Lead Poisoning Rates Remain Steady2,622 youngsters up to age 6 were found to have harmful levels of lead in their blood last year, according to an annual report just released by the Maryland Department of the Environment. That's down 4 percent from 2012, though the number of children with seriously elevated lead levels grew slightly, from 364 to 371. Source Baltimore Sun. Landlords are required to ensure there is no peeling, chipping or flaking paint that might be ingested by infants or toddlers.
Introduction into Class Action CasesMarylanders are more familiar with class action litigation than perhaps before given the recent medical malpractice related class actions emanating from area hospitals. First, there was the stent litigation with St. Joseph Medical Center which settled for $37 million dollars and now the eponymous Dr. Nikita Levy class action. In the latter, Dr. Levy is alleged to have violated the privacy of his female patients by videotaping them without their knowledge of consent during medical procedures while he worked for Johns Hopkins.
A. Class Settlement CertificationTo obtain class certification, the plaintiffs must meet several requirements aimed at ensuring that a class action advances the interests of those impacted by alleged harm and does so in a fair manner.
- Numerosity - As to numerosity, the parties have put forth sufficient evidence that the proposed classes will amount to large amount of people and that joinder of all members is impractical.
- Commonality - The named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected.
- Typicality - Usually considered along with commonality. The harm and claims suffered the by the class are similar and thus the class representative can adequately protect the rest of the members.
- Adequacy of representation - This goes the ability and experience of the lead attorneys representing the class as well ensuring the class representative's interest reflect those of the other class members.
- That “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
B. Approving a Settlement
- What was the posture of the case at the time settlement was proposed
- How much discovery was completed
- Circumstances surrounding the negotiations
- Counsel's experience in class action litigation - there are specialists as you can imagine who command top dollar for handling class action litigation which can last for what seems like a lifetime in complex cases.
- How strong is the plaintiffs’ case
- Difficulty in proving an essential part of the case or overcoming a potential defense if the case goes to trial t
- the anticipated duration and expense of trial
- Are the defendant in a financial position to pay a judgment
- Is there substantial opposition to the settlement.
Attorneys’ Fees and Other Expenses are Subject to Court ApprovalOnce the Class Settlement Agreement is approved, the Court must render a ruling on Class Counsel’s request for attorneys’ fees and reimbursement of expenses.
A. Methods of Fee CalculationThere are two primary methods of calculating attorneys’ fees:
- Lodestar method
- Time and labor expended
- Novelty and difficulty of the questions raised
- the skill required to handle the case
- the attorneys’ opportunity costs inpressing the instant litigation
- the customary fee for like work
- the attorneys’ expectations at the outset of the litigation
- the time limitations imposed by the client or circumstances
- the amount in controversy and the results obtained
- the experience, reputation and ability of the attorney
- the undesirability of the case within the legal community in which the suit arose
- the nature and length of the professional relationship between attorney and client;
- attorneys’ fees awards in similar cases.
ConclusionAs you can see, class actions are a completely different type of case and often requires a significant investment of resources to obtain a fair settlement or win at trial. Class actions offer the average joe an opportunity to right wrongs that on his own might be economically unfeasible by spreading the risk among thousands or more claimants. Taking on a big car company like GM may not be practical for a consumer who vehicle has diminished value due manufacturing defects, but combine ten thousand claimants and you are more likely to get GM's attention. Class actions also help conserve resources for our judicial system by addressing similar claims in an orderly fashion instead of taking each case separately. Imagine the Maryland Courts had to consider claims from Dr. Levy one at a time. The courts may not have time for much else. It would take that much longer to get a hearing on other cases.
A 43-year-old man was killed Saturday night when he was hit by a car in Edgewood, the sheriff's office said.The accident happened on the 1700 block of Trimble Road. The pedestrian was walking along Trimble Road when he was hit by a dark colored Ford Explorer, according to a press release from the sheriff's office.
In another incident, a young man was killed in a three car accident.Read more: http://www.baltimoresun.com/news/maryland/harford/fallston-joppa/ph-ag-edgewood-pedestrian-fatal-0917,0,4516051.story#ixzz3DQRZcrPc
Product Liability - Requirements of Successful ClaimIn order to recover under a strict liability theory, Plaintiffs must show that: (1) The product was in a defective condition at the time it left the possession or control of the seller; (2) The product was unreasonably dangerous to the user or consumer; (3) The product was expected to and did reach the user or consumer without substantial change in its condition; and (4) The defect was the cause of his injuries. The elements of a negligence action in the products liability context are essentially the same, except that in a negligence action the plaintiff must show a breach of a duty of care by the defendant, while in a strict liability context the plaintiff must show that the product was unreasonably dangerous. Polansky v. Ryobi America Corp., 760 F. Supp. 85, 87 (D. Md. 1991) (applying Maryland law).
- Defective as it left seller - Plaintiff must show that the defect existed while the product was under the sellers control. For example, GM's problematic ignition switches can be show to have being defective from the point they were installed in GM vehicles under its control.
- No substantial change in product - Plaintiff must show that the product was received in its original condition without modifications.
- Damages - Plaintiff must show that but for the product he or she would not have suffered injuries and other issues
- Defective condition can be show in one of three ways:
- Defect in the manufacturing process
- Defective design
- that the product when used as intended is is inherently dangerous
Hearsay Exception for Medical Diagnosis and Treatment StatementsA significant part of my work as a personal injury attorney in Baltimore is to review and parse out information from my clients medical records. These medical records are a crucial part of any personal injury claim especially where there has been significant injuries or there was pre-existing conditions. With that in mind, these records can become battle grounds both before and during litigation. One area of contention regards the admissibility of part or all of the medical records. A common objection is based on allegations of hearsay. Hearsay is a statement made outside of the current trial that is offered in evidence to prove the truth of the issue contained in the statement and is generally inadmissible in federal court. Fed. R. Evid. 801(c); id. 802. Hearsay includes spoken, written or non verbal conduct. Id. 801(a).
A. Medical Treatment ExceptionAs stated above, hearsay is inadmissible, but there are plenty of statements that are hearsay that are essential to achieving justice in a case. As a result, the law has created over twenty different exceptions to the hearsay rule. One key exception for personal injury plaintiffs is Under Rule 803(4) which states that a statement that "is made for—and is reasonably pertinent to— medical diagnosis or treatment” and that “describes medical history; past or present symptoms or sensations; their inception; or their general cause” is not “excluded by the rule against hearsay.”Id. 803(4). The premise here is that someone seeking medical treatment is more likely than not to tell the truth because his or her well being depends on it. To be admissible under Rule 803(4) a statement must undergo a two-part test: “‘(1) the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and, (2) the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.’” Willingham, 412 F.3d at 562 (quoting Morgan v. Foretich, 846 F.2d 941, 949 (4th Cir. 1988)). Under part one, injury victims like any other patients must be able to express what they are experiencing in terms symptoms or sensations and as long as those are necessary for a doctor to make a diagnosis then they pass muster. Accident victims can also talk about what caused injuries such as stating the other vehicle struck the driver side door. But, if a personal injury victim's statements go beyond seeking treatment such as stating the other driver failed to stop at the stop violate this rule because they assign fault and become in admissible. Ramrattan v.Burger King Corp., 656 F. Supp. 522, 530 (D. Md. 1987).
Business Records ExceptionAnother important exception for medical records is the business records exception in Federal Rule of Evidence 803 which provides that, “regardless of whether the declarant is available as a witness,” certain records of a regularly conducted activity “are not excluded by the rule against hearsay.” Fed. R. Evid. 803(6). To qualify as a business record, the record must:
- It was made at or near the time by—or from information transmitted by—someone with knowledge.
- It is kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit.
- It was made a part of a regular practice.
- Testimony by a custodian or qualified witness or certification is required as the first three elements.
- Both the method of preparation and source must be trustworthy.