Maryland Accident Law Blog

Maryland Supreme Court Reconsiders Contributory Negligence Doctrine

September 23, 2012 | Lebowitz & Mzhen

An injury caused by a collapsed soccer goal has led the Maryland Supreme Court to reconsider the state’s longstanding doctrine of contributory negligence. Four states and the District of Columbia still follow this doctrine, which holds that plaintiffs may not recover damages in a lawsuit if their own negligence contributed to the accident or loss in any way, no matter how minimal. In Coleman v. Soccer Assoc. of Columbia, et al (Md., Sept. Term 2012, No. 9), the state Supreme Court is considering whether it should follow most U.S. states in adopting the doctrine of comparative negligence. This legal doctrine allows a plaintiff to recover, but reduces damages based on an apportionment of the plaintiff’s negligence.

Kyle Coleman, twenty years-old at the time, was attending a soccer practice at Lime-Kiln Middle School in Fulton, Maryland in 2008. As he went to retrieve a ball from the goal, he grabbed the crossbar. This apparently caused the crossbar to collapse, hitting Coleman in the face and crushing several ocular bones. He now has three titanium plates in his skull.

Coleman sued the Soccer Association of Columbia, which was responsible for the practice where his injury occurred. He alleged that it breached its duty to maintain the goal properly. A jury found that the association was negligent in failing to secure the goal, but it also found that Coleman was partly negligent. The contributory negligence doctrine therefore barred him from relief.

Man Sentenced to More than Two Years in Prison for Fatal Drunk Driving Crash

September 18, 2012 | Lebowitz & Mzhen

After pleading guilty to charges of drunk driving, a Vermont man received a two-and-a-half-year prison sentence in late August. One passenger died in the automobile accident that led to the criminal charges, in which the man was allegedly driving with more than twice the legal blood alcohol level.

The accident occurred at about 1:00 a.m. on October 2, 2011, when a car driven by 23 year-old Derek Seber, a Maryland resident attending Norwich University, ran off a road in Northfield, Vermont and crashed into the trees. Witnesses said they saw a car speed past them at fifty to sixty miles per hour. The posted speed limit at the turn where the crash occurred was thirty-five miles per hour. The car, an Acura 4S sedan, was carrying seven passengers in addition to Seber. A passenger in the front seat, an eighteen year-old Norwich freshman, was sitting in another passenger’s lap with no seatbelt. She sustained fatal injuries in the crash. Three other passengers suffered critical injuries.

NTSB Investigates Maryland Freight Train Derailment that Killed Two

September 13, 2012 | Lebowitz & Mzhen

The National Transportation Safety Board (NTSB) is investigating the derailment of a freight train, which occurred in Ellicott City, Maryland on the night of Monday, August 20, 2012. Two teenagers who were sitting near the tracks died as a result of the derailment. The accident left train cars and coal strewn over a wide area. A preliminary report from the NTSB describes the basic timeline of the derailment, but the actual cause may not be known for some time.

According to the NTSB’s preliminary report, an eastbound freight train, operated by CSX Transportation and traveling on the CSX Old Main Line Subdivision through Ellicott City, derailed at about 11:56 p.m. on August 20. The train consisted of two locomotives and eighty freight cars carrying coal, traveling at the maximum approved speed of twenty-five miles per hour. The twenty-one lead cars derailed. Six of those cars fell about fifteen feet from the railroad bridge into a public parking area on the north side of the track. The other fifteen cars overturned and spilled their cargo. Witnesses said the coal on the ground was up to a foot deep.

Maryland Court of Special Appeals Dismisses Medical Malpractice Case Due to Lack of Qualified Expert

September 1, 2012 | Lebowitz & Mzhen

A trial court dismissed a man’s medical malpractice suit against three doctors, ruling that he did not file a certificate of qualified expert (“Certificate”) that comported with state law. The plaintiff in Hinebaugh v. Garrett County Memorial Hospital, et al appealed on both the substance of the dismissal and on the question of whether the court could dismiss the suit before the parties had conducted any discovery. The Maryland Court of Special Appeals affirmed the dismissal, finding that the plaintiff’s Certificate was inadequate, and that formal discovery was not necessary for the plaintiff to meet the statutory requirements for qualifying an expert witness.

The plaintiff sustained injuries to his left cheek and jaw on August 12, 2006 after being hit in the face when he was a 22 year-old inmate in a local jail. He was first seen by Dr. P. Daniel Miller, an osteopath practicing family medicine, who ordered simple x-rays of his facial bones. Dr. Miller and two radiologists, Drs. H. Stan Lambert and James K. Benjamin, examined the x-rays and reportedly found no “radiographic abnormalities.”

After the plaintiff was released from jail, he went to a different doctor on August 27. That doctor ordered a maxillofacial CT scan and found a “left supraorbital fracture with displacement.” He referred the plaintiff to an Oral and Maxillofacial Surgeon (OMS). The plaintiff eventually underwent surgery on his cheek and jaw.

The plaintiff filed a claim in the state’s Health Care ADR Office in August 2009 against Drs. Miller, Lambert, and Benjamin. He alleged various breaches of the doctors’ standards of care, including failure to order a CT scan or consult with specialists. He claimed that these breaches caused him to need “extensive intrusive surgical procedures” and sought compensation for medical expenses, past and future lost wages, and pain and suffering. The plaintiff filed a Certificate and a report by John Mitcherling, D.D.S., identifying him as an OMS specialist with at least five years’ clinical experience similar to that of the three respondent doctors. Dr. Mitcherling stated an opinion that the doctors had breached various standards of care by failing to perform certain diagnostic tests.

Maryland Court of Appeals Affirms Judgment Giving State Jurisdiction Over Football Player’s Workers’ Compensation Claim

August 27, 2012 | Lebowitz & Mzhen

In a suit brought by a professional football team and its insurer challenging a decision by the Maryland Workers’ Compensation Commission (the “Commission”), the Maryland Court of Appeals has ruled in favor of a former football player who sustained career-ending injuries during a game. The court ruled in Pro-Football, Inc. v. Tupa that the Commission has jurisdiction over the player’s claim, that his injuries were “accidental,” and that he is therefore eligible for compensation under the Maryland Workers’ Compensation Act.

Thomas Tupa entered into a four-year contract in March 2004 with Pro-Football, Inc., which operates the Washington Redskins professional football team. Tupa would play the punter position on the team. Pro-Football is a Maryland corporation that owns the stadium where the team plays its home games, FedEx Field in Landover, Maryland. The teams practice and warm-up facilities are located in Virginia. Tupa’s contract includes a clause that gives the Commonwealth of Virginia and the Virginia Workers’ Compensation Commission jurisdiction over disputes between the parties.

Two Wrong-Way Crashes on Maryland Highway Linked to Exit Ramp

August 20, 2012 | Lebowitz & Mzhen

Interstate 97 stretches just under eighteen miles between Annapolis and Baltimore. Exit 10B on the northbound side of the highway feeds onto Veterans Highway in Millersville. It is also the point where a driver entered the wrong side of the highway in January 2012, resulting in a head-on collision that killed four people. A second fatal wrong-way collision in the same area caused Maryland safety officials to consider whether the exit ramp poses a danger because it can be mistaken for an on-ramp. While they maintain that driver error caused both crashes, these cases demonstrate the role that road signs and highway markings can play in preventing accidents.

The first accident occurred in the early morning of January 28, 2012. A nineteen year-old driver turned off of Veterans Highway onto what she apparently thought was the ramp to the southbound lanes of I-97, but was actually the exit from the northbound lanes. She drove south for over nine miles before colliding head-first with a vehicle traveling north at about 3:30 a.m. She and the three occupants of the other vehicle died in the crash. Toxicology reports showed that both drivers were intoxicated. The Maryland State Highway Administration (SHA) concluded at the time that alcohol was the principal cause for the driver’s error.

Federal Lawsuit Alleges Police Brutality; Local DA Declines to Prosecute Officers

August 13, 2012 | Lebowitz & Mzhen

A federal lawsuit claims that multiple Pennsylvania State Police officers physically and verbally assaulted a man, both during a traffic stop and while he was in police custody. Video from a police cruiser dashboard camera reportedly shows both verbal and physical abuse by troopers, and the man says that police continued to assault him for hours afterwards. The lawsuit claims various violations of constitutional rights and intentional torts against the state police department and certain individual officers.

Police pulled over 31 year-old Robert Leone, a resident of Vestal, New York, on March 8, 2010, on Route 6 in Bradford County, Pennsylvania. Police allege that Leone was involved in a hit and run, that he led them on a chase, and that he was acting “out of control.” Leone denies any involvement in a hit and run accident. Prosecutors later claimed he had high levels of the drug Adderall, a stimulant used to treat attention-deficit disorders, in his system at the time. Dashboard camera footage of the arrest reportedly shows state troopers beating Leone, and Leone says that officers moved him to an area out of the view of the camera to continue the beatings.

Lawsuit Alleges Prison Nurse Denied Emergency Medical Care to Inmate.

August 7, 2012 | Lebowitz & Mzhen

A woman in Minnesota is suing several registered nurses (RNs) over the death of her son, who died while in the custody of the Minnesota Department of Corrections (MDOC). The lawsuit alleges that a nurse employed by the prison withheld emergency medical care from her son, who had a history of seizures, because of “protocols” established by the private contractor hired to provide medical care for the state’s inmates.

Xavius Scullark-Johnson, age 27, was an inmate at the state prison in Rush City, Minnesota with only three months left on his sentence. According to the Minneapolis Star Tribune, the prison has not had 24-hour medical staff since 2002. Doctors, all of whom are employed by health contractor Corizon, Inc., only work Monday through Friday until 4:00 p.m. Nurses at the prison are state employees who work seven days a week, but their shifts end at 10:30 p.m. Corizon and MDOC closely monitor all medical-related expenses, including ambulance trips.

Scullark-Johnson reportedly suffered multiple seizures during the evening of June 28. An on-duty nurse, Linda Andrews, found him on the floor of his cell, “soaked in urine” and “in an altered state of consciousness.” She covered him and left orders to the guards to check on him regularly. Several hours later, a guard called the on-call doctor, Sharyn Barney, informing her that Scullark-Johnson had a seizure the previous evening, and that his cellmate could not wake him. She reportedly advised the guard to monitor him overnight and report his condition to the medical staff in the morning. No one had access to Scullark-Johnson’s medical records at the time because the prison health center was closed for the night. The guard called Barney again several hours later, and the doctor agreed that the guard should call for an ambulance.

Federal Court Denies Class Certification in Medical Products Liability Claim

July 25, 2012 | Lebowitz & Mzhen

A U.S. District Judge in Pittsburgh has denied a plaintiff’s motion to certify a class in a products liability lawsuit. In Haggart v. Endogastric Solutions, Inc., the plaintiff claimed that a medical device manufacturer failed to warn of certain risks associated with a device used to treat his gastroesophageal condition. The court ruled that he failed to demonstrate the prerequisites for class certification, finding that the potential class members did not have the common experiences or interests that would make a class action an efficient way to resolve their claims.

The plaintiff, Daniel Haggard, suffers from gastroesophageal reflux disease (GERD), a condition where stomach contents, including stomach acid, flow back into the esophagus. It causes irritation to the esophagus and conditions like heartburn. He declined a common device used to treat GERD, known as a Nissen Fundoplication, because it required permanent implantation. He opted for a device known a an EsophyX, allegedly based on representations from the manufacturer, defendant Endogastric Solutions, that the procedure is “reversible.”
He had the device implanted in June 2009, but he learned three months later that the device had failed to properly implant. On his doctor’s advice, he went ahead with the Nissen Fundoplication, and he learned that the EsophyX was not “reversible,” but rather “revisable.” The fasteners for the EsophyX were not removable, because tissue had grown around them. This allegedly foreclosed other medical options that might have otherwise been available. After the Nissen Fundoplication, he alleged that his GERD symptoms grew worse.

Woman Sues Police Department and Town Over Shooting of Armed Assailant

July 19, 2012 | Lebowitz & Mzhen

A standoff involving a suspected criminal, his hostage, and a police officer in March 2012 ended with the suspect dead, the hostage rescued, and the officer hailed as a hero. In an unusual twist, the woman who was held hostage that evening has indicated that she plans to sue the New Jersey township where the incident occurred. In a tort claim notice filed in June, she stated that she intends to claim negligence and various breaches of duty against both the township and the police officer involved in the shooting, and to seek monetary damages for injuries she allegedly sustained as a result. Because the township is a government entity, she is legally required to submit a notice of claim to the township before she may file a lawsuit.

During the early evening of Thursday, March 8, 2012, mall security guards and an off-duty police officer working security approached 44 year-old Andres Garcia in the Woodbridge Center shopping mall in Woodbridge, New Jersey. They suspected Garcia of shoplifting. Garcia was also wanted for violating his parole on a robbery conviction. He reportedly fled from the security guards through the mall. At the entrance of the Sears store, Garcia grabbed 62 year-old Ellen Shane, who was shopping with her husband, Ronald Shane. Holding a knife to her throat, Garcia dragged Shane into the store while her husband tried to hold onto her. According to the county prosecutor, the police officer, Edward Barrett, Jr., warned Garcia several times to drop the knife. Garcia reportedly told Barrett he would hurt Shane if Barrett did not allow him to leave. Barrett fired a single shot that struck Garcia in the head. Garcia was pronounced dead at 5:32 p.m. at the scene, with the gunshot later ruled as the cause of death.