Maryland Accident Law Blog

Filing a Maryland Injury Claim Based on a Product Recall

August 13, 2020 | Lebowitz & Mzhen

A product recall is not a prerequisite to filing and winning a Maryland product liability claim. Yet, product recalls are often a precursor to litigation against the seller, because a recall is an indication that the product is not safe for its intended use. If a product is recalled because it is not safe for its intended use, the agency that called for a recall will offer a remedy for consumers affected by the recall. A consumer can still file a suit against the manufacturer, distributor, and often retailer of the unsafe product.

A government agency can suggest or require a company recall its product, but the company itself has to follow through and issue the recall itself. In some cases, an agency may issue a voluntary recall, and the offending company is left to decide whether to issue a recall. In other cases, an agency may issue a mandatory recall, and the offending company is required to issue a recall.

In a strict liability case, the plaintiff has to show in general that the defendant’s product was defective and that the defect caused the plaintiff’s injuries. Unlike in a negligence case, in a strict liability case the plaintiff does not need to show that the defendant was negligent in some way but rather focus on the defective product. In the case of a misrepresentation related to a product, a potential plaintiff may be able to recover damages if the plaintiff relied on the misrepresentation and is harmed by the misrepresentation. A product must also adequately warn about potential dangers and risks inherent in a product and provide consumers with information about the correct use of the product if necessary.

What Is Res Ipsa Loquitur and When Can It Be Used in Maryland Accident Cases?

August 5, 2020 | Lebowitz & Mzhen

There are certain personal injury cases where there is no specific evidence tying the defendant to the accident, but it is clear that the defendant caused the accident and should be held liable. In these instances, the doctrine of res ipsa loquitur can often be utilized. Res ipsa loquitur is Latin for the “thing speaks for itself” and allows a jury to infer the defendant’s negligence without needing direct evidence. While not often used, res ipsa loquitor can be extremely beneficial to help Maryland plaintiffs recover for their injuries, who might not be able to so otherwise.

In a recent state appellate case, a plaintiff was injured leaving his doctor’s office. Stepping onto the elevator, the plaintiff did not notice the floor of the elevator was two feet below the landing. The plaintiff sued the property owner, arguing the owner was negligent by not fixing the elevator. Among other claims, he argued the defendant was liable under the doctrine of res ipsa loquitur. Although the defendant had sole control over the elevator, and was in charge of its maintenance, the court granted summary judgment for the defendant. During the appeal, the plaintiff chose not to raise the issue of res ipsa loquitor, meaning a jury would not hear this claim.

When a plaintiff asserts res ipsa loquitor in a Maryland personal injury case, they are claiming that negligence may be presumed from the circumstances of the accident. Unlike a traditional negligence claim, a plaintiff relying on res ipsa loquitor does not need to establish the traditional requirements of negligence, nor do they need to provide direct evidence linking the defendant to the accident.

What Constitutes a Design Defect in a Maryland Product Liability Case?

July 28, 2020 | Lebowitz & Mzhen

Individuals pursuing a product liability case in Maryland courts can bring their claim under one or more of the three types of Maryland product liability claims: manufacturing defects, design defects, and warning defects. Under Maryland law, a design defect case considers whether a manufacturer knew the risks inherent in the product and unreasonably put the product on the market despite the risk. This may mean, for example, that a product malfunctions due to its design or that it lacked a reasonable safety device. A design defect focuses on the risks and benefits of the product’s design and on the specifications for constructing a product.

A recent case before another state’s appeals court considered whether a rat was a product under strict liability law. In that case, a 10-year-old boy purchased a rat from a Petco store. Two weeks after the 10-year-old purchased the rat, he fell ill. He was taken to the hospital and died shortly after he arrived. It was later revealed that the boy contracted a rare bacterial infection — rat bite fever (RBF) — from the rat he had purchased at Petco and he died from complications related to the infection. The boy’s father filed a claim against Petco, alleging in part that the store was strictly liable for his son’s death. The man argued that the rat was a defective product and that Petco was liable under a strict products liability theory.

The appeals court held that a live pet animal sold in its unaltered state was not a “product” subject to the design defect consumer expectations theory. According to the evidence presented at trial, 10 to 100 percent of wild rats carry the bacteria streptobacillus moniliformis, the bacteria that causes the infection in humans. The court stated that a rat carrying streptobacillus moniliformis is not in a diseased condition (which would be the defect in this case), because the infection that the boy developed is developed by some humans after exposure to streptobacillus moniliformis. Thus, the court reasoned that the rat could not be a defective product. It further explained that in a design defect case there must be a “design” of the product, and that in this case, pet rats living in their natural state are not “designed.” Therefore, the rat living in its unaltered state could not be a product subject to a design defect theory. The court also reasoned that the store could not have prevented the defect because the animal was living in its natural state free from disease. The court noted that, although it rejected the design defect claim, the plaintiff could file claims of negligence, negligent warning, and warning and manufacturing strict liability causes of action.

How Courts Deal with Obvious Hazards in Maryland Slip and Fall Cases

July 21, 2020 | Lebowitz & Mzhen

A state supreme court was recently tasked with deciding whether the owner of a church could be held liable after the plaintiff was injured on the stairs outside of the building. While Maryland landowners often have to warn visitors of any danger, they do not need to if the dangerous condition was an open and obvious hazard that a reasonable person would recognize. Ultimately, the court concluded that the dangerous condition was open and obvious, and the church owner was not liable for the plaintiff’s injury under a premise liability theory.

According to the court’s opinion, the plaintiff was hurt while carrying a casket down the church’s outdoor steps. Although the plaintiff had previously used these steps, he tripped near the top, falling into the church building and injuring himself.

While landowners generally have a duty to keep their property safe, in Maryland, they do not need to warn others if the hazard is “open and obvious” to a reasonable person. When the dangerous condition is open and obvious, the landowner cannot be held liable under a premise liability theory. In this case, the court needed to determine whether the top step outside of the church was an open and obvious hazard that a reasonable person would have taken appropriate care to avoid. The court noted that the set of stairs the plaintiff tripped on had five steps, with the top step an additional four inches higher than the others. Additionally, the top step was composed of red bricks while the other steps were made of gray concrete. Finally, the court took note of the fact that the plaintiff walked down the stairs a few minutes before the accident. Because of these factors, the court concluded that the differences between the top step and the other four would be readily apparent to most people.

Could Jury Misconduct Overturn A Favorable Verdict in Maryland Accident Cases?

July 14, 2020 | Lebowitz & Mzhen

Personal injury suits are incredibly important for those who injured in a Maryland accident. The lawsuits can help to ensure that those hurt get compensated for their medical bills, future care needs, lost wages, and more. While many Maryland personal injury cases settle before trial, some will go to trial. However, a recent state appellate case illustrates that obtaining a favorable jury verdict may not be the end of the case—sometimes, a losing party can appeal and request a new trial if they believe there was a legal error in the trial.

According to the court’s written opinion, the case arose from a tragic accident in a daycare facility. In September of 2015, an unsecured television fell onto the victim—who was not yet two years old—while he was sleeping at the daycare facility. Part of his skull was crushed, and he was put on a ventilator for nine days. Years later, the victim continues to suffer from severe developmental issues. At five years old, he could not talk or control his bowel movements and frequently had mood swings, fits, and outbursts. It was believed that he would need 24-hour-care for the rest of his life. Because of the severe injuries, the victim’s parents filed suit against the daycare, alleging negligence in their care.

The parents won the case in the trial court, and were awarded $30.3 million in damages. However, the defendants appealed, asking for a new trial. Evidently, there had been an instance of jury misconduct during the original deliberations, and the defendants believed that it was significant enough to demand a new trial. According to the court, the misconduct occurred when one juror used his cellphone to google the meaning of a word that came up in conversation. The specific word was not disclosed in the record. The trial court investigated the incident, asking each juror what happened, if they were aware, and if it affected their decision in the case. By law, the jury is not allowed to search for or consider any additional information other than what was offered during the trial, so this incident could have resulted in a new trial.

How the Common Law Exception May Affect Maryland Medical Malpractice Claims

July 7, 2020 | Lebowitz & Mzhen

On this blog, we talk about a wide variety of Maryland accidents, including slip and falls, car accidents and medical malpractice cases. The general premise behind all Maryland personal injury lawsuits is the same: state law allows those injured due to someone else’s negligence to recover financially by bringing a personal injury lawsuit against the negligent parties. However, it is important to keep in mind that different types of personal injury lawsuits may be grounded in the same basic idea but subject to very different procedural requirements. This is especially true for medical malpractice cases. Failure to follow the proper requirements could result in a plaintiff’s Maryland medical malpractice suit being thrown out, even if it would otherwise have been a winning case.

For example, take a recent state supreme court case which considered the procedural requirements for filing a medical malpractice suit. The case arose when the plaintiff sued a spa and its employee after allegedly being sexually assaulted during her massage in April of 2014. The plaintiff sued the spa (the massage therapist’s employer) for negligence in the training, supervision, and retention of the massage therapist. The defendant spa, in response, filed a motion for summary judgment. The spa argued that the plaintiff had not met the procedural requirements for filing a medical malpractice suit, since they had not filed the required certificate of good faith with the complaint. The question before the court was whether the common knowledge exception to the requirement applied—whether laypersons, using their common knowledge and without expert testimony, could decide whether the spa was negligent. If so, then the certificate was not needed because the case would not be subject to the requirement. If not, then the certificate was needed to file suit and the plaintiff’s suit must be dismissed. The common knowledge exception is common in many states, including Maryland.

The state supreme court ultimately determined that the common knowledge exception applied because no expert testimony was needed to decide this case. The court noted that the plaintiff was not claiming that the massage therapist negligently performed the massage, used improper technique, used excessive force, or anything of that nature. As such, no expert testimony was needed on the proper standard of care for massage therapists, force to be applied, or techniques. The question is one of sexual assault—which does not involve the technical or specialized knowledge of a medical professional. As such, the defendant’s motion for summary judgment had to be denied, and thus the plaintiff could move forward with her claim.

Introducing Expert Testimony in Maryland Injury Cases

June 25, 2020 | Lebowitz & Mzhen

Expert testimony is essential in many Maryland car accident cases. Under Maryland law, expert testimony may be admissible if the court rules that the expert testimony will help the trier of fact to understand the evidence or to decide a fact at issue in the case. Under Rule 5-702, a court must decide whether the witness is qualified as an expert based on the witness’s knowledge, experience, education, skill, or training, whether the expert testimony is appropriate, and whether there is a sufficient factual basis for the testimony.

Expert testimony is essential in cases where an issue is beyond the “common knowledge” of a layperson. One recent decision from a federal court of appeals shows a trial court’s improper exclusion of expert testimony doomed a plaintiff’s case, resulting in a judgment in favor of the defendants.

In that case, the plaintiff was hit by an SUV in a construction-affected area. The defendant, an architectural firm, was hired to redesign traffic in the area to safely control the traffic of vehicles and pedestrians in the area. A construction company installed a temporary concrete barrier along one part of the sidewalk. The pedestrian was crossing the street in the area and was hit head-on by a vehicle, rendering him a quadriplegic. The plaintiff filed suit against entities involved in the construction project, including the architectural firm.

The Procedural Hurdles in Maryland Medical Malpractice Cases

June 19, 2020 | Lebowitz & Mzhen

Most people know that when someone is injured in a Maryland accident of any kind, state law allows them to file a lawsuit against the negligent party. These personal injury suits can arise from car accidents, defective products, slip and fall accidents, or even dog bites. One type of claim is called a medical malpractice lawsuit, which arises from negligence on the part of a medical professional. For instance, if a surgery goes poorly because the surgeon was reckless, or if a medical professional fails to follow safety protocol when administering medication, they may be held liable in a medical malpractice lawsuit. These claims, however, can sometimes be more procedurally complicated, which can create barriers for plaintiffs if they do not follow procedural requirements carefully.

For example, take a recent state appellate case concerning the procedural requirements for filing a medical malpractice suit. According to the court’s written opinion, the plaintiff was the personal representative of the deceased’s estate. The deceased was in treatment at a hospital and receiving seven medications when she was transferred to a residential treatment facility. The hospital provided the treatment facility with the prescriptions for the medications, but not the medications themselves. The facility did not administer any of the drugs, and four days after the transfer, the patient died—allegedly from “a severe withdrawal syndrome.” The plaintiff brought suit against the hospital and the facility, alleging that they were negligent and either knew or should have known that suddenly failing to administer the medications was likely to cause severe withdrawal symptoms, including heart arrhythmias and seizures that could lead to her death.

In response, the defendants filed a motion to dismiss the plaintiff’s complaint for failing to comply with the requirements of a medical malpractice action. Many states have specific procedural requirements that a plaintiff must meet to file a medical malpractice suit. The defendants argued that the plaintiff did not meet these requirements, but the plaintiff in response argued that they did not need to meet these requirements because they were filing a claim for ordinary negligence, not medical malpractice. The trial judge denied the motion to dismiss, agreeing with the plaintiff that the complaint could be for ordinary negligence. On appeal, however, the appellate court reversed. The court found that a medical malpractice suit is one that arises from an act directly related to medical care or services, and that required the use of professional judgment or skill. In this case, the plaintiff’s claims clearly arose from such acts—the failure to render medical care or services. Because the court found that the claim was a medical malpractice one, and not an ordinary negligence one, the plaintiff was required to conform to other procedural requirements. The motion to dismiss was thus granted, since the plaintiff failed to do so.

Vicarious Liability in Maryland Medical Malpractice Cases

June 11, 2020 | Lebowitz & Mzhen

In a Maryland malpractice case, a plaintiff may be able to bring a suit against a provider’s employer under the doctrine of respondeat superior, or vicarious liability. Vicarious liability allows an employer to be held liable for the acts of its employees, even without any fault on the part of the employer. Rather, the employer may be held liable based solely only on the employer-employee relationship. Generally, an employer may be held liable for the wrongful acts of an employee if the employee is acting in the scope of their employment. The doctrine is intended to hold employers accountable and because many times they can bear the financial burden better than an individual employee.

A state court recently heard a medical malpractice case involving the alleged vicarious liability of two different employers. In that case, the plaintiff underwent laparoscopic abdominal surgery at a hospital. She was admitted to the hospital after the surgery and her condition deteriorated. A second surgery was conducted, during which time they discovered a perforation in the plaintiff’s small bowel. She suffered catastrophic injuries that required her to undergo multiple surgeries and to be hospitalized for five months.

The plaintiff filed a medical malpractice lawsuit against the surgeon, the hospital, and the university that employed the surgeon. The plaintiff argued that the surgeon had perforated her small bowel during the first surgery, and that the staff failed to timely diagnose her condition and begin treatment. The university argued that the surgeon did not deviate from the standard of care during the surgery. It also argued that even if the surgeon did deviate from the standard of care, the plaintiff’s injuries were a result of the hospital staff’s failure to timely administer antibiotics.

Limitations on a Maryland Landowners’ Liability During Recreational or Educational Activities

June 5, 2020 | Lebowitz & Mzhen

Generally, landowners owe a duty of care to people who come on their land, the extent of which depends on the relationship between the parties and the circumstances of the incident. Maryland’s Recreational Use Statute is an exception in that, when the statute applies, a landowner owes no duty of care to others, allowing them to escape liability in a Maryland premises liability case.

A recent case is an example of how landowners may avoid liability in such cases. In that case, a woman was injured while she was attending a free concert at a university. As she had been leaving the concert, she fell on a staircase with no handrails. She sustained serious injuries and died as a result. Her estate and her children filed a wrongful death claim against the university.

The university claimed that it was immune from suit under the state’s Recreational Property Act. Under the state’s law, a landowner does not have a duty to keep premises safe if others are using the land for recreational purposes. The concert took place at a county park, but the university had a permit to use it for the concert series. The woman’s family agreed that attending the free concert was a recreational activity. However, the family argued that the purpose of the concert series was mostly commercial. They noted that there were food and drinks available for purchase, that sponsors had tents and logos, and that it provided the university with a branding opportunity.