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With all due respect to fellow trial lawyer John Edwards, the Democratic race seems to be all about Hillary Clinton and Barack Obama. Regarding tort reform, both seem to be on the side of allowing juries to make the call regarding whether and how much compensation should be awarded. In fact, back in their civil days (as in civil to each other) they co-authored an article in the New England Journal of Medicine, entitled “Making Patient Safety the Centerpiece of Medical Liability Reform.”

Still, I suspect Hillary Clinton is the safer play for trial lawyers. Obama has taken a mild shot at trial lawyers in the past. Campaigning for the Senate in 2004, he was quoted as saying, “Anyone who denies there’s a crisis with medical malpractice is probably a trial lawyer.” But, obviously, taking a shot at medical malpractice lawyers is just smart politics and I don’t think this changes his position that juries should have the authority to determine who gets what without intervention from statutes or anything else.

Perhaps more telling when comparing the two candidates, Senator Obama was among the 18 of 44 democratic senators voting for the Class Action Reform Act. In contrast, Senator Clinton (and Senator Edwards), voted against the Act, believing that it would deny remedies for many in their local state courts.

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The Maryland Lawyer Blog is starting to really sink its teeth into the sperm donor recipients who strike a deal with the donor only to later seek child support. This is our second blog on the issue in as many months.

In this case, the Pennsylvania Supreme Court went into a different direction, ruling that Joel McKiernan, whose sperm donation allowed his former co-worker and girlfriend Ivonne Ferguson to give birth to twin boys in August 1994, does not have to make monthly child support payments or pay thousands of dollars in back support to help support the now 13-year-old boys. McKiernan donated his sperm to his former girlfriend in 1993 with the understanding that he would have no legal rights to the children and would not have to pay any child support. However, it appears that this agreement was never put in writing, and in 1999, Ferguson sued McKiernan for child support.

The trial judge ruled that McKiernan must pay $66,000 in back support and make monthly payments of $1,500, despite strongly disagreeing with Ms. Ferguson’s decision to renege on her original agreement. The Supreme Court overturned this earlier decision, stating that although ruling in favor of Mr. McKiernan would deny the boys additional support, they would not have been born had Ms. Ferguson not agreed that Mr. McKiernan would not be financially responsible for the children.

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Honorable J. Michael Wachs has been appointed to fill the Anne Arundel Circuit Court vacancy resulting from the retirement of the Honorable Joseph P. Manck.

I have only been in front of Judge Wachs once but he has a great judicial temperament and is very well thought of in Anne Arundel County. He should be a great addition to the Anne Arundel County Circuit Court bench.

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A new Jury Verdict Research study based on data from the past ten years offers information on plaintiffs’ recovery in phantom auto accident cases. Phantom cases are generally uninsured motorist cases where there is no contact between the negligent driver’s car the injury victim. In most phantom cases, the defendant’s vehicle is unidentified (thus the nickname “phantom”). In these auto accidents, the plaintiff almost invariably must make an evasive move because of the defendant’s negligent driving and is either forced off the road or into another vehicle or object as a result.

The recent study shows not only that 51 percent of these plaintiffs receive an award, but it also breaks down where on the spectrum the values of the awards fall. Nearly one-half of the damages awarded in these cases fall somewhere between $10,000 to $100,000, with one-quarter of the cases winning awards between $10,000 and $25,000. Although most cases fall somewhere in the middle, there is a substantial number that falls into one of the two extremes. While 11 percent of all no contact cases were awarded less than $2,500, 8 percent received damages exceeding a quarter of a million dollars. The study goes farther than offering just the award median ($21,441) and provides a more useful breakdown of the plaintiffs’ recovery in these types of cases.

Phantom auto accident cases are tough and easy for the plaintiffs’ lawyer at the same time. The best part is there is rarely a witness to refute the plaintiff. The tough part is there are a lot of single-car accidents and every single car accident without a witness can potentially be fabricated into a phantom accident case. In the end, the entire trial becomes about the plaintiff’s credibility.

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On Tuesday, the Court of Appeals, in a 4 to 3 majority, declined an attempt to legalize gay marriage. The majority did, however, underscore the legislature’s authority to choose to legalize same-sex marriage.

The Court reversed Baltimore City Circuit Court Judge Brooke Murdock’s decision which found that the marriage statute, Family Law Article 2-201, which defined marriage as between a man and a woman was unconstitutional because it discriminated based on gender, thereby violating the Equal Rights amendment.

The opinion contained a partial concurrence/dissent and two dissenting opinions, one by Chief Judge Robert Bell. The majority held that the Equal Rights Amendment was not violated because the law discriminates equally between men and women who wished to engage in same-sex marriage (as opposed to only one of the sexes not being able to marry). This is a brilliant application of the law or the twisting of logic to get to the result the Court wanted to reach. I cannot decide. Either way, the ball is still in the hands of the Maryland legislature.

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Digging through my miscellaneous files today (an incredible hodgepodge), I found a Metro Verdicts Monthly reporting on median settlements and verdicts in employment discrimination cases in Maryland, Washington, D.C., and Virginia. Washington D.C. leads this pack at $206,000. Virginia’s median is $150,000 while Maryland lags at $117,000.

While the categories vary from jurisdiction to jurisdiction, employment discrimination is when an employer discriminates based on gender, religion, age, race, gender, sexual orientation, or disability.

With the baby boomers coming of age, the next hot area for employment lawyers in Maryland will be age discrimination. Between 1997 and 2003, age discrimination plaintiffs recovered $262,405 from juries, more than did any other protected group, according to Employment Practices Liability: Jury Trends and Statistics, a study conducted by Jury Verdict Research.

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Two recent medical malpractice cases regarding emergency room physicians raise the question of who should a patient trust for their ultimate diagnosis after an emergency room visit.

The first case involves a woman who was awarded $10 million for the death of her 73-year-old husband whose premature death she claimed resulted from the negligent treatment of an emergency room physician for failing to administer anti-clotting medication for over 2 hours after he presented to the ER suffering a heart attack in 2003. However, her husband lived 3 more years after this ER visit and had a heart transplant in 2006. His immediate cause of death was an infection he got a month after the transplant (a known and common risk with all transplants).

The second case involves a jury verdict of $5 million dollars to the family of a man who died from an aortic rupture, which was undetected by an emergency room physician. The 30-year-old decedent presented to the Swedish Medical Center in Washington and was prescribed heartburn medication and sent home. Two days later, he went to the University of Washington emergency room and an aortic tear was diagnosed and he died shortly thereafter of a heart infection. Evidence was presented that the tear should have been detected sooner.

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