January 2012 Archives

January 31, 2012

Maryland Court of Appeals upholds multi-million dollar medical malpractice judgment

The Maryland Court of Appeals last Friday upheld a Baltimore County trial court's denial of a physician's motion for a new trial, after a jury awarded $13 million to a family whose child was born with severe cerebral palsy. The jury found that the physician breached his duty to obtain the mother's informed consent to treatment when he treated her for a partial placental abruption, by failing to inform her of the risks and available alternative treatments related to changes in her pregnancy.

Our Annapolis Maryland medical malpractice attorneys have more than 30 years experiments representing plaintiffs in cases involving catastrophic birth injuries.

The case Spangler v. McQuitty et al, marked the second time the Court of Appeals examined the same set of facts. In 2009, the Court of Appeals held in McQuitty I that a patient may bring an informed consent claim in the absence of a battery or affirmative violation of the patient's physicial integrity because a practitioner's duty to inform a patient of material information that the practitioner knows or ought to know would be significant to a reasonable person in the patient's position in deciding whether or not to submit to a particular medical treatment or procedure.

After overturning the trial court's initial grant of judgment notwithstanding the verdict, the Court of Appeals remanded the case to the Baltimore County Circuit Court to address Dr. Spangler's motion for remittur, which is a motion to reduce damages.

On remand, the trial court rejected Dr. Spangler's request for remittur and post-trial relief. Dr. Spangler appealed, and the Court of Appeals granted a writ of certiorari to hear the case.

Prior to the trial court's decision on Dr. Spangler's motion for remittur, the child unfortunately died.

In last week's decision, the Court of Appeals for the first time addressed the effect of a party's death on a jury verdict for future medical expenses. The jury awarded the child's parents $8,442,515 in future medical expenses, which Dr. Spangler argued the parents stopped incurring after their child died.

The Court ultimately held that while some states like Wisconsin have statutes to address such situations, Maryland does not. Although Maryland does have a statute permitting future economic damages to be annuitized, the trial court exercised its discretion not to grant an annuity award, which was not challenged on appeal.

In the absence of such statute addressing cessation of future medical damages, the Court joined several others states in deciding that "finality is the valued norm." In other words, the Court granted deference to the jury's verdict, which was likely based on a projections based on Plaintiff's life expectancy.

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January 30, 2012

Maryland Court of Appeals reinstates jury verdict for latex allergy discrimination

In Meade v. Shangri-la, a closely-divided Maryland Court of Appeals reinstated a jury verdict that awarded damages against a Howard County Montessori School, in favor of a parent with a latex allergy who requested that the school cease using powdered-latex gloves when changing student diapers. The jury found that the School discriminated against the parent, when the school administrator requested that the parent withdraw her child from the school after the parent disputed the school's rejection of her request.

Our Maryland injury attorneys have years of experience representing plaintiffs whose civil rights and rights defined by statute have been violated by others.

At trial, the Plaintiff argued that as a result of a severe allergy to latex, she requested that the school stop using latex gloves. After presenting the issue to the school administrator, the administrator initially indicated he would review the issue, but ultimately decided not to switch away from latex gloves since the school did not wish to switch suppliers. The administrator further explained that in an effort to accommodate the Plaintiff, he ordered staff members not to use powdered latex gloves on Plaintiff's son and to allow Plaintiff to pick up her son at the school's front desk so that Plaintiff did not have to venture further into the school to pick up her son.

Plaintiff followed up seeking a glove change once more so that Plaintiff would be allowed full access to the building and "be a part of [her] son's preschool experience." The administrator, who testified he feared litigation, responded with a request that Plaintiff withdraw her son from the school citing a clause in the school's contract that essentially allowed the school to ask any pupil to withdraw for any reason.

At trial, the jury found in favor of Plaintiff finding that Plaintiff's latex allergy was a physical impairment which substantially limited one or more of her major life activities and that the school denied her accommodations because of discrimination. She was awarded $1,683 in economic damages, $5,000 in non-economic damages, and $22,800 in attorney's fees.

The Plaintiff's law suit was based on a State statute and the Howard County Code, as opposed to the Americans with Disabilities Act ("ADA"). While the ADA, state, and county statutes may seem similar on their face in their efforts to avoid discrimination and promote reasonable accommodations to those with disabilities, the Howard County Code purports to address discrimination because of a "handicap," while the Americans with Disabilities Act addresses "disabilities."

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January 10, 2012

Family settles lawsuit for misapplied pesticide that killed two children


A Utah family who lost two children from a pesticide that was misapplied by an exterminator outside their home settled a lawsuit against the company that employed the exterminator for an undisclosed amount last month.

Our Annapolis Maryland Injury Attorneys have more than 30 years representing Plaintiffs who have been injured by the negligence of others, including home contractors.

The family's lawsuit alleged that an exterminator for Bugman Pest and Lawn, Inc., placed Fumitoxin pellets within a burrow system that was less than 15 feet from the family's home. Fumitoxin is a rat poison. As result of this pesticide application, which was contrary to the manufacturer's specifications, five of six members of the family became sick, and the family tragically lost their 4-year-old and 15-month-old daughters.

The Utah Medical Examiner's office found elevated phosphine levels in the bodies of the two children. State authorities attributed the elevated phosphine levels to inhalation of fumes from the rat poison.

The family's lawsuit sought damages to compensate the family for negligence, infliction of emotional distress, nuisance and "abnormally dangerous activities" that were allegedly committed by the company and its employee.

The employee who administered the pesticide pleaded guilty in United States District Court in October, admitting that he applied Fumitoxin pellets within 15 feet of the family home in violation of Federal Environmental Protection Laws. He acknowledged that the application was inconsistent with the product's labeling and exceeded the required dosage. Prosecutors recommended a jail sentence of six months, followed by six months of home confinement.

The company owner, Raymond Wilson Sr., pleaded guilty and will be banned from purchasing pesticides for three years, which will likely put the company out of business.

As a result of the deaths of the two children, the Environmental Protection Agency prohibited residential use of Fumitoxin. The Utah Department of Agriculture and Food also tightened accountability requirements, mandating that consumers be notified in advance if any product with a "Danger" label is used at their home.

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January 4, 2012

Maryland attorneys attempt to seize housing authority property to fulfill lead paint judgment

truck.jpgArmed with an unsatisfied $2.59 million judgment against the Housing Authority of Baltimore City for lead paint liability, which has since accumulated more than $300,000 in interest, attorneys for two Baltimore Plaintiffs have sought a writ of execution to seize and auction 21 vehicles owned by the Housing Authority to fulfill a portion of the judgment.

Our Annapolis Maryland Injury Attorneys have years of experience successfully representing Plaintiffs in product liability actions, many of which involve a manufacturer or distributor's failure to warn of a known danger.

Although the Housing Authority has appealed the judgment to the Court of Special Appeals, the Baltimore Housing Authority elected not to post an appeal bond. Ordinarily a party who appeals a Circuit Court judgment may post an appeal bond to effectively set aside funds if the party loses the appeal. Since the Housing Authority did not post a bond, the Housing Authority is presently required to pay the judgment.

Earlier last year, the Baltimore City Housing commissioner stated that the agency was unable to pay the judgment because it would have depleted the Authority's resources to provide services to residents.

In addition to the Housing Authority's inability to pay, the parties have also been unable to agree which property belongs to the federal government versus property that belongs solely to the Housing Authority. Much of the property of the Housing Authority of Baltimore City belongs to the federal government and would ordinarily be out of reach for Plaintiffs. The 21 vehicles that were "tagged" for auction by the Baltimore City Sheriff are exclusively owned by the Housing Authority. On this basis Plaintiff's counsel seeks to see the vehicles auctioned off, with the proceeds used to fulfill a portion of the amount owed.

The vehicles amount to 10 percent of the Authority's vehicle fleet, and they are used for resident services. These vehicles were eligible for seizure because they were not purchased with federal money.

In addition to the amount owed by these two plaintiffs, the authority owes an additional $11 million other plaintiffs to satisfy other judgments involving lead paint and mold.
It is uncertain whether these vehicles will actually be auctioned off or if counsel for the Plaintiffs and the Housing Authority will be able to resolve their differences. Nevertheless, this is an example of a creative way to seek payment of an unsatisfied judgment.

Update: The Court of Special Appeals overturned the trial court's verdict on January 19. So for now, the Housing Authority will keep its trucks.