Maryland Injury Lawyers Blog

Get ready for a huge verdict coming out of Baltimore County this week. A Baltimore County jury will be awarding punitive damages in an environmental law gas leak case that is in Baltimore County Circuit Court before Judge Robert N. Dugan. The Maryland environmental law case involves Exxon Mobil leaking gas that damages the properties of 154 households, 7 commercial property owners and two business owners. More than 25,000 gallons of fuel leaked from the Exxon gas station over the course of 5 weeks before it was discovered in 2006. The plaintiffs asked for damages for diminution of their real properties value, emotional trauma, medical monitoring, and fraud. The case was tried to a jury of all women. Yesterday the jury reported that they have decided to award punitive damages. Therefore, the attorneys gave argument about that specific issue yesterday afternoon and the jury will continue to deliberate today. The final jury verdict of both compensatory damages and punitive damages will be announced at the same time. Most likely later today or tomorrow. The fact that the jury will be awarding punitive damages basically tells us that they found Exxon Mobil guilty of "fraud" as that is an intentional tort which would allow for punitive damages under Maryland law.

Punitive damages are very rare in Maryland because in 1992 the Maryland Court of Appeals held in Owens-Illinois v. Zenobia that punitive damages can only be awarded when there is actual malice and in intentional tort cases. What this means is that even for egregious conduct in Maryland punitive damages are not available. For example if you are injured by a drunk driver in Maryland, you are not entitled to punitive damages (the jury will not even be allowed to consider it). But if the driver of a car intentionally strikes a person, then punitive damages could be awarded (but there probably would not be any insurance coverage becaue of exclusions for intentional acts). It should be noted that the U.S. Supreme Court has put further restrictions on awards of punitive damages by basically limiting such damages to a multiplies of about 8 times the amount of compensatory damages.

Punitive damages are especially appropriate in Maryland Environmental law cases because they deter future misconduct by corporations. It is important that Maryland lawyers keep in mind that by pleading and proving fraud you preserve your client's right to punitive damages. However, at the same time, you may lose applicable insurance coverage if the insurance policies have an exclusion for intentional misconduct. Therefore, Maryland trial lawyers need to determine whether the defendants have the ability to pay for punitive damages at the pleading stage. One thing is for sure---Exxon Mobil and other large corporations that cause environmental damage in Maryland can afford to pay punitive damage awards.

WARNING: IF YOU CHOOSE TO TAKE A GENERIC DRUG OVER A BRAND NAME OF THE SAME DRUG YOU NOW MUST RELINQUISH YOUR RIGHT TO SUE THE DRUG MANUFACTURER FOR FAILING TO WARN OF KNOWN DANGERS.

Once again the United States Supreme Court has sided with the powerful pharmaceutical industry--this time manufacturers of generic drugs---- at the expense of just about everyone else---consumers who choose to take less expensive generic drugs instead of the brand name drugs. About 75% of prescription drugs sold in the USA are generic brands. So basically the rich---who may be able to afford the Brand Name Drugs, retain their right to sue but just about everyone else has now been stripped away of our right to sue and hold drug manufacturers accountable.

Four Supreme Court Justices dissented from this opinion explaining that "Today's decision leads to so many absurd consequences that I cannot fathom that Congress would have intended to pre-empt state law in these casees" ...."As a result of today's decision whether a consumer harmed by inadequate warnings can obtain relief turns solely on teh happenstance of whether her pharmacist filled her prescription with a brand-name or generic drug."

The U.S. Supreme Court Decision, Pliva v. Mensing, essentially holds that Generic Drug Companies do not have to provide warnings to consumers/patients who take the Generic Drugs. In this case, the manufacturer of Metoclopramide (brand name is Reglan), a dangerous drug used to treat acid reflux and speed the movement of food through the digestive system, did not have to warn consumers that the Reglan causes Tardive Dyskinesia even though the generic drug makers knew that long term use of Reglan carried a high risk of Tardive Dyskinesia. The generic drug labels did not adequately warn of this risk. State Law would have required the generic drug companies to warn of this known risk. The Supreme Court Opinion written by Justice Clarence Thomas adopted a perverted analysis of the pre-emption doctrine and held that since the FDA had previously approved a label for the brand name drug Reglan, the generic manufacturers did not have a separate tort duty to warn of the newly discovered dangers of Reglan/Metoclopramide because the FDA had approved a warning label for Reglan in 1980. The Court found that the "impossibility pre-emption" doctrine applied even though it was conceded that it was not impossible for the generic manufacturers to comply with federal and state law.

The decision is significant because about 75% of all prescription drugs filled in the USA are generic brands. Generic Drug Sales in the USA is a $66 Billion Dollar Industry.

The take away---before you agree to accept a generic drug instead of a brand name make sure you know that you are likely giving up your right to sue the drug manufacturer as a result of their failure to warn of known dangers. In this case the generic drug manufacturer knew that 29% of those who took the drug would develop Tardive Dyskinesia. Yet this $29 Billion Dollar Industry was given a fee pass and the Supreme Court has chosen to put the cost of this risk on the individual generic drug consumer rather than on the drug companies.

Pliva v. Mensing. USSC.pdf

Carroll County Maryland is not a venue known for large jury verdicts. In fact, many plaintiff lawyers bend over backwards to avoid filing suit in Carroll County because of its reputation for lower jury verdicts than neighboring Baltimore City. But last week a Carroll County jury awarded $11,800,000 to a Westminser Maryland gentleman injured in a Carroll County car accident in which a drunk driver caused a rear end collision. The case was a rear end car accident negligence case. Although there was not a lot of property damage to the vehicles involved in the crash, the plaintiff lawyers proved that Michael Wayne Harris suffered from Reflex Sympathetic Dystrophy (known as and RSD Injury). In this case the Maryland jury verdict exceeds the insurance policy limits available. The Daily Record reported that there was $1.3 Million in insurnace coverage, and apparently teh defendant insurance companies--State Farm and Brethren Mutual--did not make a pre-trial settlement offer. The jury compensated Mr. Harris with $2.6 Million for future medical expenses, $800,000.00 for past and future lost income/earnings and/or lost earning capacity, and $256,000.00 for home modifications. The Carroll County Maryland jury also awarded $5.6 Million for non economic damages and the effect of the car crash injuries on his marital sexual relationship (sometimes referred to as loss of consortium). Maryland's cap on non economic damages may reduce the amount the jury awarded for non economic damages but will not effect the economic damages awarded (economic loss in Maryland inculdes medical expenses, lost earnings and other provable economic/out of pocket losses.

The driver of the vehicle that struck the plainitff in this Maryland car wreck case fled the scene of the crash and was workign for a lawn company at the time of the crash (thus involving a commercial insurance policy which typically has more coverage than a smaller individual car insurance liability policy). the driver failed two sobriety tests and was booked for driving under the influence of alcohol (DUI). The Carroll County jury that compensated Mr. Harris with the $11 Million Dollar verdict did not hear evidence of the alcohol or the fact that the driver who caused the crash was drunk. The case was tried by attorney Robert Weltchek and other lawyers from his firm.

There was a car crash on 16th Street in Silver Spring Maryland on Friday night. A Honda Accord was attempting to avoid a Ride-On Bus. The Honda driver swerved to avoid hitting the bus, and apparently the car flipped over and the driver was tragically killed. The accident is still being investigated by police and if you witnessed this crash on 16th Street in Silver Spring, Maryland you should call 301-840-2435 which is the number for the Maryland Car Accident Reconstruction Unit.

I did not see this crash and have no first hand knowledge of how it occurred. But I can tell you that the bus operators in Silver Spring, MD who operate the Ride-On Busses and the Metro Busses can be ruthless. I often see them slamming on their brakes unexpectedly, making unsafe lane changes, running red lights and exceeding the speed limit.

Our thoughts and prayers go out to the family of the person killed in this crash. Although a lawsuit is not generally on a grieving family's mind, in a case like this it is important to get good legal representation on board right away. First of all, police investigations of bus accidents often are flawed in favor of the bus operator who is, like the Maryland police investigating the crash, seen by the police as a public employee. Also, in a fatal crash, unfortunately the operator of the Honda who was killed cannot give his version of hte story. Evidence can fade. Skid marks can disappear. An INDEPENDENT investigation is crucial and it should be done soon after the crash.

Another reason to consider legal representation right away is because if there is a product liability claim relating to the Honda Accord or the roadway condition(s), then the vehicle needs to be preserved and cannot be junked or destroyed. A Maryland lawyer can help make sure that crucial evidence such as the vehicle itself and skid marks, do not disappear as they often do in the days and weeks immediatley after a fatal Maryland car accident.

Any Maryland family who loses a loved one in a car accident should also make a prompt personal injury protection claim (PIP Claim) with the car insurance policy covering the vehicle the person was operating and/or the operator's car insurance policy. PIP in Maryland generally covers funeral expenses and it is a no fault insurance that will be paid right away before a liability investigation is complete. The amount of coverage varies from $2,500.00 to $10,000.00. For more information about Maryland PIP claims and Maryland uninsured motorist claims visit our website or call us at 888-213-8140.

The family of the person killed in this accident with the Ride-On Bus should also know that proper notice of the claim must be filed within 6 months of the crash pursuant to the Local Government Tort Claims Act. A lawyer can make sure that this requirement is complied with. This is an additional statutory requriement in addition to the 3 year Maryland statute of limitations for general negligence claims.

A new law goes into effect on 10/1/11 in the State of Maryland that will alleviate one of the major headaches that lawyers handling Maryland Wrongful Death and Maryland Survivial Claims have had to deal with. The new law changes Estates & Trusts Section 7-604 of the Maryland Code so that lawyers will not have to obtain Court Approval from the Maryalnd Orphans Court (or, in some counties, the Register of Wills) for contingent fees in Maryland personal injury cases resulting in death, Maryland Car Accident cases resulting in Death and Maryland Medical Malpractice Cases Resulting in Death. The new law simply requires that the attorney fee agreement needs to be filed with the Register of Wills and tha thte attorney handling the Maryland Contingent Fee Matter file with each estate a statement that the scope of representation did not include administering the estate in Maryland.

The driver of last weeks deadly tour bus crash in Virginia has been charged with four counts of involuntary manslaughter. The maximum prison term is ten years in prison for each count. It is believed that this tour bus left Greensboro, North Carolina about an hour later than originially planned. The tour bus driver was frustrated because the passengers wanted to make two stops on the way to New York. The bus driver, Mr. Kin Yiu Cheung, did not want to make the additional stop. While there is no way to be sure, it seems that the bus driver was likely speeding in order to make up for the time lost by making the stops. Newspapers and blogs on the internet have reported that Mr. Cheung who operated the Sky Express Tour Bus that crashed, had a history of driving violations including 4 speeding tickets. In the days after the Sky Express Crash the New York Legislature passed a bill requiring all tour bus drivers to undergo a criminal background check. The next step is that this tour bus driver law will go before hte entire New York General Assembly.

Those injured and those who have family that were killed in the Sky Express Crash have good reason to be angry. The reasons for anger increased on Friday when it was reported that even after the DOT revoked the license of Sky Express to sell tickets and operate, they apparently were selling bus tour ticekts under different company names including 108 Tours, 108 Bus and even painting some of its busses. Bottom Line----It is not just Mr. Cheung--the bus driver who should be locked up. Sky Express and its owners/principals deserve to have criminal charges brought against them as it is the corporation and its officers who allowed a corporate culture to exist that did not put a priority on safety and caused the 4 deaths and numerous injuries last week. The owners of Sky Express---Dr. Xiangping Cehn aka Jimmy Chen, President and CEO of IVy Media Corporation/GotoBus.com have been subpoenaed to appear before the Federal Motor Carrier Safety Administration regarding this issue and a Cease and Desist Order was issued June 3, 2011 to stop this nonsense. This is the subpoena and cease and desist order for Sky Express. SkyExpressSubpoena[1].pdf

It is disturbing that there have been so many deadly crashes and fatalities on tour busses in the last 6 months. The tour bus industry seems to have low safety standards and they are not regulated in the same manner as even tractor trailers. For example, I do not believe that the FMCSA requires Tour Bus Drivers to keep driver logs. By contrast, drivers of 18 wheelers and tractor trailers are indeed required to keep driver logs showing how many hours they have driven and the law limits how many hours per week big rig operators can drive. The Tour Bus Industry needs to adopt similar safety policies or else more needless deaths will occur.

There are reports in the media that a passenger overheard Kin Yiu Cheung talking on his portable phone about how tired he felt and upset that he did not have any down time between trips..

Our thoughts and prayers go out to those injured and killed in this week's tour bus crash including the families of Karen Blyden-Decastro, Josefa Torres, Giok Giang, and Denny Estefany Martinez who were killed in this crash that never should have happened.

The Sky Express, Inc. bus company that operated the tour bus that rolled over and killed 4 people in Virgnia this week was put out of service by the Federal Motor Carrier Safety Administration as a result of multiple safety violations on May 31, 2011 (after the fatal crash). Sky Express is not permitted to operate across state lines and will no longer be able to provide transportation from North Carolina to New York. TALK ABOUT TOO LITTLE TOO LATE! This is maddening. The public should be concerned that the Sky Express Bus Company was permitted to continue operating until 5/31/11 despite the fact it had numerous safety violations and a status from the FMCSA indicating that consumers should be concerned about the company's safety. Why wasn't this tour bus company put out of service before the crash that killed 4 and severely injured dozens of others? How many other unsafe tour busses are continuing to operate?

Families of those injured or killed in the crash should know that Sky Express Inc. had violations for unsafe driving, fatigued driving, inadequate driver fitness and vehicle maintenance in the 24 months prior to the 5/31 tour bus crash in Virginia. The 5/31 crash was likely the result of fatigued driving. Sky Express performed worse in the area of fatigued driving safety than 77% of other tour bus companies in this group. Sky Express performed worse than 97% of other carriers in the area of Driver Fitness. This statistic was published by the FMCSA long before this month's crash. So why the heck wasn't this bus company taken out of service until after the crash? The statistics are right here.fmcsa sky express.pdf

In a recent press release the FMCSA seems to brag and take credit for putting this company out of service now--after the crash. press.pdfIt seems to me that the FMCSA should have put this company out of service before the crash. The FMCSA press release indicates that they have a strike force that issued citations to 127 drivers and 315 vehciles from May1 through May 15, 2011. My question and concern is why ---if a company has numerous violations---shouldn't they be put out of service sooner??? The whole goal is to stop these companies that cut corners with regard to safety from operating. Somehow the system failed with regard to Sky Express and as a result there are dozens of families griving and struggling.

Attorneys at our law firm represent victims of the Sky Express Crash and we are actively looking into these issues and also Goldberg, Finnegan Mester is investigating the crash. We are interested in speaking with passengers on the bus about what they recall about the crash and what was happening on the bus from the time it left North Carolina until the time of the crash. Kevin Goldberg can be reached at 888-213-8140 x102.

Families of those involved in the Sky Express crash should putting their own uninsured motorist carriers on notice of their injuries from this crash and consider making a PIP/Medpay Claim on their own insurance policies. Our initial investigation shows that there was only $5,000,000.00 in liabilily insurance on the Sky Express Bus and we are concerned that this may not be enough to compensate everyone that was injured and killed in this catastrophe.