Expert Opinions of Percent of Disability in Accident Cases in Maryland

An expert is permitted to render an opinion as to the percentage of disability suffered by the Plaintiff in personal injury cases Provided: (1) the doctor is expert in rating percentages and has a medical basis for the opinion and(2) the doctor is familiar with the Plaintiff's work, occupation and activates. The opinion can cover how the physical disability affects personal and economic disability. See 228 A 2d. 300 and also 165 A 2d. 898. I suggest if you are heading in the direction of loss earning capacity this percentage opinion affecting performance at work will need to be coupled with a vocational rehab expert to get the loss of earnings as a result of the disability. If you have questions regarding personal injury or car accidents in Maryland, Call the Accident Attorney. I will answer your questions over the phone at NO Cost to You. 1-888-760-7339

Damages in Maryland Personal Injury

Personal injury damages in Maryland are broken down into Special (economic) and General (non economic) damages. Special Damages include, but are not limited to: Medical Expenses (past, present and future); Travel Cost; Lost Wages (past, present and future); Lost Earning Capacity; Loss of Vocation; and Loss of Services. General Damages include but are not limited to: Pain and Suffering; Disfigurement; Loss Capacity to Enjoy Life, Pre-Impact Freight and Loss of Consortium. Damages must be proven by a preponderance of the evidence (more likely then not the damage occurred). The jury can consider pre-injury health and post injury health as well as permanent conditions, pain and suffering and impact on activities. Damages Are Outlined As Follows: Pre-Impact Freight Past Pain and Suffering Present Pain and Suffering Future Pain and Suffering Past Medical Bills Present Medical Bills Future Medical Bills Past Lost Wages Present Lost Wages Future Lost Wages Loss Earning Capacity Diminished Earning Capacity Loss Enjoyment of Activities Loss Of Consortium Prescription Cost Travel Mileage

Maryland Injury Lawyer

Future Loss Income for Disabled minor child:

The scenario is a minor child's brain injury and the claim for lost future earnings as a result of that disability. Evidence produced at trial first identified the injuries sustained. Subsequently an expert offered testimony of the probability that the child's future accomplishments would be limited by his disability resulting in a high school education and as a result limited earning capability. As compared to the probable accomplishments the child would have reached based upon his mother's educational background and the income he would have realized as a college graduate had he not encountered the disabilities. The expert testifyed that deficits will limit his ability to work in jobs suitable to the education he likely will be able to attain, thus resulting in his being a disabled worker.

In such instances the expert would be called upon to offer expert testimony about average earnings and a comparison of the amount of future earnings that minor child will not enjoy due to his disabilities.

If you or someone you know has the need for a Maryland injury lawyer please feel free to call my office at 1-888-760-7339. We will discuss your case over the phone at no cost to you.

Lost Future Wages in a Maryland Personal Injury Case

In Maryland, the law presently is that in a personal injury action, as well as in a wrongful death action, any damages awarded for loss of future earning capacity must be reduced to present value. Walston v. Sun Cab Co., 267 Md. 559, 574-75, 298 A.2d 391 (1973) (wrongful death action); Dennis v. Blanchfield, 48 Md.App. 325, 333, 428 A.2d 80 (1981), modified on other grounds sub. nom., Blanchfield v. Dennis, 292 Md. 319, 438 A.2d 1330 (1982) (personal injury action). We believe, damages awarded for loss of future earning capacity must be reduced to present value. The situation requires employing an accountant or economist to reduce a claim for future lost wages to a present value. The situation is encountered where you can expect your client can return to their prior employment but they will not be able to do so for some identifiable future period of time.

Wrongful death in a Maryland personal injury action

An action for wrongful death must be filed within three years of the death of the injured party. The wrongful death action arises at the time of the death and not at the time of the injury or the commission of the tort. The complaint filed with the court must state that it was brought within the proper time frame. The statute of limitations is not tolled by the provisions of courts and judicial proceedings 5-201 which normally would toll the statute of limitations during the claimants minority. A wrongful death action is a separate and distinct action from a survival action. A survivor action seeks recovery for the decedent. Whereas the wrongful death action is brought for the benefit of the decedents survivors. The damages are measured by the harm to those persons resulting from the decedents death. If you have questions regarding wrongful death in the state of Maryland please feel free to call me at 1-888-760-7339. I am more than happy to answer your questions right over the telephone at no cost to you.

Defendant in Default Maryland Failure to Answer

In a case involving personal injury lawsuits in Maryland a defendant once served has a responsibility to file an answer. There are circumstances where the defendant fails to file an answer. In that case the plaintiff would ask the court to enter a default judgment against the defendant for failure to file an answer. The question however still remains to what extent the defendant can participate in a hearing to establish damages. The Maryland Court of Special Appeals addressed this issue in Fisher v McCrary Crescent City, LLC 972 A 2d 954 and(2009). Ultimately the court determined that a defendant in default still has the right to participate in the hearing affecting damages. Specifically the defendant in default, for failure to file a responsive pleading, can present evidence to mitigate damages; cross-examine witnesses regarding damages; present evidence on damages; object to evidence and make arguments. It is my position that discovery must be executed to a defendant in default to identify his evidence on mitigation, causation issues, damages and what if any evidence he finds objectionable.

Estatblishing permanent Injury in a Maryland Personal Injury Case

Before you can establish that the effects of an injury are permanent you first need to establish that the injury was caused by this accident at issue. Typically this is accomplished by the timing of the onset of the complaints of pain and for some people diagnostic test confirming injury. Once you have established this causal connection you will may need expert testimony to establish that the effect of the injury is not likely to change. The only exception to this requirement for expert testimony to establish permanency is when the injury is of such a nature that common knowledge is sufficient to justify its probable permanent nature. For example in Cluster v Upton, 165 Md. 566 (1933), the issue of permanent injury was submitted to the jury without expert testimony where the plaintiff's finger, fractured in the accident, was still crooked 11 months after the accident.

Lost Wages and Future Loss of Income as Damages in Maryland Personal Injury

I receive several communications each week either by telephone calls or e-mails from people inquiring about the difference between lost wage claims and loss of future earnings arising out of injury in a Maryland personal injury case.

Lost wages from the date of the accident to the date of trial or to the date that you return to work, even if in some modified capacity, represent your claim for lost wages.

Future loss earnings represents the lost income you can expect from the date of trial forward into your future. Proof of future loss earnings typically requires a doctor who is familiar with your work requirements and your physical limitations as a result of your injury caused by the accident to testify within a reasonable degree of medical probability that you cannot return back to your prior employment. Coupled with that you will need a vocational rehabilitation expert, or someone of like credentials, to tell us what your post accident physical capabilities are and what job markets exist for people with your capabilities. Finally, you will need an economist to calculate the total amount of your future loss earnings. They will then have to reduce those future loss earnings to a present value. The only other piece of evidence you will need to prove future loss earnings will be the work life expectancy calculations which will be provided by the economist.

If you have any questions on these issues or any other issues affecting Maryland personal injury please feel free to call me at 1-888-760-7339.

Wrongful Death In Maryland Personal Injury

Wrongful Death In Maryland Personal Injury

The wrongful death statute in Maryland can be found in the Courts and Judicial Proceedings Article starting with section 3-901 through 3-904. Additionally Maryland Rule 15 -1001 must also be reviewed prior to initiating suit. The wrongful death statute defines the persons who are entitled to bring an action for wrongful death as a result of the loss of someone who has died. Specifically the claim may be brought by primary beneficiaries. Those persons are defined as a spouse, a parent, and the children of the deceased person. If there is no primary beneficiary then suit may be brought by secondary beneficiaries, who are defined as any person related to the deceased person by blood or marriage who was wholly dependent upon the deceased. A person is considered wholly dependent under the wrongful death statute when he or she existed financially entirely on the income of the deceased and has no other consequential source or means of being financially self-supporting other than income of the deceased. Even in circumstances where spouses are separated and near divorce the surviving spouse is still entitled to bring an action and obtain recovery. An illegitimate child may also qualify the primary beneficiary under the statute. Additional a viable unborn child at the time of the decedent's death may qualify as a primary beneficiary under the statute. However, a stepchild, stepparent or personal representative however is not permitted to be a claimant under the statute.

It is important to remember that primary beneficiaries who are not pursuing suit must still be named in the pleadings

Erbs Palsy

This is an injury that can be caused at birth and often times is the result of medical negligence. There are specific protocols doctors and mid wives are trained to follow when they encounter a birth emergency such as the baby becoming stuck due to the shoulders not passing through the birth canal. The various protocols include:

McRoberts Maneuver: Where the mother is repositioned and flexing knees to abdomen

Surapubic Pressure: Where push pressure is asserted over the mother's abdomen.

Wood's or Cork Screw Maneuver: Rotating the child's upper shoulder downward and the downward shoulder up ward.

C- Section: Which is extracting the baby through surgery.

There are four major types of injuries which occur to the nerves in the brachial plexus network which can result in some form of palsy:

1. an avulsion meaning the nerve is torn from the spine.

2. a rupture meaning the nerve is torn but not where it attaches to the spine.

3. a neuroma meaning the nerve has tried to heal but scar tissue has grown around the injury placing pressure on the injured nerve praxis. While the nerve has been damaged, it has not been torn and improvement should be seen within 3 months.

4. Neuropraxia is the mildest form of nerve injury. Neuropraxia, the most common form of Erb's Palsy is localized to the specific place where the injury occurs. It is a physiologic block of nerve conduction within an axon without any anatomical interruption. Many infants born with brachial plexus palsy have neuropraxia and sometimes recover within 4-6 weeks.

If you are not sure if negligence was involved in your baby's injury call my office. We will investigate the cause for you and provide those answers at no cost to you. 1-888-760-7339.

Maryland Personal Injury The Damage Cap

Maryland has long ago placed a cap on the amount of non economic damages a person can receive in compensation for injury. Since its inception the cap has been the center of great debate initiated primarily by the plaintiff aggrieved by the harsh reduction of his/her judgment. Some argue the cap thwarts justice. Once the jury has spoken and entered a judgment shouldn't that judgment be honored? Others argue the cap is needed to contain cost to the general public. Ultimately the cap removes discretion from the fact finder and leaves litigants with an inflexible mathematical boundary. A viable alternative that better serves justice is a post judgment review of the excess award. Not every case should be sustained. I am sure not every case should be reduced. The Maryland Damage cap states in pertinent part:

in any action for damages for personal injury or wrongful death in which the cause of action arises on or after October 1, 1994, an award for noneconomic damages may not exceed $500,000.

(ii) The limitation on noneconomic damages provided under subparagraph (i) of this paragraph shall increase by $15,000 on October 1 of each year beginning on October 1, 1995. The increased amount shall apply to causes of action arising between October 1 of that year and September 30 of the following year, inclusive.

(3)(i) The limitation established under paragraph (2) of this subsection shall apply in a personal injury action to each direct victim of tortious conduct and all persons who claim injury by or through that victim.

(ii) In a wrongful death action in which there are two or more claimants or beneficiaries, an award for noneconomic damages may not exceed 150% of the limitation established under paragraph (2) of this subsection, regardless of the number of claimants or beneficiaries who share in the award.

Closing Arguments on Damages

There is a continuing debate among even seasoned trial attorneys on how to best approach the jury in closing argument on the issue of money. I admit this can be a delicate subject. Maybe even more so in the less then profound cases. In the profound case the injury is obvious and devastating, therefore credible. When asking for money plaintiff's counsel run the risk of sounding greedy. No one likes a greedy lawyer. Worst the impact of that perception can fall upon your client. There are a number of approaches on how to cure this dilemma. And do note that the issue really appears only on the award for pain and suffering and other general damages. Special damages present far less of a problem. These are the product of the actual losses incurred for treatment, lost wages, prescriptions, toeing, repairs, mileage etc. All you need do here is add the numbers. But for the intangible general damages, the rules change. And there are some restrictions on what is or is not permitted in argument. For example, the Golden Rule prohibits arguments which ask the jury to place them selves in the shoes of the plaintiff. Questions like what would you like to receive as compensation are prohibited. One good case on this point is Simmons v Lowery 563 So. 2d 183. In this case during opening statement appellant's counsel asked the jury "to think about what you would pay someone for one day of what you will hear she has to go through and for the rest of her life." The attorney said this as he was explaining that the jury must assess damages. During closing argument the plaintiff's attorney reminded the jury that he had asked them to consider what they would pay for one day of the plaintiff's situation. At that point, defense counsel objected and requested a mistrial. After rendition of a favorable plaintiff's verdict, defense counsel moved for a new trial contending that the foregoing statements were impermissible golden rule arguments. While the trial court concluded that the statements were improper argument, we hold that they are not.
"A golden rule argument suggests to jurors that they put themselves in the shoes of one of the parties, and is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence." Cummins Alabama, Inc. v. Allbritten, 548 So.2d 258, 263 (Fla. 1st DCA 1989). "To be impermissible, the argument must strike at that sensitive area of financial responsibility and hypothetically request the jury to consider how much they would wish to receive in a similar situation." Shaffer v. Ward, 510 So.2d 602, 603 (Fla. 5th DCA 1987).
Rather than asking the jury what they might wish to receive as compensation themselves, appellant's argument asked the jury to do just what they must do--to determine how much to award or pay the plaintiff for her injuries. Appellant's argument merely asked them to consider this on a per diem basis, which is permissible and has long-standing use in personal injury trials. Rattner v. Arrington, 111 So.2d 82 (Fla. 3d DCA 1959); Perdue v. Watson, 144 So.2d 840 (Fla. 2d DCA 1962). The trial court thus erred in granting a new trial on this basis. See also Leach v. Metzger 241 Md. 533, 217 A.2d 302 MD (1966) which stated Although no Maryland cases have specifically so held, arguments, such as the one apparently made by appellees' counsel, which urge jurors to deal with counsel's clients as they would wish to be dealt with if they were in such client's position, are improper. The vice inherent in such argument is that it invites the jurors to disregard their oaths and to become non-objective viewers of the evidence which has been presented to them, or to go outside that evidence to bring to bear on the issue of damages purely subjective considerations, and resultantly courts in many other jurisdictions have deemed such ‘golden rule’ arguments to be improper.

One acceptable approach in asking for money is the per diem argument. This is essentially time and money. The argument goes like this; the plaintiff suffers this injury every hour of every day for the rest of his/her life. What is it worth per hour multiplied over the life expectancy. The product equals damages for those general damages. It makes sense, but some times when you do the math the product is so astronomical that it is shocking. So it may not be practical in every situation that is less then a profound injury.

Ultimately the law in Maryland states that for damages the jury must determine they are proven by a preponderance of the evidence and are reasonable and are not speculative. The jury is permitted to consider the health and condition of the plaintiff before and after the accident, the permanent nature of the injury, the disability resulting from the injury, the extent to which the injury impacts employments, and other activities, as well as physical pain and mental suffering and then allow a monetary award that is fair and just to compensate Adams v Benson 208 Md 261. As such evidence of depression following injury is evidence of mental suffering, pain medication is evidence of mental suffering as mental suffering naturally follows the existence of physical pain. See Timmons 133 A 322. For more information visit http://www.marylandinjuryattorney.net

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Proof Of Loss Earning Capacity In a Self Employed Situation

Loss earning capacity refers to those situations where the plaintiff has suffered a permanent injury which prevents him from earning the same income he had prior to the injury. It is not an issue of loss future wages. It is an issue of loss earning capacity. And oddly, in a Maryland personal injury case, you can get the damages in a self employed situation even when there is no history of income earnings. See ANDERSON, et al.v. LITZENBERG 694 A.2d 150 (1997). I suggest the necessary proof is as follows: (1) proof of permanent injury as established by a doctor's testimony who is familiar with the physical demands of the Plaintiff's prior employment the current physical limitations; (2) testimony from a vocational rehab expert as to the value of the services the plaintiff was performing prior to the injury as compared to the value of the services the plaintiff is capable of performing with his new physical limitations; (3) an economist to testify to the present value of the loss future earning capacity and the Plaintiff's work life expectancy.

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Pre-Existing Conditions and Damages

Yep here we go again. Plaintiff with a pre-existing condition gets into rear end accident. Plaintiff says you are responsible for my subsequent surgery. Defendant says we did'n't do nutin, ya'll had dat conditin prior too da axel dent. Wrong high insurance premium breath. Take me as I am and love me with all my susceptible body parts. You think I aggravate you well guess what you aggravate me and my pre-existing condin tin too. See MPJI 10.3 SUSCEPTIBILITY TO INJURY The effect that an injury might have upon a particular person depends upon the susceptibility to injury of the plaintiff. In other words, the fact that the injury would have been less serious if inflicted upon another person should not affect the amount of damages to which the plaintiff may be entitled. See MPJI 10:4 AGGRAVATION OF PREVIOUS CONDITION A person who had a particular condition before the accident may be awarded damages for the aggravation or worsening of that condition. And just to mention all foreseeable consequences. See Empire Reality 305 A 2d. 144 (1973). I ma comin ta geet ya boz and hidden hind dem pre-sistin arguments ain't stoppin me no wayza.

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