Articles Posted in Litigation

Tennessee became the latest state to enact a cap on non-economic damages when its Governor signed into law a so-called “tort reform” bill that limits damages such as pain and suffering.

Our Maryland attorneys have significant experience representing injured plaintiffs in personal injury cases including auto accidents and medical malpractice throughout the state of Maryland and the District of Columbia.

Tennessee’s law places a $750,000 cap on non-economic damages and limits punitive damages at twice the amount of compensatory damages or $500,000, whichever is greater. The bill lifts the cap if the defendant is found to have intended to cause bodily injury.

Maryland, by contrast, currently caps non-economic damages at $740,000, with no cap on punitive damages. In Maryland, however, proving punitive damages requires proof of “actual malice.” For this reason, awards of punitive damages in Maryland are rare.

Compensatory damages, including non-economic damages, are designed to make a Plaintiff whole. Punitive damages are designed to punish the wrongdoer.

A recent HBO documentary titled, “Hot Coffee” explored the human effects of caps on damages. Four states, including Nebraska and Virginia, however, have a cap on all damages – including economic damages.

In the HBO documentary, a Nebraska boy was injured at birth. As a result of the negligence of an obstetrician, he is severely brain damaged and will require a lifetime of care. A lifetime of medical care alone will cost in excess of $5 million. The jury awarded $5.5 million. But because Nebraska maintained a $1.75 million cap on all damages, his family received only $1.75 million (much of which went to expenses and attorney fees). That means that taxpayers get stuck with the bill, rather than the wrongdoer.

Although some state courts have ruled that caps on noneconomic damages are unconstitutional, the Maryland Court of Appeals ruled as recently as 2010 that Maryland’s cap is constitutional.

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bar.jpg A Maryland Circuit Court Judge ruled last Friday that a civil lawsuit against a Montgomery County Bar for knowingly serving a drunken patron who later killed a 10-year-old girl in a car accident could continue. The ruling contradicts long-settled Maryland case law, but will certainly provoke discussion about Maryland’s dram shop liability laws.

Our Maryland injury attorneys have significant experience representing Plaintiffs who have suffered catastrophic injuries as a result of another’s negligence in car accidents.

The Judge’s ruling affects the lawsuit filed by William J. Warr, Jr., who filed a $3.25 million lawsuit in Montgomery County, Maryland against the owners of Dogfish Head Alehouse. The lawsuit alleges that the bar sold alcohol to a patron, knowing that the patron was already drunk, and allowing him to drive off in his Land Rover on August 21, 2008. The patron eventually drove 100 miles per hour before he crashed into Warr’s Jeep Cherokee and killed his granddaughter and severely injured Warr, his wife and another granddaughter.

The patron, Michael Eaton, was sentenced to 8 years in jail and is not a party to the lawsuit.

The Court of Appeals last addressed this issue in the case of Felder v. Butler. In Felder, the Plaintiff sued a bar owner who continuously served a patron who was alleged to have been visibly under the influence of alcohol. She ended up striking a vehicle driven by the Plaintiff.

The Felder Court upheld the common law rule that an innocent third party does not have a cause of action against a vendor for injuries suffered as a result of the intoxication of the vendor’s patron. The Court recognized that other state legislatures have established laws permitting lawsuits against selling alcohol to an intoxicated person. The Court reasoned that permitting such a lawsuit, without applicable legislation, would usurp the role of the legislature.

The Maryland General Assembly has periodically attempted to draft such legislation, but such bills (e.g. House Bill 1120) have not succeeded. The restaurant lobby has vocally opposed such bills and as recent as this year these efforts have failed.

The Judge’s ruling is unusual because procedurally a circuit court judge is bound by precedent of the Maryland Court of Appeals. Under the principle of stare decisis, a trial judge would usually be mandated to grant a defendant’s motion to dismiss and allow the Plaintiff to challenge the judge’s decision in the Court of Special Appeals.

The Montgomery County Judge, however, believes that “times have changed” since the Felder decision, and that “a bar owner who continuously serves drinks to intoxicated individuals and makes no attempt to ensure that the individual has alternative means home should expect that the intoxicated person can get into an accident.”

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North Carolina Lawmakers have proposed Senate Bill 33, which would bar emergency room patients from recovering damages based on the negligence of medical providers, regardless of the severity or permanency of the injury.

Our Maryland medical malpractice attorneys have significant experience representing

Plaintiffs who have been injured by a medical provider’s negligence.

seatbelt.jpg Carmakers are not shielded from liability when they manufacture cars that comply with federal regulations, but are alleged to be defective under state tort law, the Supreme Court unanimously held on Feb. 23.

In Williamson v. Mazda Motor of America, the Supreme Court held that a California family can continue its lawsuit alleging that Mazda’s installation of a lap belt in the middle-rear seat in the 1993 Mazda MPV, even though the seat belt technically complied with the federal standard at the time it was manufactured. Our Annapolis Maryland Injury Attorneys have substantial experience aiding injuring people who have been injured by defective products.

The Williamson family argued in California State Court that the defective seatbelt system, which involved just a lap belt in the second-row middle sea, caused the death of their daughter Thanh Williamson.

Mazda argued that its seatbelt system complied with the federal standard when the vehicle was manufactured in 1993. The Federal Standard at the time gave automakers the choice of a lap belt or a lap and shoulder harness seatbelt in the middle rear-suit. Mazda argued that the Federal standard essentially gave Mazda a choice.

The California Courts agreed with Mazda, holding the doctrine of preemption applied. Under a doctrine called pre-emption, when a state law conflicts with a federal law, the federal law usually wins out.

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wrestling.jpg An 18-year-old Kentucky Wrestling fan filed suit this week against World Wrestling Entertainment and two wrestlers alleging the company’s negligence combined with the negligence of two wrestlers caused the fan, then 7 years old, to sustain an injury to his right leg and knee, according to a news report.

Our Annapolis Maryland injury attorneys have experience representing plaintiffs who have suffered personal injury accidents by another party’s negligence.

The Complaint names World Wresting Entertainment and wrestlers The Rock and Triple H. Plaintiff Ronald Basham, III, alleges that due to the negligent “script” of the match (i.e. the wrestlers continuing their match outside of the ring in the vicinity of fans), that the WWE breached a duty in failing to warn spectators that they could be injured by the wrestlers.

pills.jpgPlaintiffs attorneys in several states are preparing to file lawsuits against Xanodyne Pharmaceuticals, a Kentucky-based drug company that marketed the painkillers Darvon and related brand Darvocet, both pain killers, according to an article that appeared in the Daily Record yesterday.

Our Annapolis Maryland attorneys have significant product liability trial experience representing Plaintiffs who have been injured by defective drugs and/or manufacturers’ failures to warn consumers.

Some attorneys plan to also sue drug company Eli Lilly, which pioneered the drugs prior to selling them in 2002 to AAI Pharmaceuticals, which has since gone bankrupt. Xanodyne purchased the drugs in 2005.

According to the Daily Record Article, the drugs’ active incredient propoxyphene causes a condition called QT prolongation, a form of an irregular heartbeat. Plaintiffs’ experts allege that QT prolongation is a “signature” injury caused only by propoxyphene and several other drugs. This condition can cause severe problems. Additionally, the drugs have been linked to overdoses.

Britain, Canada and Japan withdrew the drug from the market prior to the FDA taking action.

In July 2009, the FDA declined to remove Darvon from the market, but required manufacturers to provide more information to help physicians and patients to decide whether propoxyphene is the appropriate pain treatment.

Under pressure, Xanodyne Pharmaceuticals agreed to withdraw propoxyphene from the U.S. market on November 19, 2010, after the FDA received new clinical data showing the drug put patients at risk of potentially serious or even fatal heart rhythm abnormalities.
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New York Jets Defensive End Shaun Ellis has been named in a lawsuit filed by a Seattle Seahawks season ticket holder who says he suffered physical and emotional pain after he was struck by snowball thrown by Ellis after a Dec. 21, 2008 loss to the Seahawks.

Seattle Seahawks fan Robert Larsen claims Ellis targeted him with the snowball because Ellis had been waving a pro-Seahawks sign. A video of the incident (above) shows Ellis throwing a large chunk of snow at a fan holding a sign as Ellis exited the field. Ellis appears to catch the snowball and then start dancing with the snowball.

gavel.jpgGovernor Martin O’Malley issued a proclamation today enacting the results of November’s Election on Constitutional Amendments, effectively increasing the amount in controversy necessary for a party to seek a jury trial.

At the Brassel Alexander, our attorneys represent plaintiffs in personal injury cases, who have been injured by another party’s negligence in Annapolis, Baltimore and throughout the State of Maryland.

The Constitutional Amendment increases to $15,000 the amount that must be in controversy for a party to seek a jury trial in civil actions. Under the previous law, the limit was $10,000.

Keeping a case in district court is frequently beneficial to plaintiffs, since circuit court cases frequently require expenses such as expert witnesses and depositions. District Court discovery is less formal and is often handled in writing.

In a case where a Plaintiff has sustained an injury, but damages are not permanent or severe, it often makes sense for a Plaintiff to ask for damages consistent with the limits of the District Court’s jurisdiction.
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