The Time magazine article, "Bitter Pill - Why Medical Bills Are Killing Us", by Steven Brill, contains important insights about medical billing practices that are relevant to personal injury litigation, and medical debt litigation. This article not only should be read, but it should be kept on file for training purposes. On the defense side, it is commonplace for medicals to be the foundation for the evaluation of worst case exposure of a claim, and of a reasonable settlement range. Therefore if the medical bills are grossly inflated, the amount paid on the claim will be too. It's common knowledge that health care providers charge extra to cover the cost of care provided to the uninsured, but Brill's article is shocking because it shows that medical bills are inflated many times beyond that. On the plaintiff's side, the incentive to question the gross amount of medical bills arises with a vengeance after a settlement is reached, and negotiation of the medical liens begins. It is estimated that over 60% of personal bankruptcies are due to medical bills. Brill's article is a roadmap of the various ways in which the "sticker price" of medical care is egregiously inflated. The article also contains references to medical billing advocates, who are a breed of consultants who provide critical analysis of the charges in medical bills and who can help negotiate compromises on the bills. These consultants may have relationships with the Alliance of Claims Assistance Professionals or Medical Billing Advocates of America. The... Continue reading

I've previously remarked that litigation arising from Metrobus accidents is now starting to feature video from drivecam systems on the buses. WTOP has recently posted more detail about Metrobus drivecam systems, including sample videos that they have obtained from Metro. The video from the drivecam system is clearly something that has to be pursued in discovery in any collision involving a bus, and further, the existence of such evidence should be pursued in any litigation involving a commercial vehicle. (Hat tip to Christopher Mitchell.) Continue reading

In this case a security guard allegedly had repeatedly confronted an African-American and Muslim family in a shopping mall, ordering the mother to remove her traditional Muslim headgear or be forcefully removed. In the second confrontation, the security guard allegedly pulled a knife while violently yelling, among other things, "Come on . . . come on . . . I have not tasted blood in a long time." (The security guard eventually plead guilty to criminal charges of second degree assault and assault with a dangerous weapon.) Woods v. AlliedBarton Security Services, LLC, No. 11-2831 (D. Maryland Feb. 9, 2012)(unpublished) is a suit by the terrified family against the security guard, his employer, and the firm that hired them, that started off in the Circuit Court for Baltimore City. After the action was pending for many months and the plaintiffs failed to serve the security guard, the Circuit Court dismissed the security guard as a defendant "without prejudice." At that point, the remaining two defendants seized their opportunity, and removed the case to federal court based on diversity jurisdiction. By doing so, the remaining defendants would be able to try the case while pointing at an "empty chair" as the truly culpable party, and would also be able to subject the plaintiffs' damages experts to the rigors of a Daubert challenge. The first thing that the plaintiffs did after removal was to serve the security guard with the Circuit Court summons, and then move to remand the case to State... Continue reading

Who says it is a do-nothing Congress? Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011 on 12/2/2011, which now awaits the President's signature. Among other things, this statute makes significant adjustments to diversity jurisdiction. The amendments are helpful in a case involving multiple defendants, because the statute resolves a disagreement between the Circuits. Every defendant will now get 30 days to remove, however, the defendants will still need to be unanimous as to the removal decision. Where removal is based on federal question jurisdiction, there is a provision that requires the severance and remand of state claims not within original or supplemental federal jurisdiction. That provision requires some caution, because removal could result in the client having to defend two lawsuits instead of one. A summary of the bill is available at this post on ProfsBlawg. Thanks to the Civil Procedure and Federal Courts Blog for the link. Continue reading

A search should be conducted early in every case to determine if the plaintiff has filed for bankrtupcy. There are a number of good reasons to do so. DRI published a recent article on its website concerning the defense of judicial estoppel arising from the plaintiff's failure to disclose his or her claim as an asset in the bankruptcy proceedings. There is quite a bit of case law on judicial estoppel arising from bankruptcy. Another way in which bankruptcy proceedings can negatively impact a plaintiff's suit was recently illustrated by the case of Kocher v. Campbell, a decision of the Virginia Supreme Court that came out last June. In Kocher, the Court considered the issue whether the plaintiff in an action to recover damages for personal injuries had standing to maintain his action after filing a petition for bankruptcy, causing his claim to become an asset of his bankruptcy estate. The Court held that the plaintiff lacked standing, and dismissed the case. The plaintiff was involved in a motor vehicle accident, and before filing a lawsuit the plaintiff filed a voluntary Chapter 7 petition in bankruptcy. His petition failed to disclose his personal injury claim as an asset in Schedule B, and failed to list it on Schedule C as an exempt property. About three months later, plaintiff received a standard discharge in bankruptcy. The plaintiff then filed his civil action based on the motor vehicle accident. This was nonsuited then refiled and served. The defense filed a motion for... Continue reading

As a young associate, I once read an ABA pamphlet on how to manage a law practice, and one of the recommendations was to have a regular meeting of all attorneys, at which one of the agenda items would always be "trouble and how to meet it." The idea is that usually you can see trouble coming at you from down the road, and that's precisely when an attorney needs the collective wisdom and experience of the firm. Trouble and how NOT to meet it is illustrated by the recent decision of the Virginia Supreme Court in Landrum v. Chippenham and Johnston-Willis Hospitals, Inc. Landrum was a Virginia medical malpractice case in which the plaintiff was represented by an out-of-state counsel from Missouri, with Virginia local counsel. The Virginia Supreme Court affirmed the trial court's exclusion of the plaintiff's expert witness designations for failure to have them signed by local counsel, and the summary judgment in favor of the defense based on the plaintiff's lack of expert testimony. The trouble was coming down the road for a couple months before the end. Plaintiff's intial effort at expert witness designations failed to state the substance of the facts and opinions to which the experts were expected to testify and a summary of the grounds for each opinion. The defense moved to exclude the expert witnesses and for summary judgment. Plaintiff then attempted to cure the deficiency by providing the expert witnesses' reports, but failed to supplement the designation. There was a... Continue reading

Steve Job's passing was very sad; not because it was unexpected, as he was obviously ill, but because maybe we've lost his values. Jobs really believed in delivering quality; he wanted to make great products and did. Apple products typically cost more, but the extra cost was reflected in the quality of manufacturing and the quality and simplicity of the controls. It is interesting to recall that Jobs was forced out of Apple in 1985, and returned around 1996. I seem to recall reading articles in the financial press around that time that Apple was finished. I purchased an Apple computer for home use in the early 1990's, from Apple without Steve Jobs; I still have it in the basement. It was a PowerPC, and while it was good, it was not great. In fact, when it had a problem, it took a lot of time and trouble to fix the problem. I recall some long sessions on weekends doing this. A couple of times, I could only get it working again by upgrading the operating system. I remember having to buy a special utility program that would sort out conflicts among program extensions. When Jobs returned, it wasn't long before he ditched that operating system, and had a new OS built on Linux. That was a gutsy move, as it risked alienating their user base. At about that point, I myself switched to Windows computers for home use, for compatibility with the Windows software I used at the office.... Continue reading

I previously noted the legal malpractice claim that Joseph Stiglitz, the famous economist, brought in D.C. against his divorce lawyer. The outcome of the trial was covered by the Legal Times, among others. That trial was a good case study of how to hamstring a professional plaintiff from testifying as an expert on his own behalf. Here, the defense, represented by Richard A. Simpson, Esq., was able to obtain a ruling that Joseph Stiglitz, a nobel prize winning economist, could not testify on his own behalf concerning his own damages, where his damages were among other things his own stream of royalty income and the value of his own time. This turned out not to matter so much, as the jury verdict for the defendant on liability meant that the jury never even had to reach the damages issues. In his expert witness disclosures, Stiglitz included himself among his designated experts, albeit without much specificity. Rather, his counsel simply incorporated Stiglitz's deposition testimony and discovery responses. However, the expert witness disclosures were vulnerable to attack. First, the defense moved to strike the testimony of Stiglitz's retained damages expert, Michael Cragg. The main line of argument was that Cragg's Rule 26(a)(2) report was not submitted until a week before the close of discovery, and more than a year after the deadline for such reports. Cragg's untimely report included a discussion of the value of Stiglitz's lost time and the value of his book royalties, among other things. The Court granted the... Continue reading

In Hedgepath v. Whitman Walker Clinic, No. 07-CV-158 (D.C. June 30, 2011), the D.C. Court of Appeals, sitting en banc, held that the plaintiff, who was negligently informed by a doctor at the Whitman Walker Clinic that he was HIV positive, when in fact he was not, could sue for negligent infliction of emotional distress, even though the alleged negligence did not place the plaintiff within a "zone of physical danger." The Court reversed the trial court's summary judgment in favor of the defendants, and remanded the case for further proceedings. The Court recognized a duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiff's emotional well-being or the plaintiff's emotional well-being is necessarily implicated by the nature of the defendant's undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant's negligence. The Court concluded that in this case, the defendants, in the context of a doctor-patient relationship, undertook to test and treat the plaintiff for HIV, an undertaking that would necessarily implicate the patient's emotional well-being and entailed a specially likely risk of serious emotional distress. The plaintiff did not find out that he was misdiagnosed as being HIV positive for five years, and presented evidence of serious emotional distress as a result of the misdiagnosis. The new rule does not replace the prior "zone of danger" rule, but is a supplement to it. The... Continue reading

The Blog of the Legal Times reports on a legal malpractice trial in the U.S. District Court for the District of Columbia (No. 05-1826) in which the plaintiff, the Nobel prize winning economist Joseph Stiglitz, has sued his former divorce attorney. Judge Leon is presiding over the trial. Continue reading

In Ruffin Hotel Corp. of Md., Inc. v. Gasper, ___ A.3d ___ (Md. March 21, 2011), which was a retaliatory discharge case, the Maryland Court of Appeals held that it was error to instruct the jury that that plaintiff is required to prove that her opposition to the unlawful harassing conduct was a "determining" factor in the decision to terminate her employment; rather, it was only necessary for it to be a "motivating" factor in the decision. The Court also held that a negligent hiring and retention claim was not preempted by federal law, by Maryland anti-discrimination statutes, or by the Maryland Workers Compensation Act. Last but not least, the Court of Appeals held that Maryland Rule 5-404(b) is applicable only in criminal matters, not in a civil matter like this. Therefore, on retrial, the trial court need only apply Maryland Rule 5-403 on the issue whether her immediate supervisor's prior history of sexual harassment is admissible: Because the foundational requirements of FRE 404(b) are so vastly different from the foundational requirements of Md. Rule 5-404(b), we are persuaded that Md. Rule 5-404(b) should continue to be applicable only to evidence offered by the State against the defendant in a criminal case. In civil cases, whether the evidence at issue is offered by a plaintiff or by a defendant, the admissibility of relevant evidence that presents the "possibility of [unfair] prejudice is to be dealt with pursuant to [Md.] Rule [5-] 403." From the defendant's point of view, the net... Continue reading

In Norman v. Borison, ___ A.3d ___ (Md. April 22, 2011), the Maryland Court of Appeals held that lawyers who published copies of their state complaint to the press before it was filed in court, and made oral statements to the press about the suit, then republished filed versions of their federal complaints on the internet, were protected by an absolute privilege. However, the Court's holding on this contained a warning that lawyers who choose to try their cases in the press may do so at some peril: We are not prepared to say that plaintiffs are prohibited from promoting preemptively their class action suit, before they have been certified as such, or that they must avoid verbal communications to the press in doing so — provided framing the suit as a "class action" status is not shown to have been a subterfuge for funneling defamatory statements to the press. Such public promotion, under the latter proviso, is not part of the proper prosecution of most tort claims. Indeed, but for the fact that the mortgage rescue scam suit was striving to become a class action, our conclusion might have been different. The Kennedy adage retains vitality — lawyers who try their cases in the media do so at some peril. See Kennedy, 229 Md. at 99, 182 A.2d at 58. Continue reading

In Barksdale v. Wilkowsky, ___ A.3d ____ (Md. May 23, 2011), the Maryland Court of Appeals reversed a defense verdict in a Baltimore City lead paint poisoning case, due to prejudicial error in the jury instructions. In doing so, the Court reviewed Maryland law as to when an error in jury instructions is reversible error, and when it is harmless error. In the lead paint poisoning trial, the trial court gave an instruction regarding the joint responsibilities of landlords and tenants in keeping the property in good condition. This instruction was essentially the reading of a provision in the Baltimore City Housing Code. The Court found that this instruction was error, because neither the plaintiff's contributory negligence nor negligence of her family members were at issue in the case. The Court of Appeals found that this instruction was prejudicial, because it may have permitted the jury to speculate, or may have precluded a finding of liability where it was otherwise appropriate. The Court of Appeals found that the jury instruction as to the occupant's duty to keep the dwelling in a clean and sanitary provision had no relevance to the issues at trial. The plaintiff was a child when she lived in the dwelling, and whether or not her grandmother kept the house clean was irrelevant. Under Maryland law, negligent acts of a parent cannot be imputed to a child, and such negligent acts that merely contribute to an injury do not necessarily rise to the level of a superseding... Continue reading

is located at this link. Not bad for a small business either. Hat tip to BeSpacific.com for the link. Continue reading

In Hillbroom v. PricewaterhouseCoopers LLP, No. 10-CV-92 (D.C. April 7, 2011), the D.C. Court of Appeals reversed the dismissal of a lawsuit against a tax attorney and an accounting firm for professional negligence, breach of contract and breach of fiduciary duty. The alleged negligence was the failure to timely file a formal claim for refunds for federal estate taxes paid on an estate worth approximately $353 million. The trial court granted the defendant's motion to dismiss under Rule 12(b)(6) based on statute of limitations grounds. The D.C. Court of Appeals reversed. The defendants moved to dismiss based on the three year statute of limitations under D.C. Code sec. 12-301, arguing that the period of limitations began to run at the latest by Dec. 10, 2002, when plaintiffs retained new counsel and admittedly were aware that the defendants had missed the tax refun filing deadlines. The trial court agreed with that, and further found that the plaintiffs suffered a separate injury at the same time when they incurred additional litigation expenses. The Court of Appeals reversed, noting that D.C. precedent contemplates a flexible, case-by-case approach to determining when the period of limitations began to run. Here, the statutory deadlines for filing formal claims for federal estate tax refunds are subject to various exceptions. The Estate had utilized an informal refund claim, for which there is legal authority. The Court therefore reasoned that without reviewing the Refund Claim Memorandum and an expert opinion -- neither of which were in the record --... Continue reading

Who would have thought that a former head of the SEC would for any reason be struck as an expert witness in a securities fraud case? Yet, that's what happened in In re Fannie Mae Securities Litigation, No. 04-1639 (DDC March 8, 2011). Former SEC Chairman Harvey Pitt had been retained as an expert by the lead plaintiff, and was deposed for a day. However, he refused to continue his deposition after he learned that former SEC Chief Accountant Donald Nicolaisen had been deposed in the action, because he had not had an opportunity to review Nicolaisen's testimony. In their motion the defendants argued that the discovery schedule for expert witnesses had been negotiated with great effort, and that allowing Plaintiffs' to unilaterally delay Mr. Pitt's deposition and then potentially have him change or add to his opinions would upset the schedule, and would waste the time the defense experts had already expended to rebut those opinions. Judge Leon had harsh words for lead plaintiff's counsel for failing to provide Mr. Pitt with that transcript, stating "Of course, the repeated failure of Lead Plaintiffs' counsel to provide Mr. Pitt with Nicolaisen's deposition transcript, both prior to the submission of his expert report, and prior to his deposition, is inexplicable and inexcusable!" The Court pointed out the Lead Plaintiffs' counsel had initiated the litigation which had required the deposition of Mr. Nicolaisen in the first place. The Court struck Mr. Pitt as an expert witness, finding that the prejudice to the... Continue reading

There was an interesting post on Ron Miller's blog, The Maryland Injury Lawer Blog, on the recent case of Robertson v. Iuliano, No. 10-1319 (D. Md. Feb. 4, 2011). Robertson v. Iuliano illustrates that in a case filed in state court, where diversity jurisdiction would exist but for the presence of forum defendants, and the forum defendants have not yet been served, the non-forum defendant can, in many jurisdictions including Maryland, still remove the action to federal court. In fact, in the Robertson case, the non-forum defendant removed the case to federal court before he or any of the other defendants were served. Under the unanimity rule reaffirmed by the 4th Circuit in its recent en banc opinion, where there are multiple defendants, it is necessary for the other defendants in the case to consent to the removal within 30 days of their being served. Here they apparently did, because they filed oppositions to the motion to remand. The District Court denied the plaintiff's motion to remand. In a medical malpractice case, removal would result in the application of the more stringent Daubert standard for the admissibility of expert testimony, which would be reason enough to do it. I can understand why this result could be viewed by the plaintiffs' bar as unfair, but on the other hand, I've seen many cases where a forum defendant was joined in a complaint for no apparent reason other than to destroy diversity. There was a recent article on this topic in DRI's... Continue reading

DRI's online newsletter, E-Discovery Connection, vol 5, issue 3, has a number of worthwhile articles on discovery of information on social networking sites. I like the case where a federal judge offered to do an in camera review of a party's Facebook account by "friending" the party. Think about whether you would want a federal judge reviewing all of your Facebook pages, which would include things you didn't even write. The following cases are among those discussed in that newsletter: EEOC v. Simply Storage Mgmt. (courtesy of Indiana Law Blog) O'Grady v. Superior Court Romano v. Steelcase Barnes v. CUS Nashville McMillen v. Hummingbird Speedway Dexter v. Dexter Moreno v. Handford Sentinel Rehberg v. Paulk McCann v. Harleysville Crispin v. Audigier Continue reading

From the Virginia Lawyers Weekly blog: The Fourth Circuit has rejected an argument in a bankruptcy fraud appeal that a Tweet represented juror misconduct, and that the trial court erred by not investigating it. The Court's response to this was that: Forde's string of possibilities about the origin of the Twitter posting — that the foreperson possibly talked to her husband, who possibly talked to his friend, who possibly took to Twitter in response to what the husband possibly told him — is nothing but speculation and thus falls far short of establishing reasonable grounds for investigation. The district court therefore did not err by denying Forde's request for an evidentiary hearing to investigate his claim. What surprised me is that the defense even came up with an argument linking a Twitter posting back to the jury foreperson through several degrees of separation, kind of like the six degrees of Kevin Bacon. You need more than that to establish juror misconduct. Most likely the defendant, who had an online tutoring business, came up with this argument and the defense attorneys felt compelled to raise it on appeal. Continue reading

A round-up of my favorite blog posts of the week: 1. Mold case in Eastern District of Virginia survives a motion to dismiss, from the Va. Lawyers Weekly blog. The plaintiff is proceeding on a negligence per se theory based on violations of the state building code. 2. A judge in the Eastern District of Virginia rejected a Twombly challenge directed at a defendant's affirmative defenses. Motions to strike affirmative defenses have long been a practice in Virginia. In D.C. and Maryland, plaintiffs' counsel don't waste their time with it. Sounds like the Judge here doesn't like his time wasted with it either. After all, it is the "rocket docket." 3. Comparison of file sharing services, YouSendIt vs SendNow, courtesy of the Oregon Law Practice Management Blog 4. List of most popular malpractice prevention downloads of the year, courtesy of PracticePro. Continue reading

Krebs on Security has another solid piece of reporting on the epidemic of commercial cyber-fraud, and on who should bear the loss. Continue reading

After I helped my wife chop the ice off her van windows this morning at 4:30 am, I made this list of free legal classics: The Art of Cross-Examination, by Francis Lewis Wellman The Work of the Advocate, by Elliott and Elliott Life and Letters of Joseph Story The Works of Rufus Choate Day in Court, or The Subtle Arts of Great Advocates, by Francis Lewis Wellman A Treatise on Equity Jurisprudence, by Pomeroy Blackstone's Commentaries on the Laws of England, Bks 1-2 John Marshall Gest, The Lawyer in Literature Samuel Warren, Famous Cases of Circumstantial Evidence John Forrest Dillon, John Marshall Harlan Fiske Stone, Law and its Administration Livingston Rutherford, John Peter Zenger, his press, his trial Hicks, Men and Books Famous in the Law Albert J. Beveridge, The Life of John Marshall, vol. 1., vol. 2., Continue reading

A recent opinion from the U.S. District Court for the District of Columbia, Hickey v. Scott, 738 F.Supp. 2d 55 (D.D.C. 2010), illustrates how litigation can escalate. In this case, a lawyer successfully represented the client in an EEOC sexual harassment suit. Afterwards, a dispute arose as to the amount of the lawyer's fee. The lawyer, acting pro se, sued the former client for breach of contract and imposition of a constructive trust. The former client, acting pro se, filed an answer with several counterclaims. Later, the former client retained counsel, and thereafter filed an amended answer along with counterclaims for professional negligence, breach of fiduciary duty, and violations of the D.C. Consumer Protection Procedures Act. The lawyer then answered and filed his own counterclaims against the former client, alleging fraud, abuse of process, and conversion. Subsequently, in the words of Judge John D. Bates, "[t]he parties fought over almost everything." In resolving cross motions for summary judgment and cross motions for sanctions, the Court ended by awarding Rule 11 sanctions to the former client, and against the lawyer, as a result of the lawyer's counterclaims for fraud and abuse of process. With regard to the abuse of process claim, the Court wrote that: [A]n ulterior motive by itself is insufficient to sustain a claim for abuse of process. See Scott v. Dist. of Columbia, 101 F.3d 748, 755 (D.C. Cir. 1996) ("As the Restatement of Torts makes clear, the fact that a person acts spitefully, maliciously, or with an... Continue reading

Andrew H. Baida writes very fine columns concerning appellate advocacy that are published in the Maryland Daily Record. A number of his past columns are collected here on his firm's website, and are well worth the time to read. Continue reading

It seems unusual for the 4th Circuit to write a 21 page opinion, accompanied by a 20 page concurrence, but then designate it only as "unpublished" and "not binding precedent in this circuit." That's what happened in Stillmock v. Weis Markets, Inc. The Court's action in not publishing the opinion seems to be an indication that it does not want to do anything to encourage suits of this type. Stillmock v. Weis Markets is a "FACTA Truncation" case. FACTA is an acronym for the Fair and Accurate Credit Transactions Act of 2003. Among other things, this statute provides that "no person that accepts credit cards or debit cards for the transaction of business shall [electronically] print more than the last 5 digits of the card number . . . upon any receipt provided to the cardholder at the point of the sale or transaction." The statute also says that the merchant cannot print the card's expiration date on the customer receipt. The statute provides for statutory damages of not less than $100 and not more than $1,000 against any person who "willfully fails to comply with" the foregoing truncation requirements, punitive damages as the court may allow, and attorney's fees and costs. However, the Supreme Court has interpreted the phrase "willfully fails to comply" in the preamble sentence of 15 U.S.C. sec. 1681n(a), as reaching not only knowing violations of FACTA, but reckless ones as well. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 (2007). A reckless... Continue reading