Maryland Accident Law Blog

Sheriff’s Deputy Not Liable in Maryland Stun Gun Death, Jury Says

April 4, 2012 | Lebowitz & Mzhen

A federal jury in Baltimore returned a verdict in late January in favor of former Sheriff’s Deputy Rudy Torres, finding that he was not liable in the 2007 death of 20 year-old Jarrel Gray. While responding to a report of a fight, Torres used his electric stun gun on Gray twice. Gray died while waiting for an ambulance at the scene.

In the early morning of November 18, 2007, multiple people in a neighborhood just south of Frederick called police to report a fight. Torres responded to the call. One witness said he heard someone say “Get on the ground” and then heard a “pop noise” he recognized as a stun gun. Another witness at trial said that Gray was complying with Torres’ instructions when he used the stun gun the first time. A witness testified that he heard Gray say that his hands were on the ground.

After the first shock from the stun gun, Gray reportedly fell to the ground and did not move. He reportedly had his hands on the ground in front of him. Torres used the stun gun on Gray a second time, which Gray’s family’s attorney called “sadistic.” All parties agree that Gray was already dead by the time the ambulance arrived. The medical examiner reported that Gray died from “sudden death associated with restraint and alcohol intoxication.” According to Baltimore’s CBS affiliate WJZ, the medical examiner did not specifically identify the stun gun as the cause of death, but the stun gun was the only means of restraint included in the report.

Gray’s parents sued Torres, the Sheriff’s Department, and Frederick County for wrongful death. They alleged that Torres used excessive and unnecessary force. The suit demanded $145 million in damages.

A trial occurred in January that only addressed the Grays’ claims against Torres. Another trial against the sheriff’s office and the county may proceed at a later date. Torres argued that the use of force was reasonable and necessary under the circumstances. He testified that Gray had his hands in his pants and was behaving erratically, although other witnesses reportedly contradicted that account. Torres said that the second use of the stun gun was necessary because Gray refused to show his hands.

A “law enforcement expert” retained by Torres’ defense team testified that Torres was reasonable in viewing Gray as a threat both times he used the stun gun. The expert reportedly told jurors that Gray’s lack of response after the first shock could have been an act.

The jury returned a verdict in favor of Torres on January 25, 2012. According to CBS News, the jury concluded that although Torres assaulted Gray, his use of the stun gun was a reasonable use of force to defend himself or others. Because they concluded that Torres used a reasonable amount of force, he was shielded from liability.

After Accidents, Auto Safety Advocates Push for Federal Regulation of Car Rental Industry

March 28, 2012 | Lebowitz & Mzhen

A tragic 2004 car crash has led to calls for federal legislation and regulation of the rental car industry. Two sisters, Raechel and Jacqueline Houck, 24 and 20 years of age respectively, rented a PT Cruiser from an Enterprise Rent-A-Car in Capitola, California. The car was under recall at the time because of a problem with its power-steering, but the rental company had not performed any repairs. Since the issuance of the recall, it had reportedly rented the car to three other people before the Houcks. The power-steering fluid began to leak while they were driving, and it caught fire. This caused them to lose control of the car. Their car collided with a semi trailer, killing both of them. Enterprise admitted to liability, and a jury awarded $15 million in damages to the Houcks’ mother, Cally Houck, two years ago.

In an effort to prevent accidents like this one, which resulted from a failure to perform necessary repairs on a recalled vehicle, several United States senators introduced the Raechel and Jacqueline Houck Safe Rental Car Act of 2011. This law would have granted regulatory authority to two federal agencies to ensure that rental car companies performed repairs on any vehicles in their fleets under recall before renting them to consumers. The Federal Trade Commission (FTC) would be able to regulate the industry using existing deceptive trade practice laws, and the National Highway Traffic Safety Administration (NHTSA) would be able to track and monitor safety features in vehicles rented to the public.

Under current law, the NHTSA can require auto manufacturers to repair vehicles under recall before distributing them to dealers. Dealers that sell new vehicles must also perform recall repairs before selling to consumers. None of these laws currently cover rental car companies, although they are reportedly the continent’s largest purchaser of new cars and supplier of used cars.

Out of the 1.6 million vehicles owned by American rental car companies, almost 184,000 were subject to a recall in 2011, according to USA TODAY. Toyota issued a recall in 2010 that affected around twenty-two percent of the total number of rental cars in the country. The main trade group representing rental companies told USA TODAY that the industry has a better track record for recall repairs than most vehicle owners. Still, the industry operates with almost no oversight, which concerns some safety advocates, and even some in the industry itself.

Energy Drinks Allegedly Cause Maryland Teen’s Death from Caffeine Toxicity

March 21, 2012 | Lebowitz & Mzhen

Fourteen year-old Anais Fournier, of Hagerstown, was at the mall with friends on December 16, 2011. Her friends told the Record Herald that Fournier drank one 24-ounce energy drink that day, and that she drank another one less than twenty-four hours later. On December 17, she went into cardiac arrest. Doctors at a Baltimore hospital induced a coma to prevent her brain from swelling, but six days later, she died, having never regained consciousness.

Fournier’s death certificate lists “cardiac arrhythmia due to caffeine toxicity” as her official cause of death. She reportedly suffered a complete lack of oxygen to her brain when she lost consciousness. Fournier had a heart condition that can cause heart valve malfunctions. Doctors did not directly connect her heart condition to the arrhythmia that caused her death, but heart conditions are among the risk factors in scientific studies of energy drinks.

The forty-eight ounces consumed by Fournier reportedly contained 480 milligrams of caffeine, which according to TODAY Health is almost five times the limit that the American Academy of Pediatrics recommends, and roughly equal to the amount of fourteen 12-ounce cans of Coca-Cola. Many beverages marketed as “energy drinks” contain ingredients like guarana and taurine that themselves contain caffeine, as well as high levels of sodium and sugar. The Record Herald reports that doctors advise parents to keep such energy drinks away from children, citing potential side effects like high blood pressure, seizures, and even death. Energy drinks can be especially dangerous for people with diabetes, high or low blood sugar, or heart conditions.

Fournier’s death has led her family, friends, and others to call for regulation of energy drinks by the U.S. Food and Drug Administration (FDA). Energy drinks are reportedly categorized as “nutritional supplements,” and so are not subject to the FDA’s limit of 71 milligrams of caffeine per 12 ounces in soda. They are also not subject to the FDA’s safety testing and labeling requirements. A press release from the American Beverage Association, issued about a month before Fournier’s death and quoted by the Record Herald, alleged that energy drinks have FDA approval, and that they contain less caffeine than a typical cup of coffee. While an 8-ounce energy drink contains between 60 and 100 milligrams of caffeine, according to the press release, a similar amount of coffee contains between 104 and 192 milligrams.

Fourth Circuit Apportions Damages Pro Rata in Maryland Lead Poisoning Case

March 14, 2012 | Lebowitz & Mzhen

A Baltimore girl’s $2 million jury verdict for toxic exposure to lead paint suffered a setback last month, when the Fourth Circuit Court of Appeals ruled that the insurance company for the realty company that owned the house where she lived would only be obligated to pay forty percent of the total judgment. She still stands to receive a substantial sum of money, but the court’s ruling cuts the amount she may realistically expect to collect.

Lakia Roberts lived at a house in Baltimore from 1991 to 1998. When she was only twenty months old in 1992, doctors diagnosed her with lead poisoning. She continued to exhibit elevated levels of lead in her blood until 1995. Lead poisoning can have serious health effects on children, including learning disabilities and kidney damage, according to the National Institutes of Health. Roberts and her mother filed a state lawsuit against Attsgood Realty Company in 2005, claiming that the company’s negligent management of the property where they lived caused her lead poisoning.

As we previously reported in this Maryland Accident Law Blog, a jury awarded Robert $2 million in 2009, consisting of $500,000 in actual damages and $1.5 million in non-economic damages. Due to a Maryland law that caps non-economic damages at $350,000, her total judgment was reduced to $850,000.

Attsgood had sought defense and indemnification from its liability insurer, Pennsylvania National Mutual Casualty Insurance Company, commonly known as Penn National. The company had issued an insurance policy to Attsgood with one year of coverage beginning on January 13, 1992, later extended by another year. Attsgood did not have liability coverage on the property before this date. Attsgood sold the property on November 1, 1993. The policy with Penn National stated that it would pay damages for bodily injury and property damage occurring during the term of the policy.

After the jury verdict in 2009, Penn National sought a declaratory judgment in federal court holding that it was only obligated to pay at most $340,000, that being forty percent of the judgment against Attsgood. It argued that, since Roberts’ claim was for ongoing damages occurring from her birth on January 17, 1991 until August 1995, when the lead in her blood reached normal levels, it should only be obligated pay pay for the damages that occurred after its coverage began on January 13, 1992 and before Attsgood sold the property in November 1993. Roberts argued that Penn National should be obligated to pay the full amount of the judgment.

Maryland Teen Dies After Falling from Moving Vehicle, Mother Blames Alcoholic Beverage Manufacturer

March 5, 2012 | Lebowitz & Mzhen

A Maryland teenager died the evening of Saturday, February 18, 2012, when he fell from a moving car and was struck by another vehicle. Michael Truluck, age 13, had allegedly consumed an energy drink containing alcohol earlier in the evening with friends. He was reportedly feeling sick, and his friends said he had vomited twice when his mother’s fiance came to pick him up. During the ride home, he reportedly removed his seat belt and opened the car door, while the car was in motion, in order to vomit again. He fell out and was struck by a Ford Explorer. Police have said they will not file charges against the driver of the Explorer.

Initial news reports indicated that the boys were drinking Four Loko, an alcoholic beverage once marketed as an energy drink. Subsequent reports from the Associated Press said that it was not clear exactly what drink they were consuming. Police were also not sure who provided them with the drinks, although they suspect an adult in the neighborhood. Truluck’s mother has stated that she believes the drink caused her son’s death by making him so ill that he lost control of his actions. She told the Baltimore Sun that she believes he was so sick because of the drink that he was not aware of anything except the need to vomit. She is now speaking out against underage drinking.

The beverage marketed as “Four Loko” has already had a controversial history. The U.S. Food and Drug Administration (FDA) issued warnings that mixing caffeine or other chemicals often used in energy drinks with alcohol posed a number of health risks. It can prevent a person from full awareness of their own intoxication because the caffeine or other supplement masks the direct effect of the alcohol, but the person is nevertheless impaired. The FDA called this a “wide-awake drunk” effect. Four Loko’s manufacturer, Phusion Projects, reportedly reformulated the drink in 2010 to remove caffeine, but it continued to include alcohol in the formula. Some states banned the sale of the drinks when several college students died after allegedly consuming Four Loko.

The family of a teenager in the D.C. area who died in a car accident after allegedly drinking Four Loko filed suit against Phusion in 2011 fro wrongful death, alleging that the company was negligent in producing a drink that “desensitizes users to the symptoms of intoxication,” thus increasing the risk of injury. His death occurred a few weeks before Phusion announced its reformulation.

Family of Maryland Man Who Died in Police Custody Dismisses Suit Against Police, May Still Sue Hospital

February 27, 2012 | Lebowitz & Mzhen

Police went to the Greenbelt, Maryland home of Lynda Sheppard on the morning of May 26, 2010 with an arrest warrant for her son, Michael Mang. Sheppard had a protection order against her 41 year-old son and had requested a warrant for his arrest, saying he had threatened and assaulted her. Police arrested Mang, and hours later he was dead.

Police allegedly entered Sheppard’s house that morning, woke Mang, and then hit him and tasered him. Mang reportedly suffered bruising, a broken nose, and a broken rib.

Police took Mang to the hospital, where he was reportedly alert and cooperative. After several hours, though, Mang began to complain of chest pains and allegedly requested a cardiac examination. Instead, the hospital allegedly released him to police. He was reportedly held at the hospital from 5:37 a.m. to 9:20 a.m., when police took custody of him and took him to the police station. They found him lying unconscious in the station’s processing area at about 9:55 a.m. and returned him to the hospital. He was reportedly pronounced dead at the hospital at around 10:46 a.m.

An investigation by the medical examiner found evidence of alcohol consumption, but no drugs. They also found marks on his lower back that resembled taser marks. The medical examiner concluded that Mang died of natural causes stemming from a heart condition. He reportedly had a coronary blockage that raised suspicion of a heart attack.

Sheppard filed a federal lawsuit in July 2011 against the city of Greenbelt, alleging that the arresting officers caused Mang’s death by using unnecessary and unreasonable force in arresting him. The petition detailed Mang’s injuries and the timeline of events leading up to his death. She demanded $10 million in damages.

The city denied any connection between Mang’s injuries and his death. An internal police investigation concluded that the arresting officers used appropriate force against Mang because he fought back. The city’s attorney told the Greenbelt Patch that Mang’s injuries could simply have been the result of fighting with police.

Sheppard dismissed the lawsuit without prejudice on February 15, 2012. “Without prejudice” means that she can re-file the claim within the original statute of limitations. The Greenbelt police chief described the suit as frivolous and said that the internal investigation vindicated the city’s defense to the suit, that Mang’s injuries at the hands of police did not cause his death.

Four Die in Car Crash in Anne Arundel County, Maryland

February 20, 2012 | Lebowitz & Mzhen

A tragic head-on collision in the early hours of Saturday, January 28 took the lives of four people on a highway south of Crofton, Maryland. A Chrysler Sebring sedan driven by a 19 year-old with two teenage passengers was heading the wrong way on eastbound U.S. 50. The recent high school graduates were going home after a birthday party. A BMW driven by a 55 year-old warehouse manager was going east on the same road. Its driver was also going home after dinner with friends in Virginia. The cars collided at about 3:30 a.m., causing the Sebring to catch fire. The three teenagers were pronounced dead at the scene, apparently dying on impact. The other driver died in the ambulance and was pronounced dead at the hospital.

Investigators think the Sebring may have crossed a median to turn around or taken an exit ramp the wrong way in order to head west in the eastbound lane. This suggests that they were going the wrong way for almost five miles before the crash. Multiple other drivers reportedly called 911 in the moments before the crash to report a car going the wrong way on the highway. At least one 911 caller suggested that the driver did not know she was going the wrong way after he narrowly avoided colliding with the car.

A preliminary toxicology report released on January 31 showed that both drivers had blood alcohol content (BAC) above the legal limit of .08 percent, although police did not state the precise amount found in the tests. Police also said they found a small quantity of marijuana in the teens’ car. Police still have not issued any statements as to the reason why the Sebring was traveling the wrong way on Route 50 or how it got into that lane.

Paralyzed Construction Worker Receives One of the Largest Workers’ Compensation Settlements in History After a Long Fight

February 13, 2012 | Lebowitz & Mzhen

A former Pennsylvania road worker who was paralyzed by a drunk driver as he directed traffic has reached a workers’ compensation settlement agreement for $3 million. This is believed to be one of the largest settlements in the U.S. In getting to this point, he has also gone through a Dram Shop Act lawsuit and a bad faith insurance claim.

Joseph Tuski was directing traffic on January 17, 2001 in Warminster, Pennsylvania. At about 10:30 a.m., a car driven by Michael Petaccio struck him. Petaccio reportedly sped around a line of cars Tuski had stopped, hitting Tuski and throwing him about sixty feet. The accident rendered Tuski a quadriplegic, and he must spend the rest of his life in a wheelchair with 24-hour care. Petaccio had reportedly just left the Ivyland Cafe, a bar in Warminster owned by Petaccio’s family where Petaccio was the manager. Petaccio pleaded no contest to driving under the influence and aggravated assault later that year, and he was sentenced to three years in prison but received work release.

Tuski first filed suit against Petaccio and the Ivyland Cafe, claiming negligence and Dram Shop Act liability. Dram Shop Acts hold businesses who serve alcohol to visibly intoxicated individuals liable for damages subsequently caused due to that person’s intoxication. Tuski presented evidence that, at the time, he had $1.6 million in medical bills and future medical expenses of at least 12 million. A Philadelphia jury awarded Tuski an enormous but largely symbolic verdict in 2004 totalling $75.6 million in damages. This included $50.6 million in compensatory and $25 million in punitive damages, but neither defendant had the ability to pay such an amount. Petaccio only had $100,000 in liability insurance coverage, while The Ivyland Cafe had coverage of $1 million.

After the verdict, the bar lost its appeal, although a judge cut the jury’s award in half. The bar’s insurer then reportedly refused to pay the policy limits of the award. Tuski sued the insurance company for bad faith refusal to pay a claim. Although a plaintiff in an injury case has no direct relationship with a defendant’s insurer, since the insurance company’s obligation to pay is based on a contractual relationship with the defendant, many states allow a plaintiff to pursue an insurer for payment of a specific award. In this case, the bar assigned its rights under its insurance contract to Tuski. In June 2007, Tuski reached a settlement with the insurance company for $20 million.

Medical Malpractice: A Surgeon’s Perspective

February 6, 2012 | Lebowitz & Mzhen

An article in a recent issue of General Surgery News, a trade publication for surgeries, examines the impact of medical malpractice litigation on general surgeons and several specialty areas of surgery. The article looks at recent statistics and discusses the merits of fighting malpractice lawsuits versus settling them quickly. It concludes that doctors are usually better off, in the long run, fighting lawsuits. The analysis tends not to be favorable towards medical malpractice plaintiffs and their attorneys, but it does offer a good glimpse of how surgeons might approach a malpractice claim.

A recent survey by the American Medical Association reportedly found that five percent of respondents had faced a malpractice claim of some sort during the previous year. Another study published in the New England Journal of Medicine in 2011 found that, after neurosurgeons and thoracic surgeons, general surgeons have the next-highest rate of malpractice claims. The study reviewed twenty-four surgical specialties. In an average year, it found that 15.3% of general surgeons will have at least one claim brought against them.

Doctors rarely have the exclusive authority to decide whether to settle a case, as a doctor’s malpractice insurance carrier will typically handle the expense of legal representation. The author of the article advises surgeons against settling in most cases. He notes that, first and foremost, settlement can be interpreted as an admission of fault, even if the settlement’s purpose is to avoid even costlier litigation. Many settlement agreements include a clause specifying that the defendant does not admit liability, but settlement agreements do not get publicity beyond the parties to a dispute. Settling a lawsuit can also lead to problems further down the road, as the board of medicine of a doctor’s state may wish to review the matter itself, and the doctor’s name may appear in databases that catalog malpractice claims.

Of particular note to personal injury attorneys is the discussion of how surgeons can avoid lawsuits. There is little to no correlation, the article states, between the degree of risk in a surgical procedure and the rate of malpractice claims. In other words, riskier procedures are not necessarily at the greatest of a claim. Rather, it is a matter of the doctor’s relationship with the patients and the patient’s family. The better the communication between patient and doctor, the less likely the patient is to claim malpractice.

Dentist Pleads Guilty to Medicaid Fraud, Using Paper Clips Instead of Dental Supplies

January 30, 2012 | Lebowitz & Mzhen

A former Massachusetts dentist, Michael Clair, pleaded guilty to Medicaid fraud and a number of other charges stemming from allegations that he used paper clips while performing root canals instead of the stainless steel posts normally used. He will serve one year in jail. Medicaid reportedly suspended the 53 year-old dentist in 2002, but he continued to file claims under different names belonging to other dentists in his practice until 2005. Massachusetts suspended Clair’s dentistry license in 2006, and he is reportedly not currently licensed to practice in any state. He has resided in Maryland for several years.

Numerous patients also reported infections, pain, and other problems stemming from his treatments. One patient, a teenager, had to have his tooth removed after a root canal performed by Clair in 2005. The tooth turned black and caused him severe pain. The teen’s mother claimed that Clair also performed shoddy dental work on her other children.

Prosecutors accused him of defrauding Medicaid of around $130,000 for his claims made using other dentists’ names. They also charged him with assault and battery in connection with his root canal procedures and other practices, illegally prescribing medications, and witness intimidation. Clair reportedly pleaded guilty to all or most of the charges. Prosecutors had asked the court for a sentence of five to seven years. The judge sentenced him to one year in prison, citing Clair’s guilty plea and willingness to accept responsibility, his lack of a prior criminal history, and “certain mental health issues.” The judge did not elaborate on that last factor. Clair will serve his sentence at the Bristol County House of Correction in North Dartmouth, Massachusetts.

Clair’s use of paper clips in root canals is a particularly egregious breach of the trust placed in dentists by the law and by society in general. Dentists, just like medical doctors and other medical professionals, undergo a considerable amount of training and education. As a result, they are entrusted with a great deal of responsibility over their patients. A dentist has a duty to provide diligent and competent service to all his or her patients, and to obtain informed consent for all treatments and procedures. A root canal, known more formally as endodontic therapy, is a complicated procedure. Few laypeople understand how the procedure works, and tend to trust dentists to perform the work. Using common items like paper clips in the procedure in place of specially-designed materials intended for the procedure puts patients at unreasonable risk of infection and worse. This is a clear breach of a dentist’s duty of care.