the State of Maryland, we have a very unfair cap on non-economic damages as well. In Medical Malpractice cases, the cap for claims arising after January 1, 2009 is $665,000.00 for non death cases and $831,250.00 in wrongful death cases if there are multiple claimants. For personal injury cases that are not medical malpractice cases, the Maryland cap on non-economic damages is $665,000.00 for an individual's claim, $997,500 for wrongful death cases with multiple claimants. There are cases pending in the Maryland Court of Appeals that challenge Maryland's cap on non-economic damages. As the President of the Maryland Association for Justice, Kevin Goldberg has worked with the MAJ legislative team to push legislation before the Maryland General Assembly to revise Maryland's unfair Medical Malpractice Cap to bring it back in line with the higher cap for personal injury death cases.

To see the Illinois case that invalidated their cap on non-economic damages in Medical Malpractice Cases, click here.