Tuesday, June 23, 2009

Metro Train Crash Tragedy

In response to the tragedy Monday evening here, I wanted to do something to help my local community. Of course I am not a first responder or a medical doctor, so other than taking my hat off to those heroes, there is little that I can do in the short term to provide aide or comfort. What I can add here is some legal insight to those connected to the tragedy who are ready to consider the legal aspects of their losses. Some short notes from recent wrongful death cases are listed below.

Wrongful death claims are often brought by spouses, children and parents, for their losses. A separate legal claim known to lawyers as a survival claim represents the loss suffered by the person who has died, and it is brought by the personal representative of the estate.

In a wrongful death case, the person who has suffered the loss of a family member must prove: that METRO or another defendant negligently caused the death of decedent. Weimer v. Hetrick, 309 Md. 536, 547 (1987). In addition the plaintiff must meet the law's definition of a beneficiary and the case must be filed within what is known as the statute of limitations, 3 years in Maryland. Md. Cts & Jud. Proc. Art. § 3-904.

In a similar fashion, the personal representative of the estate must prove that METRO or another defendant negligently caused the decedent’s injuries, and, to claim damages for pain and suffering, the estate must show that there was a degree of consciousness before death. Tri-state Poultry Coop. v. Carey, 190 Md. 116, 125 (1948).

For further information, please contact Michael J. Schreyer about his firm's cases against METRO. Michael.Schreyer@vzw.blackberry.net 301-861-5070.

Saturday, June 20, 2009

Rockford IL Train Derailment Injury Cases

The news out of Illinois today is tragic. At least one life has been lost at the scene, due possibly to excessive speed for the wet conditions. This tragedy will need prompt investigation by several independent investigators to determine what the appropriate speed was for the conditions and what precautions should have been in place to prevent the train from derailing.

Often in cases like this our litigators have engineers at the scene within 24 - 72 hours, to preserve evidence and build the case from the ground up. Many intersection cases involving trains can also be lost by a failure to quickly gather this evidence. By contrast the insurer and claims team for the railroad are likely on the scene now. They may be collecting photographic, video and witness information.

At trial there may well be a team of defense experts in addition to this initial investigative team. The result may well be a legal battle of experts, and a jury left to determine which group is most credible and objective.

Friday, June 19, 2009

Workers' Compensation - benefits for preexisting disabilities

I just returned from a hearing with the Maryland Workers' Compensation Commission, and I want to share something that many attorneys overlook when preparing for the final hearing on permanent injury compensation. Many of those who I represent have preexisting disabilities. Most attorneys who represent disabled workers know that in serious injury cases the WCC will award benefits for preexisting disabilities, including disabilities that are aggravated by the injury and those that are not. But some of these disabilities are overlooked.

The case I had today is a good example. My client had a bad back injury that resulted in her losing her job and suffering a significant physical impairment of her daily activities. In addition she had an obvious difficulty in understanding basic information. I hired a consultant to test her and we found a learning disability. This will likely result in a doubling of the value of the benefits she will receive. Similar cases to this include those where injured workers have worn glasses, had high blood pressure and diabetes.

The answer to these cases really comes down to preparation, careful, thorough preparation. And the results show the fruits of that work.

Wednesday, June 10, 2009

Raven's retired McCray won, then lost $33.6 Milion in court this week.

Michael McCrary won a $33.6 million damage award last year. But his former business associates had that result overturned by Maryland's intermediate appellate court Monday. Far from being the end of the case, the court sent the case back to Baltimore City Circuit Court for a new trial on damages.

The appellate court decided a Baltimore City Circuit Judge failed to follow proper procedures in holding McCrary's business associate in contempt, and found that her ruling was an abuse of judicial discretion in not allowing the defense to contest the alleged damages.

The suit was filed in February 2007, a year and a half after Hurricane Katrina interrupted renovation of an old downtown New Orleans office building. McCrary alleged defendants had secretly pocketed millions of dollars in insurance proceeds. The June 2008 verdict awarded McCrary $15.8 million in compensatory damages and the same in punitive damages without any of the defendants in court to defend the claim for damages.

Tuesday, June 9, 2009

The FDA Doesn't Provide Consumers with Injury Protection

You would have heard some heated comments between Energy and Commerce Committee chairman Henry Waxman, D-Calif., Rep. Steve Buyer, R-Indiana, had you tuned into the debate over a new law to provide legal remedies where medical devices only meet minimum governmental standards. Waxman said patients should not be barred from seeking justice through the courts. The FDA's ability to protect the public has plummeted, said Waxman, because the agency is severely underfunded. Buyer retorted that Waxman’s reasoning was "bizarre logic."

Georgetown law professor David Vladeck, soon to be the Federal Trade Commission's consumer protection chief next month, said a recent Supreme Court's decision is "the worst of both worlds" for consumers. The FDA, said Vladeck, can't possibly assure that every medical device on the market is safe, and because of Riegel, consumers can’t rely on the tort system if they're injured by a malfunctioning device.

Can the Maryland Legislature take away your right to fair compensation?

You may be surprised to learn that in this past session of the legislature, no less than 8 bills were submitted for changes in Maryland law that would have significantly or totally deprived some injured folks the right to reimbursement of their losses. The new laws, defeated by actions of injury advocates who spoke out against them, included special protections for improper use of medical devices, below standard medical care by some corporations, and some public activities of Montgomery County, Baltimore City and other local governments.

With the limits already in place on the payment of losses to injury victims, why do these challenges continue to surface? The answer is money. Those who are injured do not have the power of the large governmental interests at work in Annapolis. But that isn't the last word. Where offensive limitations come up, the injured are often heard when they speak out to stop the laws that limit their rights. Hat tip to MAJ http://www.marylandassociationforjustice.com/md/index.cfm?event=showPage&pg=AmicusBriefs .