www.CharlesJeromeWare.com. "Here to make a difference."
The national law offices of Charles Jerome Ware, Attorneys & Counselors, LLC, are headquartered in Columbia, Howard County, Maryland near the Columbia Mall downtown. Among Attorney Ware's numerous awards and achievements are his ranking as a "U.S. Super Lawyer" as well as his ranking and recognition by his many satisfied clients and legal peers as one of Maryland's "Best 10" Attorneys.
For an initial courtesy consultation, feel free to call Attorney Ware and his colleagues at (410) 730-5016 or (410) 720-6129. We can help you.
LAWSUIT
A lawsuit or (very rarely) "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint. If the plaintiff is successful, judgment is in the plaintiff's favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.
A lawsuit may involve dispute resolution of private law issues between individuals, business entities or non-profit organizations. A lawsuit may also enable the state to be treated as if it were a private party in a civil case, as plaintiff, or defendant regarding an injury, or may provide the state with a civil cause of action to enforce certain laws.
The conduct of a lawsuit is called litigation. The plaintiffs and defendants are called litigants and the attorneys representing them are called litigators. The term litigation may also refer to criminal trial.
PLEADING
A lawsuit begins in Maryland when a complaint is filed with a county or Baltimore City district, or a county or Baltimore city circuit court, or the U.S. District Court. This complaint states that one or more plaintiffs seeks damages or equitable relief from one or more stated defendants, and identifies the legal and factual bases for doing so. It is important that the "plaintiff selects the proper venue with the proper jurisdiction to bring his lawsuit."
The clerk of a court signs or stamps the court seal upon a summons, which is then served by the plaintiff upon the defendant, together with a copy of the complaint. This service notifies the defendants that they are being sued and that they have a specific time limit to file a response.
By providing a copy of the complaint, the service also notifies the defendants of the nature of the claims. Once the defendants are served with the summons and complaint, they are subject to a time limit to file an answer stating their defenses to the plaintiff's claims, including any challenges to the court's jurisdiction, and any counterclaims they wish to assert against the plaintiff.
In a handful of jurisdictions such as Maryland a lawsuit begins when one or more plaintiffs properly serve a summons and complaint upon the defendant(s). In such jurisdictions, nothing must be filed with the court until a dispute develops requiring actual judicial intervention.
[see, legal book, Understanding the Law: A Primer, by Attorney Charles Jerome Ware (2008); The Lawsuit Survival Guide, Joseph L. Matthews; "Civil Litigation: The official Guide to Legal Specialties, NALP]
If you live in Maryland, or even more specifically in Howard County, and you think you might be the victim of a legal wrong (tort or contract breach), you may want to sue over the wrong if it's worth doing so, to recover compensation or other relief from the person or institution who wronged you. Contact us for advice, consultation and/or representation to help you in your next step. We can help you.
Tuesday, October 14, 2014
BALTIMORE LEAD PAINT POISONING LEGAL DEFENSE GRAND ROUNDS
www.CharlesJeromeWare.com. "Here to make a difference."
Charles Jerome Ware, Attorneys & Counselors, LLC, is a premier Maryland-based national landlord lead paint defense law firm. For an initial courtesy consultation, contact us at charlesjeromeware@msn.com, (410) 730-5016 or (410) 720-6129. We can help you.
As I update these blogs in the area of lead-based paint poisoning litigation in Maryland, and particularly in Baltimore, several trends of significant concern to Baltimore landlords, property owners and property managers continue to develop through lawsuits.
1. Toliver v. Waicker, 210 Md. App. 52, 62 A.3d 200 (2013), cert. denied, 432 Md. 213, 68 A.3d 287 (2013). Decision: Management company president, in that position alone, is not liable personally as "operator" under the housing code.
2. Taylor v. Fiskind, 207 Md. App. 121, 51 A.3d 743 (2012), cert. denied, 431 Md. 221, 64 A. 3d 497 (2013). Decision :" Substantial Factor" causation expert lacks sufficient factual basis to opine within a reasonable degree of medical certainty that the residential unit was a substantial contributing source of the plaintiff's lead exposure.
3.Hamilton v. Dackman, 213 Md. App. 589, 75 A.3d 327, petition for cert. filed, Petition Docket No. 450, Sept. Term, 2013 : Decision: In order to make a prima facie case of lead paint poisoning, a plaintiff must show that the subject property was probably 9i.e., more likely than not) a source of exposure.
4. Dixon v. Ford Motor Co., 433 Md. 137, 70 A.3d 328 (2013). Decision : A Frye/Reed analysis of the admissibility of an expert's opinion based upon its general acceptance in the relevant scientific community is only necessary if that opinion involves a novel scientific method.
5. West v. Rochkind, 212 Md. App. 164, 66 A.3d 1145 (2013), cert. denied, 435 Md. 270, 77 A.3d 1086 (2013). Decision : A plaintiff may prove the presence of lead paint at a property by way of circumstantial evidence without XRF spectrometry or laboratory paint chip or dust testing.
6. Montgomery Mutual. Ins. Co. v. Chesson, 434 Md. 346, 75 A.3d 932 (2013). Decision: An expert's "novel" opinion as to causation due to toxic exposure must be generally accepted in the relevant scientific community before it can be deemed admissible.
7. City Homes, Inc. v. Hazelwood, 210 Md. App. 615, 63 A.3d 713 (2013), cert. denied, 432 Md. 468, 69 A.3d 476 (2013). Decision: Expert's lack of qualifications and his insufficient factual basis
to offer an opinion, as well as his lack of knowledge of the source of the lead ingestion, ruled out his testimony at trial.
8. Ross v. Housing Authority of Baltimore City, 430 Md. 648, 63 A.3d 1 (2013). Decision: Though the doctor was properly excluded as an "expert" at trial as to the "source" of the plaintiff's lead exposure, the exclusion of that testimony did not preclude the plaintiff from establishing the causal link by circumstantial evidence at trial.
9. Butler v. S & S Partnership, 435 Md. 635, 80 A.3d 298 (2013), Decision: A trial court may not, sua sponte, exclude an expert's opinions based on discovery violations found under Maryland Rule 2-432(b) without a party first moving for an order to compel discovery or filing a motion for discovery sanctions.
10. Hamilton v. Kirson;and Alston v. 2700 Virginia Avenue Assocs. 2014 Court of Appeals Cases.
These two cases will be argued and considered on the issue of the admissibility of expert causation testimony and the legal sufficiency of a plaintiff's use of circumstantial evidence to prove causation.
Charles Jerome Ware, Attorneys & Counselors, LLC, is a premier Maryland-based national landlord lead paint defense law firm. For an initial courtesy consultation, contact us at charlesjeromeware@msn.com, (410) 730-5016 or (410) 720-6129. We can help you.
THE CDC, HEALTH DEPARTMENTS, AND CASES
As I update these blogs in the area of lead-based paint poisoning litigation in Maryland, and particularly in Baltimore, several trends of significant concern to Baltimore landlords, property owners and property managers continue to develop through lawsuits.
The CDC (Centers for Disease Control) and Maryland health departments have consistently lowered "acceptable" blood-lead levels to the point where significantly more children are now legally classified as "lead poisoned." Many of these newly-classified children (victims) will go on to become plaintiffs in Baltimore lead-based paint poisoning lawsuits.
Certainly, to treat childhood lead paint poisoning claims as you would a typical landlord-tenant action would be naïve, irresponsible, and even dangerous. Investigation of these claims should be prompt and thorough, and must consider the complex medical and legal issues --- including, of course, the many multifaceted issues that may affect liability.
Despite the fact that numerous judges, other public officials, as well as commentators have suggested that in certain circumstances lead poisoning cases are "indefensible," we respectfully disagree with that view.
It is my view, and that of my law firm, that lead-based paint poisoning claims can be defended.
RECENT MARYLAND LEAD POISONING DECISIONS
In 2012 , 2013 and 2014 Maryland's two highest courts --- The Maryland Court of Appeals and the Court of Special Appeals --- placed a priority on the legal review of lead-based paint poisoning cases. Ten of those cases which more directly and immediately affect litigation of Maryland's civil lead-based paint poisoning lawsuits include the following:
1. Toliver v. Waicker, 210 Md. App. 52, 62 A.3d 200 (2013), cert. denied, 432 Md. 213, 68 A.3d 287 (2013). Decision: Management company president, in that position alone, is not liable personally as "operator" under the housing code.
2. Taylor v. Fiskind, 207 Md. App. 121, 51 A.3d 743 (2012), cert. denied, 431 Md. 221, 64 A. 3d 497 (2013). Decision :" Substantial Factor" causation expert lacks sufficient factual basis to opine within a reasonable degree of medical certainty that the residential unit was a substantial contributing source of the plaintiff's lead exposure.
3.Hamilton v. Dackman, 213 Md. App. 589, 75 A.3d 327, petition for cert. filed, Petition Docket No. 450, Sept. Term, 2013 : Decision: In order to make a prima facie case of lead paint poisoning, a plaintiff must show that the subject property was probably 9i.e., more likely than not) a source of exposure.
4. Dixon v. Ford Motor Co., 433 Md. 137, 70 A.3d 328 (2013). Decision : A Frye/Reed analysis of the admissibility of an expert's opinion based upon its general acceptance in the relevant scientific community is only necessary if that opinion involves a novel scientific method.
5. West v. Rochkind, 212 Md. App. 164, 66 A.3d 1145 (2013), cert. denied, 435 Md. 270, 77 A.3d 1086 (2013). Decision : A plaintiff may prove the presence of lead paint at a property by way of circumstantial evidence without XRF spectrometry or laboratory paint chip or dust testing.
6. Montgomery Mutual. Ins. Co. v. Chesson, 434 Md. 346, 75 A.3d 932 (2013). Decision: An expert's "novel" opinion as to causation due to toxic exposure must be generally accepted in the relevant scientific community before it can be deemed admissible.
7. City Homes, Inc. v. Hazelwood, 210 Md. App. 615, 63 A.3d 713 (2013), cert. denied, 432 Md. 468, 69 A.3d 476 (2013). Decision: Expert's lack of qualifications and his insufficient factual basis
to offer an opinion, as well as his lack of knowledge of the source of the lead ingestion, ruled out his testimony at trial.
8. Ross v. Housing Authority of Baltimore City, 430 Md. 648, 63 A.3d 1 (2013). Decision: Though the doctor was properly excluded as an "expert" at trial as to the "source" of the plaintiff's lead exposure, the exclusion of that testimony did not preclude the plaintiff from establishing the causal link by circumstantial evidence at trial.
9. Butler v. S & S Partnership, 435 Md. 635, 80 A.3d 298 (2013), Decision: A trial court may not, sua sponte, exclude an expert's opinions based on discovery violations found under Maryland Rule 2-432(b) without a party first moving for an order to compel discovery or filing a motion for discovery sanctions.
10. Hamilton v. Kirson;and Alston v. 2700 Virginia Avenue Assocs. 2014 Court of Appeals Cases.
These two cases will be argued and considered on the issue of the admissibility of expert causation testimony and the legal sufficiency of a plaintiff's use of circumstantial evidence to prove causation.
Monday, October 13, 2014
BUSINESS LAW & TRIAL ATTORNEY - HOWARD COUNTY, MARYLAND
www.CharlesJeromeWare.com. "Here to make a difference." We can help you. Guaranteed. Business and Trial Attorneys.
Among his numerous other legal awards and honors such as "America's Best Attorneys and Counselors", U.S. Super Lawyer, "Top Lawyers in America", Top Attorneys and Counselors in the U.S., "Top Lawyers in Maryland", and winner of the national "Charles Hamilton Houston Award for Outstanding Litigation", premier criminal defense attorney Charles Ware is recognized and ranked by hi many satisfied clients as well as his legal peers as "One of the 10 BEST DUI and DWI Attorneys in the State of Maryland," as confirmed from research, surveys and other investigation by The American Institute of DUI and DWI Attorneys [AIDUIA] --- a respected national organization of trial lawyers.
Attorney Ware is also the founder and senior partner of the Maryland-based national business, criminal defense and civil trial law firm Charles Jerome Ware, Attorneys & Counselors, LLC. For an initial courtesy consultation, call Mr. Ware at (410) 730-5016 or (410) 720-6129.
Write your thoughts
Among his numerous other legal awards and honors such as "America's Best Attorneys and Counselors", U.S. Super Lawyer, "Top Lawyers in America", Top Attorneys and Counselors in the U.S., "Top Lawyers in Maryland", and winner of the national "Charles Hamilton Houston Award for Outstanding Litigation", premier criminal defense attorney Charles Ware is recognized and ranked by hi many satisfied clients as well as his legal peers as "One of the 10 BEST DUI and DWI Attorneys in the State of Maryland," as confirmed from research, surveys and other investigation by The American Institute of DUI and DWI Attorneys [AIDUIA] --- a respected national organization of trial lawyers.
Attorney Ware is also the founder and senior partner of the Maryland-based national business, criminal defense and civil trial law firm Charles Jerome Ware, Attorneys & Counselors, LLC. For an initial courtesy consultation, call Mr. Ware at (410) 730-5016 or (410) 720-6129.
Write your thoughts
HO. CO. HOLIDAY SEASON LEGAL PITFALLS, www.CharlesJeromeWare.com
www.CharlesJeromeWare.com. "Here to make a difference."
The Fall season is a very exciting period in Maryland communities and throughout the nation with is beloved holidays of Halloween, Thanksgiving, Christmas, New Year's, et al. However, before raising your glass (or can) in celebration of any of these holidays, the following are some thoughts on legal issues that arise (and increase) every year about this time, inter alia.
www.CharlesJeromeWare.com. "Here to make a difference." We can help you. Guaranteed. Business and Trial Attorneys.
Among his numerous other legal awards and honors such as "America's Best Attorneys and Counselors", U.S. Super Lawyer, "Top Lawyers in America", Top Attorneys and Counselors in the U.S., "Top Lawyers in Maryland", and winner of the national "Charles Hamilton Houston Award for Outstanding Litigation", premier criminal defense attorney Charles Ware is recognized and ranked by hi many satisfied clients as well as his legal peers as "One of the 10 BEST DUI and DWI Attorneys in the State of Maryland," as confirmed from research, surveys and other investigation by The American Institute of DUI and DWI Attorneys [AIDUIA] --- a respected national organization of trial lawyers.
Attorney Ware is also the founder and senior partner of the Maryland-based national business, criminal defense and civil trial law firm Charles Jerome Ware, Attorneys & Counselors, LLC. For an initial courtesy consultation, call Mr. Ware at (410) 730-5016 or (410) 720-6129.
The Fall season is a very exciting period in Maryland communities and throughout the nation with is beloved holidays of Halloween, Thanksgiving, Christmas, New Year's, et al. However, before raising your glass (or can) in celebration of any of these holidays, the following are some thoughts on legal issues that arise (and increase) every year about this time, inter alia.
- Holiday parties can be fun (and are designed to be) but also treacherous. Booze, food, music, and co-workers can be an exciting but problematic mix. Invariably these parties can end with sexual harassment claims, public drunkenness, drunk driving, and lots of embarrassment, etc.
- Theft rises every year --- substantially --- about this time (the last 3 months of the year): including shoplifting, home and car invasions, robberies, burglaries, and so forth. Marylanders are almost 50% more likely to file theft claims during this time of year.
- Domestic abuse of children, spouses, girlfriends (and boyfriends) increases significantly.
- Bankruptcies, too, increase significantly, due mainly to the pressures of BUYING gifts.
- Traffic accidents rise, due principally to drug and alcohol use: "If you drink and/or use drugs, do not drive!" Police are out in force looking for these individuals who do drugs and/or alcohol and then drive. Car accidents abound during this 3-month period of time, so get a good night's rest before driving.
- Fire hazards from candles (mainly), other lighted decorations, wood fireplaces, Christmas trees, etc., also occur with frequency. Further, with so much cooking going on, kitchen safety becomes critical.
- Home invasions, of course, increase since about 52% of Marylanders travel overnight during the holidays.
- Drug and Alcohol Overdoses. The seasons can be lonely and very sad for many people, including children. Put away (especially from children) all prescription drugs, and watch the use of over-the-counter drugs.
www.CharlesJeromeWare.com. "Here to make a difference." We can help you. Guaranteed. Business and Trial Attorneys.
Among his numerous other legal awards and honors such as "America's Best Attorneys and Counselors", U.S. Super Lawyer, "Top Lawyers in America", Top Attorneys and Counselors in the U.S., "Top Lawyers in Maryland", and winner of the national "Charles Hamilton Houston Award for Outstanding Litigation", premier criminal defense attorney Charles Ware is recognized and ranked by hi many satisfied clients as well as his legal peers as "One of the 10 BEST DUI and DWI Attorneys in the State of Maryland," as confirmed from research, surveys and other investigation by The American Institute of DUI and DWI Attorneys [AIDUIA] --- a respected national organization of trial lawyers.
Attorney Ware is also the founder and senior partner of the Maryland-based national business, criminal defense and civil trial law firm Charles Jerome Ware, Attorneys & Counselors, LLC. For an initial courtesy consultation, call Mr. Ware at (410) 730-5016 or (410) 720-6129.
DOUBLE JEOPARDY the TWIGG case, AND NFL'S RAY RICE: Maryland Defense Attorney Charles Ware
www.CharlesJeromeWare.com. "Here to make a difference."
With issues such as the National Football League's (NFL's) Ray Rice suspension back in the spotlight, the legal doctrine of "double jeopardy" is now a popular topic of discussion.
Double jeopardy is one of the oldest legal concepts in the Western world. As far back as 355 B.C., Athenian statesman Demosthenes said, "The law forbids the same man to be tried twice on the same issue." In England , protection against double jeopardy was considered a "universal MAXIM of the common law" [United States v. Wilson , 420 U.S. 332, 340, 95 S. Ct. 1013, 1020, 43 L. Ed. 2d. 232 (1975)], and was embraced by most eminent jurists.
In sum, double jeopardy is defined as follows:
A second prosecution of a defendant for the same offense after acquittal or conviction or multiple punishments for the same offense. The evil or wrong sought to avoided by prohibiting double jeopardy is the double trial and double conviction, but not necessarily double punishment.
The current Maryland double jeopardy decision comes from the Maryland Court of Special Appeals; DONALD TWIGG v. STATE OF MARYLAND, No. 1878, September Term, 2011 (Decision filed October 1, 2014); Deciding Judges panel Woodward, Nazarian and Salmon (Retired, Specially Assigned); 31 pages.
FACTS
The defendant, Donald Twigg, was indicted by a Grand Jury in Charles County, Maryland on October 29, 2010, on six counts: (1) sexual child abuse; (2) carnal knowledge; (3) second degree rape; (4) second degree sexual offense; (5) third degree sexual offense; and (6) incest. The victim of all of the charges was appellant's daughter, Ms. M., who was born on March 26, 1964. The offenses charged in the indictment allegedly occurred from 1974 to 1979, when Ms. M. was nine to fourteen years old.
In August 2011, Twiggs was tried in the circuit court on all six charges. Ms. M. testified that, beginning when she was around the age of 7 years old, Twigg began to sexually abuse her, and the abuse continued until she was approximately 15 and1/2. Specifically, Ms. M. stated that, while she was living at home, Twigg would come into her room at night and touch her sexually until he had an orgasm. Ms. M. testified that around the age of twelve, Twigg began penetrating her with his penis.
Ms. M. indicated that the instances of penetration ceased when she was approximately fifteen and a half years old. Ms. M. said that overall, the incidents of vaginal intercourse occurred “several times.” According to Ms. M., these incidents occurred in the basement of the family home and in appellant's van in nearby parking lots. Ms. M. also acknowledged that she was currently involved in several lawsuits against Twigg concerning family property and bank accounts. She testified, however, that the property disputes were not the reason that she had come forward with allegations of sexual abuse.
Detective Corporal Kenneth Klezia, of the Charles County Sheriff's Office's Special Victims Unit, testified that, on October 9, 2010, he met with Ms. M. to conduct a recorded telephone call between Ms. M. and appellant. During the recorded conversation, appellant stated that he always used condoms when having sex with Ms. M. to prevent pregnancy.
At the close of the State's case-in-chief, appellant moved for judgment of acquittal pertaining to the second degree sexual offense charge, which was granted. Appellant then testified in his own defense, denying all allegations of sexual abuse and claiming a misunderstanding regarding the recorded telephone conversation. In addition, appellant testified to several recent disputes between himself and Ms. M. involving jewelry, money, and property.
At the close of all of the evidence, appellant moved for judgment of acquittal as to the carnal knowledge count, which the trial court took under advisement. The jury returned verdicts of guilty on the charges of: sexual child abuse (from July 1, 1974 to January 1, 1979); carnal knowledge (from March 25, 1974 to June 30, 1976); second degree rape (from July 1, 1976 to March 25, 1978); third degree sexual offense (from July 1, 1976 to March 25, 1978); and incest (from March 25, 1974 to January 1, 1979).
The trial court erred in imposing separate sentences on defendant for second degree rape, third degree sexual offense, and incest because, according to the principles of double jeopardy, the "required evidence" test mandated the merger of defendant's sexual offense convictions into the sexual child abuse conviction for sentencing purposes.
[The Daily Record, Thursday, October 9, 2014, pp. 15A-16A; Understanding the Law: A Primer (by Attorney Charles Jerome Ware (2008)]
NFL v. RAY RICE
Essentially, the "industrial double jeopardy" argument in arbitration argues that an employee who has already been punished for an act (or lack thereof) cannot be dismissed thereafter. However, "a second sanction only transgresses industrial double jeopardy principles if the first sanction has become final" [Zayas, et al. v. Bacardi Corporation, No. 07-1950 (04/18/08). In sum, if Baltimore Raven player Ray Rice's previous 2-game suspension was considered "final" punishment, constitutionally he should not be punished a second time by the NFL with any additional suspension. Such action against Rice by the National Football League would also be a violation of Rice's "industrial due process" rights.
Wednesday, October 8, 2014
WHOAAA! $55,000,000 OB/GYN MALPRACTICE VERDICT?!?!
www.CharlesJeromeWare.com. "Here to make a difference."
The information provided herein is excerpted from Zarin's Jury Verdict Reviews & Analysis; 10/08/2014; http://www.jvra.com/verdict_trak/article.aspx (Lehigh County, PA, 192233). This blog and the Zarin's information herein does not create, nor is intended to create, an attorney-client relationship between anyone.
$55,000,000 VERDICT – MEDICAL MALPRACTICE – OB/GYN – FAILURE TO RECOMMEND C-SECTION DURING FINAL FIVE HOURS OF 30 HOUR LABOR – NEGLIGENT CONTINUATION OF PITOCIN – STRONG CONTRACTIONS ALLEGEDLY CONTINUE TO COMPRESS UMBILICAL CORD – CEREBRAL PALSY ALLEGEDLY ASSOCIATED WITH FETAL ASPHYXIA.[Thanks to Zarin's Jury Verdict Review & Analysis; http://www.jvra.com/verdict_trak/10-08-2014]
In this medical malpractice action, the plaintiffs contended that the defendant ob/gyn and the defendant hospital negligently failed to recognize fetal hypoxia, discontinue Pitocin (a natural hormone that causes the uterus to contract), and pursue a C-section delivery despite continuing signs of fetal distress which the plaintiffs maintained were manifest during the final five hours of the 30 hour labor.
The plaintiffs contended that the prolonged hypoxic uterine environment rendered the infant unable to tolerate the shoulder dystocia (a rare emergency that can happen during the end of the second stage of labor: the baby's head is born, but one of the baby's shoulders becomes stuck) and associated cord compression experienced during the final minutes prior to delivery. As a result, the child was born in a very depressed state and suffered hypoxic-related cerebral palsy manifested by developmental delays that are primarily motor-related, and will permanently be unable to ambulate without assistance or the use of a wheelchair.
The child, who was slightly older than four years of age at the time of trial, did not suffer an extensive cognitive impairment, and will be fully aware of the nature of his plight.
The plaintiffs alleged a series of errors, commencing with the defendant ob/gyn’s failure to anticipate a relatively large infant. The plaintiffs contended that there were several factors that suggested the likelihood of cephalopelvic disproportion and a consequent difficult vaginal delivery. The mother was of small stature (when she conceived, she was five feet two inches tall and weighed slightly more than 90 pounds), and the father was relatively large (six feet four inches tall). The plaintiff mother had gained nearly 40 pounds, and an ultrasound obtained at 35 weeks reflected an estimated fetal weight of six and a-half pounds.
The defendants’ experts conceded that the baby’s weight would have been expected to increase by approximately a-half pound per week, raising the likelihood of an objectively large infant weighing as much as nine pounds by 40 weeks. The mother went into labor when she was one week overdue and the baby was, in fact, slightly less than nine pounds when born. Nonetheless, the defendant ob/gyn testified that he could not have anticipated such a large baby.
The evidence disclosed that serial ultrasounds had been conducted throughout the pregnancy because earlier testing earlier showed a slight elevation of the HGC hormone (Human Chorionic Gonadotropin (HGC) is a hormone that supports the normal development of an egg in a women's body), which could be associated with placental insufficiency and associated problems such as low birth weight. The plaintiff maintained that there was, in fact, no placental insufficiency as demonstrated by the normal ultrasounds and the fetal weights shown by ultrasound. The defense argued that the possibility of placental insufficiency, and some unrecognized event prior to labor and delivery, might explain the poor outcome here.
The mother went into labor at approximately 12:30 p.m. on November 3rd.
The plaintiffs maintained that the mother’s slow progress of labor, despite augmentation with Pitocin, was a further sign of an impending large baby. The plaintiffs argued that the likely size of the baby posed a contraindication to the continued administration of Pitocin, and that its continued use led to increasingly frequent and prolonged contractions which diminished the supply of oxygen to the fetus. Plaintiffs’ experts contended that uterine contractions are naturally associated with cord compression, and that the excessive uterine activity prompted by the Pitocin caused prolonged compression with diminished opportunity for re-oxygenation between contractions.
The plaintiffs maintained that fetal monitoring tracings showed progressively concerning signs of fetal distress, which, coupled with the dysfunctional labor, warranted a C-section by approximately 1:00 p.m. on November 4th. The mother continued to labor poorly, and, according to the plaintiffs, fetal monitoring became progressively less reassuring. The plaintiffs also maintained that the tracings, while non-reassuring, were not suggestive of outright asphyxiation until much later in the delivery, and that there were multiple opportunities to deliver the baby by C-section.
The defense contended that the fetal heart tracings were reassuring throughout the labor, and that there was never an indication for cesarean section delivery.
Approximately 40 minutes prior to delivery, the defendant ob/gyn determined that fetal monitoring was becoming sufficiently concerning to warrant intervention. His labor and delivery report described concerning repetitive severe decelerations. However, instead of pursuing a C-section, he attempted a vaginal delivery using a vacuum extractor. The ensuing delivery was difficult, and was complicated by shoulder dystocia and attendant cord compression. The records did not reflect the duration of the shoulder dystocia, though the defendant contended at trial that it was relatively brief.
The fetal heart tracings in the 15 to 20 minutes prior to delivery were markedly abnormal. The plaintiffs claimed that the tachycardia was a sign of fetal asphyxiation, while the defense maintained that it was simply a function of the stimulation provided by the vacuum extraction. The baby was delivered limp, blue, and not breathing when born. He had a one minute Apgar score of two. The other scores were three at five minutes, and seven at ten minutes. The plaintiffs contended that the child suffered asphyxia in the moments prior to birth and that the hypoxic insult caused cerebral palsy.
The defendants denied that there was any asphyxiation, and pointed to the infant’s umbilical cord blood pH level which did not meet the ACOG criteria for perinatal asphyxiation. ACOG requires satisfaction of four elements, including an umbilical cord blood pH level under 7.0. Although the umbilical sample here had an abnormally low pH (7.2), it was not low enough to satisfy ACOG criteria.
The plaintiffs argued that the value was spurious because it could not be reconciled with the subsequent measurement of the baby’s blood pH which was somehow more acidotic than the umbilical sample, even though the baby had received oxygen and fluids in the interim.
The plaintiffs noted satisfaction of the other ACOG criteria (criteria for child deliveries by the American Congress of Obstetricians and Gynecologists), including the presence of newborn seizures, abnormal liver enzymes, and MRI evidence of encephalopathy. The defendants maintained that the failure to satisfy all four of the required criteria negated the possibility of birth asphyxiation. The defense experts attributed the baby’s deteriorating blood pH values to a pneumothorax that had developed in the hours after birth. However, on cross-examination, the defense expert acknowledged that the blood sample had been drawn from the baby before any pneumothorax had developed.
The plaintiffs argued that the ACOG criteria were purposefully designed to be difficult to satisfy, and that their promulgation was akin to allowing baseball players on the field to call their own balls and strikes. The defendants argued that the criteria were matters of science. The plaintiffs maintained that the cerebral palsy will be associated with significant and permanent motor deficits. The plaintiffs contended that the child will only be able to walk a short distance even with assistive devices, and will often require a wheelchair.
The plaintiffs emphasized that the absence of cognitive impairments actually amplified the damage because the child will be fully aware of the extent of his impairments, effectively rendering him a prisoner in his own body. The plaintiffs’ economic proofs regarding cost of care and lost earning capacity ranged between $8 million and approximately $14 million.
Before the close of evidence, the parties entered into an undisclosed high/low agreement. As a result, the jury was not instructed to provide separate awards for economic and non-economic damages. Additionally, the jury was not instructed to provide a year by year award for special damages. Ordinarily, Pennsylvania law would require the court to mold the verdict by reducing the economic damages to their present value.
The jury found the defendant ob/gyn 50% negligent, the defendant hospital 50% negligent, and awarded the plaintiffs $55,000,000.
The information provided herein is excerpted from Zarin's Jury Verdict Reviews & Analysis; 10/08/2014; http://www.jvra.com/verdict_trak/article.aspx (Lehigh County, PA, 192233). This blog and the Zarin's information herein does not create, nor is intended to create, an attorney-client relationship between anyone.
$55,000,000 VERDICT – MEDICAL MALPRACTICE – OB/GYN – FAILURE TO RECOMMEND C-SECTION DURING FINAL FIVE HOURS OF 30 HOUR LABOR – NEGLIGENT CONTINUATION OF PITOCIN – STRONG CONTRACTIONS ALLEGEDLY CONTINUE TO COMPRESS UMBILICAL CORD – CEREBRAL PALSY ALLEGEDLY ASSOCIATED WITH FETAL ASPHYXIA.[Thanks to Zarin's Jury Verdict Review & Analysis; http://www.jvra.com/verdict_trak/10-08-2014]
In this medical malpractice action, the plaintiffs contended that the defendant ob/gyn and the defendant hospital negligently failed to recognize fetal hypoxia, discontinue Pitocin (a natural hormone that causes the uterus to contract), and pursue a C-section delivery despite continuing signs of fetal distress which the plaintiffs maintained were manifest during the final five hours of the 30 hour labor.
The plaintiffs contended that the prolonged hypoxic uterine environment rendered the infant unable to tolerate the shoulder dystocia (a rare emergency that can happen during the end of the second stage of labor: the baby's head is born, but one of the baby's shoulders becomes stuck) and associated cord compression experienced during the final minutes prior to delivery. As a result, the child was born in a very depressed state and suffered hypoxic-related cerebral palsy manifested by developmental delays that are primarily motor-related, and will permanently be unable to ambulate without assistance or the use of a wheelchair.
The child, who was slightly older than four years of age at the time of trial, did not suffer an extensive cognitive impairment, and will be fully aware of the nature of his plight.
The plaintiffs alleged a series of errors, commencing with the defendant ob/gyn’s failure to anticipate a relatively large infant. The plaintiffs contended that there were several factors that suggested the likelihood of cephalopelvic disproportion and a consequent difficult vaginal delivery. The mother was of small stature (when she conceived, she was five feet two inches tall and weighed slightly more than 90 pounds), and the father was relatively large (six feet four inches tall). The plaintiff mother had gained nearly 40 pounds, and an ultrasound obtained at 35 weeks reflected an estimated fetal weight of six and a-half pounds.
The defendants’ experts conceded that the baby’s weight would have been expected to increase by approximately a-half pound per week, raising the likelihood of an objectively large infant weighing as much as nine pounds by 40 weeks. The mother went into labor when she was one week overdue and the baby was, in fact, slightly less than nine pounds when born. Nonetheless, the defendant ob/gyn testified that he could not have anticipated such a large baby.
The evidence disclosed that serial ultrasounds had been conducted throughout the pregnancy because earlier testing earlier showed a slight elevation of the HGC hormone (Human Chorionic Gonadotropin (HGC) is a hormone that supports the normal development of an egg in a women's body), which could be associated with placental insufficiency and associated problems such as low birth weight. The plaintiff maintained that there was, in fact, no placental insufficiency as demonstrated by the normal ultrasounds and the fetal weights shown by ultrasound. The defense argued that the possibility of placental insufficiency, and some unrecognized event prior to labor and delivery, might explain the poor outcome here.
The mother went into labor at approximately 12:30 p.m. on November 3rd.
The plaintiffs maintained that the mother’s slow progress of labor, despite augmentation with Pitocin, was a further sign of an impending large baby. The plaintiffs argued that the likely size of the baby posed a contraindication to the continued administration of Pitocin, and that its continued use led to increasingly frequent and prolonged contractions which diminished the supply of oxygen to the fetus. Plaintiffs’ experts contended that uterine contractions are naturally associated with cord compression, and that the excessive uterine activity prompted by the Pitocin caused prolonged compression with diminished opportunity for re-oxygenation between contractions.
The plaintiffs maintained that fetal monitoring tracings showed progressively concerning signs of fetal distress, which, coupled with the dysfunctional labor, warranted a C-section by approximately 1:00 p.m. on November 4th. The mother continued to labor poorly, and, according to the plaintiffs, fetal monitoring became progressively less reassuring. The plaintiffs also maintained that the tracings, while non-reassuring, were not suggestive of outright asphyxiation until much later in the delivery, and that there were multiple opportunities to deliver the baby by C-section.
The defense contended that the fetal heart tracings were reassuring throughout the labor, and that there was never an indication for cesarean section delivery.
Approximately 40 minutes prior to delivery, the defendant ob/gyn determined that fetal monitoring was becoming sufficiently concerning to warrant intervention. His labor and delivery report described concerning repetitive severe decelerations. However, instead of pursuing a C-section, he attempted a vaginal delivery using a vacuum extractor. The ensuing delivery was difficult, and was complicated by shoulder dystocia and attendant cord compression. The records did not reflect the duration of the shoulder dystocia, though the defendant contended at trial that it was relatively brief.
The fetal heart tracings in the 15 to 20 minutes prior to delivery were markedly abnormal. The plaintiffs claimed that the tachycardia was a sign of fetal asphyxiation, while the defense maintained that it was simply a function of the stimulation provided by the vacuum extraction. The baby was delivered limp, blue, and not breathing when born. He had a one minute Apgar score of two. The other scores were three at five minutes, and seven at ten minutes. The plaintiffs contended that the child suffered asphyxia in the moments prior to birth and that the hypoxic insult caused cerebral palsy.
The defendants denied that there was any asphyxiation, and pointed to the infant’s umbilical cord blood pH level which did not meet the ACOG criteria for perinatal asphyxiation. ACOG requires satisfaction of four elements, including an umbilical cord blood pH level under 7.0. Although the umbilical sample here had an abnormally low pH (7.2), it was not low enough to satisfy ACOG criteria.
The plaintiffs argued that the value was spurious because it could not be reconciled with the subsequent measurement of the baby’s blood pH which was somehow more acidotic than the umbilical sample, even though the baby had received oxygen and fluids in the interim.
The plaintiffs noted satisfaction of the other ACOG criteria (criteria for child deliveries by the American Congress of Obstetricians and Gynecologists), including the presence of newborn seizures, abnormal liver enzymes, and MRI evidence of encephalopathy. The defendants maintained that the failure to satisfy all four of the required criteria negated the possibility of birth asphyxiation. The defense experts attributed the baby’s deteriorating blood pH values to a pneumothorax that had developed in the hours after birth. However, on cross-examination, the defense expert acknowledged that the blood sample had been drawn from the baby before any pneumothorax had developed.
The plaintiffs argued that the ACOG criteria were purposefully designed to be difficult to satisfy, and that their promulgation was akin to allowing baseball players on the field to call their own balls and strikes. The defendants argued that the criteria were matters of science. The plaintiffs maintained that the cerebral palsy will be associated with significant and permanent motor deficits. The plaintiffs contended that the child will only be able to walk a short distance even with assistive devices, and will often require a wheelchair.
The plaintiffs emphasized that the absence of cognitive impairments actually amplified the damage because the child will be fully aware of the extent of his impairments, effectively rendering him a prisoner in his own body. The plaintiffs’ economic proofs regarding cost of care and lost earning capacity ranged between $8 million and approximately $14 million.
Before the close of evidence, the parties entered into an undisclosed high/low agreement. As a result, the jury was not instructed to provide separate awards for economic and non-economic damages. Additionally, the jury was not instructed to provide a year by year award for special damages. Ordinarily, Pennsylvania law would require the court to mold the verdict by reducing the economic damages to their present value.
The jury found the defendant ob/gyn 50% negligent, the defendant hospital 50% negligent, and awarded the plaintiffs $55,000,000.
WARRANTLESS SURVEILLANCE FREES NEW YORK TERRORIST SUSPECT: MARYLAND DEFENSE ATTORNEY CHARLES WARE REPORTS
www.CharlesJeromeWare.com. "Here to make a difference." We fight, you win.
Agron Hasbajrami, Petitioner v. United States of America, Respondent, 13-CV-6852, U.S. District Court for the Eastern District of New York, October 7, 2014; U.S. District Judge John Gleeson:
Agron Hasbajrami, an Albanian man who pled guilty to a terrorism charge, can no withdraw his plea (if he so chooses) after the U.S. government disclosed that Hasbajrami's communications had been monitored prior to his arrest without a warrant. The court's ruling in Brooklyn, New York federal court likely sets up a rare constitutional challenge to this controversial practice.
The federal judge, John Gleeson, ruled that Hasbajrami can reverse his decision because he was denied an opportunity to question the constitutionality of the surveillance before he decided to plead guilty.
The case is one of five in which the Justice Department has provided a criminal defendant with notice of warrantless wiretapping since officials decided last year to change the policy on disclosing such information, according to the American Civil Liberties Union.
The ruling, issued on Friday, will allow Hasbajrami to challenge the surveillance, though Gleeson warned he was not expressing any view on the merits of that argument.
The monitoring is authorized under a 2008 law that allows the government to collect communications without a warrant between Americans and foreign citizens abroad who are intelligence targets. The program began under former President George W. Bush and ended in 2007 before Congress revived portions of it the following year.
Last year, the Justice Department determined that criminal defendants should be notified of such evidence, according to court filings.
Attorney Charles Ware is a Maryland-based defense law firm with a premier national criminal defense law practice. For an initial courtesy consultation, he can be reached at (410) 730-5016 or (410) 720-6129.
[see, http://www.msn.com/en-us/news/crime/defendant-can-withdraw-us-terror-plea/10-07-2014]
Agron Hasbajrami, Petitioner v. United States of America, Respondent, 13-CV-6852, U.S. District Court for the Eastern District of New York, October 7, 2014; U.S. District Judge John Gleeson:
Agron Hasbajrami, an Albanian man who pled guilty to a terrorism charge, can no withdraw his plea (if he so chooses) after the U.S. government disclosed that Hasbajrami's communications had been monitored prior to his arrest without a warrant. The court's ruling in Brooklyn, New York federal court likely sets up a rare constitutional challenge to this controversial practice.
The federal judge, John Gleeson, ruled that Hasbajrami can reverse his decision because he was denied an opportunity to question the constitutionality of the surveillance before he decided to plead guilty.
The case is one of five in which the Justice Department has provided a criminal defendant with notice of warrantless wiretapping since officials decided last year to change the policy on disclosing such information, according to the American Civil Liberties Union.
The ruling, issued on Friday, will allow Hasbajrami to challenge the surveillance, though Gleeson warned he was not expressing any view on the merits of that argument.
The monitoring is authorized under a 2008 law that allows the government to collect communications without a warrant between Americans and foreign citizens abroad who are intelligence targets. The program began under former President George W. Bush and ended in 2007 before Congress revived portions of it the following year.
Last year, the Justice Department determined that criminal defendants should be notified of such evidence, according to court filings.
Attorney Charles Ware is a Maryland-based defense law firm with a premier national criminal defense law practice. For an initial courtesy consultation, he can be reached at (410) 730-5016 or (410) 720-6129.
[see, http://www.msn.com/en-us/news/crime/defendant-can-withdraw-us-terror-plea/10-07-2014]
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