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Experienced truck accident lawyers know that when beginning to investigate a new matter, it is extremely important to hit the ground running. Why? Because the moment the client signs the retainer, you are already behind. Most likely, you are significantly behind.

Why? Because the trucking company and its’ defense team had a head start. The lawyers who defend trucking companies with regularity have a 24-hour crash line (ok, an associate with a cell phone) for the company to call immediately after the crash. As soon as dispatch knows there has been an accident, they call the number. Once the lawyer gets the call, they hustle to get somebody out to the scene. They call a reconstructionist who will be able to get there while the evidence is fresh and undisturbed. They get the vehicles and the scene photographed, and they get an investigator moving to obtain statements from the witnesses. This has all most likely happened before the injured person even thinks to call a lawyer.

On the other side, let’s assume the accident victim is badly injured. He’s in the hospital for two weeks. After he stabilizes, he begins the search for a personal injury lawyer. After talking with a few lawyers, he takes another week to decide which one he likes best and to sign a retainer. At that point, the lawyer has only had a client to represent for 5 minutes, and he’s already 3 weeks behind the defense in his investigation.

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truck accident injuryLawyers who do not regularly handle injury cases from truck accidents often think it is simply another car accident case, only with bigger vehicles. This could not be more wrong. Trucking accident injury cases have different factual and legal issues than car accident cases.

Although the factual differences are many, they will be addressed in a later post. This post is about some of the legal issues that are important in a truck accident case.

When they become involved in a lawsuit over a car crash, most people think it would be very helpful to their case if the other driver had a bad driving history, such as traffic violations or prior at-fault accidents. Of course, that would only be helpful if the jury ever found out about it. Usually they won’t. That is because generally, the only issues at play in a car accident case are 1) was the drviver negligent; and 2) damages. Prior driving history is usually not relevant to either of these issues, and therefore isn’t admissible in evidence. For laymen, the jury isn’t told about prior driving history because it doesn’t have anything to do with whether the bad guy was negligent that day, or with the proper amount of damages.

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I have two cases where the same issue has recently popped up. Each of these cases is pending in a Maryland Circuit Court in what I would call the “D.C. Suburbs.” Specifically, Montgomery County and Frederick County.

In each, the defense has selected a doctor or doctors to examine my clients. This is normal in a personal injury case. Plaintiff puts his or her physical condition at issue by making a claim for damages for a bodily injury. I don’t have a problem with the defense wanting an examination of my clients, in and of itself. I agree that under Md. Rule 2-423, a court would likely find “good cause” to order an examination if I did not consent.

Related Information

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defense request medical authorizationOne thing we are seeing defense attorneys do more and more is using a Md. Rule 2-422 Request for Production to try to get plaintiffs to sign authorization forms permitting the defense to access medical and other information without a subpoena. For them, it’s a more efficient (some might say lazy) way to obtain the same material they could get by serving a subpoena on the person who has whatever records they want. For plaintiffs, it’s allowing the defense free license to root through anything they want without worrying about the protections afforded plaintiffs under the Maryland Rules and the Health-General Code.

Because we see this so often, I imagine there must be personal injury lawyers out there who allow their clients to sign them.  We have too, on occasion.  You want to be reasonable.  There are circumstances where there is wisdom in having the client to sign a defense authorization. In some cases, we don’t have a choice. In first-party claims against an insurance carrier for UM/UIM benefits, for example, the carrier often arguably has a contractual right to obtain an authorization written into the policy. Or if the records being sought are maintained out of state (and therefore outside the subpoena power of a Maryland court) we will often agree to an authorization, as long as it includes appropriate limitations that we have approved in advance, like excluding records about mental health, substance abuse, or STD/HIV/AIDS treatment. If they don’t agree to our requested conditions, they are welcome to get an out-of-state subpoena issued the hard way.

It makes no sense to make opposing counsel’s life difficult just for the heck of it.  But that is not what we are doing here. We cannot just give away our clients’ privacy protections under the law for no good reason, and that is what I would do by allowing my clients to sign these broadly-drafted defense authorizations.

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There has been some controversy recently in the community of Maryland lawyers who handle personal injury and worker’s compensation claims when it comes to finding an expert who can testify to the plaintiff’s injuries in car accident cases.  Sometimes, you have a doctor, often the treating doctor, who was at one time faced disciplinary charges for something or another.

expert witness disciplinary chargesWhy are we dealing with a doctor with a history of problems in the first place?  Good question.  Sometimes the charges are not serious or not related to the quality of care the doctor is providing. Sometimes the doctor is a treating doctor you did not choose to have as your witness.  In other cases, you may not have knowledge of the disciplinary action against the doctor.

In the real world, it can sometimes be difficult to locate medical providers who will treat patients who were injured in accidents or on the job. If the patient was injured in an accident, the physician may have to wait for payment until the personal injury case resolves. In the case of a work-related injury, the physician must by law accept payment according to the fee schedule set by the Maryland Worker’s Compensation Commission, which is usually far less than the rates paid by private insurers. Many medical providers aren’t willing to accept these conditions, so the few who will are an invaluable resource for Maryland personal injury lawyers and our clients.

One of the local medical practices willing to treat these sorts of patients has become involved in proceedings before the Maryland Board of Physicians. Some of their doctors have pending disciplinary charges, and some others have already consented to orders resolving the charges. This has attracted the attention of those in the legal community working on those sorts of cases and has been commented on by industry bloggers.

I kind of view this as a tempest in a teapot. The charges are not the sort where I would expect any of the physicians involved to lose their licenses or have them suspended. But it absolutely is a thing.  If it might bother a single juror, it is a thing.

Anyway, the key point is that in Maryland, the existence of the charges and/or disciplinary orders before the Maryland Board of Physicians is not discoverable or admissible in any civil or criminal action in the State of Maryland.  Too many unsuspecting car accident lawyers in Maryland do not know this and their clients get burned.

The Statute on Point

The statute for this is Md. Health Occupations Code Ann. §14-410 (a). The statute says that:

(1) The proceedings records, or files of the Board or any of its investigatory bodies are not discoverable and are not admissible in evidence; and

(2) Any order passed by the Board is not admissible in evidence.

So if you find that you have a treating physician or an expert witness who has been involved in proceedings before the Maryland Board of Physicians, relax. Those proceedings will never come into evidence, and the jury will never hear about them. Provided, of course, that you are prepared with a motion in limine citing the law on the issue.

Not for nothing, the purpose of this statute is not to help personal injury victims but to protect doctors we are suing for medical malpractice.   But this by-product sometimes helps personal injury lawyers.

This Win Might Be a Loss

Of course, the question you have to ask yourself is whether you want a doctor who has been disciplined by the Maryland Board of Physicians.  There was a case a few years ago where some Maryland doctors in a group who do a lot of personal injury and workers’ compensation cases were disciplined for something that was said to me — according to the gossip mill of unbiased observers who handle these cases — trumped-up charges.  I have no clue one way or the other.  But you want to think twice before willingly picking a doctor who has had disciplinary problems because where there is smoke there is quite often fire.

 

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Putting a bad pun in the title is always a great start to a blog post, right? Try the veal, I’m here all week. But seriously, proving medical causation of an injury in a personal injury case nearly always requires expert medical testimony. There a few exceptions for objective injuries that would be obvious to a layperson (like cuts and bruises), but generally proving medical causation requires a physician to testify that within a reasonable degree of medical probability, the injury or medical condition was causally related to the accident.

The most obvious source of this testimony is the plaintiff’s treating physician. There are strengths and weaknesses in using a treating physician as an expert witness. One of these can be that since you generally do not choose the treating physician, you are stuck with their qualifications, however good or bad they may be.

This issue can arise when the treating physician turns out to hold the degree of Doctor of Osteopathy rather than Medical Doctor. When this happens, it is a natural area of cross-examination. Juries expect physicians and expert medical witnesses to be M.D.s, and tend to be skeptical when they are not.

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If you have been injured in a car or truck accident in Maryland, it is easy to find a lawyer to take your case. Just about every general practice lawyer in the state handles auto accident cases to some extent, and can usually do a good job. But sometimes these lawyers get involved in cases that can’t be settled, and they may not have the experience or resources to take the case to trial.

That’s where we come in. We get involved in a lot of cases as referrals from other lawyers under Rule 1.5 fee-sharing agreements. The referring lawyer can stay as involved in the case as they wish- it can be a straight referral, or they can stay in the case through trial.

The best way for you to find out about what co-counseling with M&Z is like is directly from one of our referring lawyers. Here’s what one of our referring lawyers had to say about a case that we got involved in about 60 days before trial:

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Uninsured/underinsured motorist cases are probably the most complicated kind of car accident cases you will see. These cases are called “hybrid” actions because they combine contract and tort law. You have the underlying tort case against the negligent driver, along with a contract cause of action against the UM carrier. You will have the normal concerns about proving liability and damages that you would have in any car accident case. In addition, you must be careful to prove the contract elements that you need to show entitlement to UM benefits.

These are things like the existence and extent of the tortfeasor’s liability coverage, the existence and amount of the UM coverage, and the plainitff’s entitlement to benefits. Obviously, you would send interrogatories to seek to establish one or more of the contractual prerequisites. But another good way to get the needed proof is to use an under-utilized but very powerful discovery device called a Request for Admission.

Request for Admissions

These are governed by Md. Rule 2-424. Basically, they are a list of facts, the existence of which the defendant is asked to either admit or deny. If admitted, the admission is considered conclusive proof of the existence of the admitted fact for the purposes of the case. They are especially good for proving the existence of simple “paper” facts like the ones you encounter in a UM case.

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Having the right equipment is worthless unless you know how to use it. That is why the second important element to using multimedia at trial is preparation. I never, ever, ever use anything at trial that I have not practiced with. For PowerPoint, this means doing a complete practice run just as if I was at trial. This starts with unpacking and setting up the equipment from scratch. Then I click through each slide to make sure that they are in the correct order, they all work and that they appear big enough for the jury to see them.

PRACTICE TIP: Text slides and bullet points are not recommended. Juries do not like them.  Use PowerPoint for images (photos and important documents) and video. The jury should be focused on you, your client and the story you are telling, not looking past me to read text on a screen. I only use text slides in two circumstances: showing jury instructions in conjunction with my argument, and showing the verdict sheet as I believe it should be completed.

technology use trialThe preparation for using video is basically the same.  Actually, it may be even more important. If you have a malfunction in your opening statement, you can always ditch the PowerPoint and go old school, Moe Levine-style. Heck, if handled gracefully it might even help you with the jury by humanizing you and showing you are cool under fire. Good lawyers can tell a compelling story with nothing but their words, eyes, and body language. An expert video is different. You can’t toss it aside if it doesn’t work because then all of your medical evidence is gone. You have a huge hole in your case where the expert testimony on medical treatment and causation should have been. Yeah, I guess you could read the testimony into the record if there was really no other option, but that is just awful. Unpersuasive and irritating.

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When a driver gets sued for injuring somebody in a car accident, they don’t have to go out and spend their own money hiring a lawyer to defend the case. They call up their car insurance company and tell it that they have been sued. They send in the papers, and the insurance company provides them with a defense attorney.

Sometimes this is an “in-house” insurance defense lawyer, other times it is an outside lawyer selected and paid by the insurance company. Either way, the insurance company picks and pays for the driver’s defense attorney. So what you have is a three-sided (or “tripartite”) relationship- insurance company, defense attorney, and defendant driver.

Whether in-house or outside counsel, the defense lawyer has a paramount ethical duty to act in the best interest of his or her client- the defendant driver. This is true even though the insurance company selected the lawyer, is paying the lawyer’s fee, and controls most of the important decisions in the litigation, including whether to settle and on what terms.

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