Maryland Accident Law Blog

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.

Maryland Traffic Cameras Seek to Deter Speeding, Promote Safe Driving

January 23, 2012 | Lebowitz & Mzhen

To combat decreases in revenue from the state and county, the town of Takoma Park, Maryland has turned to traffic cameras as a source of city funding. City officials maintain that their main purpose is to promote driving safety. The city has installed at least six cameras at major intersections. Locations were chosen, the city says, based on the prevalence of past speeding offenses. Between July 1, 2010 and June 30, 2011, the city reportedly collected almost $1.74 million in traffic fines from tickets issued through camera evidence. After administrative costs paid to the vendor that manages the system, the city’s net revenue was $898,018. Maryland law requires that money obtained from traffic camera citations go solely towards public safety projects.

The city issued 6,530 tickets for violations captured by the cameras between October 1 and November 22, 2011. Not all tickets are paid, of course, but the system has apparently given the city a much-needed boost in revenue.

Despite any possible concerns over enforcement of criminal issues, the effect of the cameras on public safety, according to city officials, has been profound. Takoma Park Police Chief Ronald Ricucci told Gazette.net that the city’s two main “target areas,” New Hampshire Avenue and University Boulevard, have seen reductions in auto and pedestrian accidents since the city began using the cameras. It is not entirely clear how the cameras could improve driving safety while also increasing revenue from speeding tickets, unless a reduction in auto accidents is not directly related to the amount of speeding in those locations.

The cameras may prove to be useful when traffic accidents do occur, as a source of evidence. Traffic cameras typically take a photograph of an intersection or stretch of road with a wide enough angle to capture a vehicle and its surroundings, but also with enough detail to see features like license plates numbers. Images from the cameras could assist in resolving disputes over whether a driver ran a red light, which driver had the right of way, whether a driver made an improper merge, and so forth. This is still a new technology, especially in our legal system, which is slow to adapt to many new technologies. As such, evidence rules and court procedures are still adapting to this new type of evidence.

Elderly Man Sued by Passengers of the Thief Who Stole His Car

January 9, 2012 | Lebowitz & Mzhen

George Hinnenkamp was probably not having a very good day. The 89 year-old left his house to travel to nearby Lorane Valley, Oregon one day in June 2009. When he returned home later the same day, he found that his 1991 Thunderbird was not where he left it. He reported it stolen to the police and, at 10:30 p.m., learned from them that the person who took his car had crashed it while under the influence of alcohol. The car thief, 35 year-old Joseph Dinwiddie, had done occasional odd jobs for Hinnenkamp in the past. As attorneys, people often ask us if they can be sued for one thing or another. As this case demonstrates, people can file lawsuits against almost anybody, but the case must have merit to survive.

Prosecutors charged Dinwiddie with unauthorized use of a motor vehicle, driving while intoxicated, reckless driving, reckless endangerment, and two counts of third-degree assault for injuries sustained by two passengers, Nicole Annette Cunningham and Delano Oscar. Dinwiddie’s defense largely relied on the fact that the elderly man had given him permission to drive the Thunderbird in the past when he was working for Hinnenkamp. He argued that he had Hinnenkamp’s permission to use the vehicle the night of the accident. He told police at the time of the accident, however, that he did not have permission from Hinnenkamp, and evidence indicated that the two passengers knew he was intoxicated, even drinking while driving. Dinwiddie was convicted and is now serving a 25-month prison sentence.

The saga did not end there for either Hinnenkamp or Dinwiddie. Two years later, in the summer of 2011, both of them were sued by the two passengers, Cunningham and Oscar, for the injuries they claim to have sustained in the crash. Cunningham is seeking $145,000 and Oscar is asking for $75,000 in damages. Oscar alleges that he suffered various “sprains or strains” in his neck, back, and elsewhere. Cunningham alleges similar injuries, plus pelvic fractures, headaches, dizziness, and more. Their arguments appear to rely on the claim that, since Dinwiddie had driven Hinnenkamp’s car with Hinnenkamp’s permission while working for him in the past, Hinnenkamp could be held liable for Dinwiddie’s actions while driving the car. Hinnenkamp’s insurer stepped in on his behalf and asked the court to declare that he has no liability for the injuries claimed by the plaintiffs.

Legislator Awarded $50,000 in Suit for Damages Caused by Tight Handcuffs

January 2, 2012 | Lebowitz & Mzhen

A Pennsylvania state legislator from Philadelphia, Jewell Williams, has received an award of $50,000 from a jury in a lawsuit over injuries he sustained in 2009 when police unlawfully detained him. He claimed that “excessively tight handcuffs” caused nerve damage to his wrist and thumb. He further claimed that police violated his constitutional rights by detaining him after he questioned police officers about stopping two elderly men. A spokesperson for Williams said the jury agreed with Williams’ constitutional claim. An attorney for the City of Philadelphia told the media, however, that Williams had previously rejected a settlement offer of $65,000. Williams, for his part, may prefer the vindication in court to any specific dollar amount.

Williams has served as the Democratic representative for District 197 in Philadelphia since 2001. He previously worked as a Temple University police officer. He was elected sheriff of the city of Philadelphia in November 2011 and will take office shortly. The lawsuit arose from an incident in March 2009, when Williams says he tried to assist two “elderly constituents” during a traffic stop. Williams alleged that he saw police pull over a gray Volvo that police said resembled a car used in a drug buy several blocks away. Williams witnessed the stop from several car lengths back while driving home, and eventually got out of his vehicle to intervene.

Williams says he watched one police officer order the driver, whom Williams described as elderly and frail, out of the vehicle. The officer placed the man’s money on the hood of the car. When the man tried to grab at the money as it blew away, the officer alleged shoved him against the car and cuffed him. The man then complained that the cuffs were too tight, and the officer allegedly threatened something to the effect of taking the man to the hospital. A passenger in the Volvo, also described as elderly, was detained by the other officer. This is when Williams got out of his car and approached the officers.

Two more officers had arrived at the scene at this point. Williams says he identified himself as a state legislator, but that the officers yelled profanity at him when telling him to return to his vehicle. Police cuffed him and pushed him into the back of one of the cruisers, telling him he was under arrest for disorderly conduct. Police did not find any drugs in the Volvo or on either person from the Volvo. Police released Williams and the other two men shortly thereafter.

Woman Dies in Elevator Malfunction in New York Office Building

December 28, 2011 | Lebowitz & Mzhen

A tragic malfunction in an elevator in Midtown Manhattan has left one woman dead and a city in shock. On the morning of December 14, 2011, 41 year-old Suzanne Hart was entering the elevator on the way to her job at an advertising firm at 285 Madison Avenue. While she had one foot in the elevator, it suddenly lurched upward, dragging her with it. The elevator stopped between the first and second floors, with her trapped between the elevator and the wall. Two other passengers in the elevator were unhurt but trapped there for an hour. Rescuers pronounced Hart dead at the scene, but could not remove her body for several more hours.

No definitive explanation for what happened has appeared yet. Some sort of electrical malfunction may be the most likely culprit, but the incident has had a profound impact on a city dependent on elevators. According to the New York Times, New York City has over 60,000 elevators. There were fifty-three accidents involving elevators last year, but only three were fatal. Hart’s death turned a mundane, everyday activity into something terrifying. Other daily activities, such as driving a car, have known risks and well-publicized dangers, but an elevator ride seems to hold a particular resonance for many people.

The city’s Department of Buildings is conducting an investigation of the incident. The building has remained closed since the day of the accident, but is expected to reopen in January 2012. A spokesperson for the Department said that the accident had raised “structural concerns” for the entire building, an indicator of the force of the elevator’s movement. Transel Elevator, Inc., which services elevators all over the city and acknowledges doing electrical maintenance work on that particular elevator several hours before the accident, is a focus of the investigation. The biggest mystery for investigators, according to CBS News, is why all of the elevator’s safeguards seem to have failed at once. Elevators have safety mechanisms that should prevent them from moving while the doors are open. These mechanisms have several backups, but none of them worked that morning.