Posted on September 29, 2013 in Business Counseling, Litigation & Transactions

There is a critical federal statute that all insurance litigators should be aware of when their case is "removed" from a State trial court to a federal court. Insurance companies often remove State court cases to the federal system to take advantage of what they apparently believe is a strategic advantage. Although this perceived advantage may or may not exist, all aggressive insurance attorneys should know how to fight back.

First, you should know that there is a presumption against federal court jurisdiction. By statute, a federal district court must send any case that lacks subject-matter jurisdiction back to State court. 28 U.S.C. §1447(c). And although a plaintiff usually has only thirty days to object to a defendant’s "removal" of a State case to federal court, an objection based on the federal Court’s lack of subject matter jurisdiction can be raised at any time before final judgment, even in the middle of a trial. 28 U.S.C. §1447(c). Federal courts routinely make thorough examinations of subject matter jurisdiction early in a case in order to avoid wasting resources on a case that ultimately needs to be sent back to State court.

Insurance companies "remove" many insurance cases from the State system to the federal system by alleging that federal "diversity jurisdiction" supports the removal. "Diversity jurisdiction" generally means that the opposing parties are from different States (and that a minimum amount in dispute has been met). A federal district court lacks diversity subject matter jurisdiction when only partial, but not complete, diversity exists. See, e.g., Fekyibelu v. Tolen, 2012 WL 6679452 (D.Md., Dec. 20, 2012).

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 Posted on September 28, 2013 in Complex Civil Litigation

Silverman Thompson lawyers Bill Sinclair and Anna Skelton recently convinced a New Jersey federal judge that he should compel arbitration of their suit, effectively dismissing a federal complaint. The plaintiff, Precision Funding Group, sued its competitor, National Fidelity Mortgage, for alleged interference with contracts and business opportunities (among other business torts). PFG based its complaint in large part on the actions of two former employees who left PFG to work for NFM. In addition to its suit against NFM, PFG initiated arbitrations against its former employees pursuant to a clause in their employment agreement, drafted by PFG, that required mandatory arbitration.

On behalf of NFM, Sinclair and Skelton argued that the federal suit against NFM was essentially the same suit that PFG brought in arbitration against its former employees and the Court should therefore "equitably estop" PFG from proceeding with its Federal claims. After extensive briefing and a lengthy hearing, the Court agreed, finding that even though NFM wasn’t a party to the employment agreements that provided for the mandatory arbitration, it had standing to compel arbitration because its claims were "inextricably intertwined" with those in arbitration.

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 Posted on September 27, 2013 in Business Counseling, Litigation & Transactions

For users of the popular Pandora Internet Radio website, the day the music dies has been delayed for at least a few more years. That’s thanks to U.S. District Court Judge Denise Cote of the Southern District of New York, who earlier this month saved the music service from being stripped of its rights to play songs owned by major record companies Sony/EMI, Warner, Universal, and BMG. It’s a case showing that the ever-shifting legal landscape regarding online music consumption is still in many ways tied to the Golden Age of Radio.

For those who aren’t familiar (and if you’re a music fan, definitely check it out), Pandora works by playing songs that correspond to a general type of music or artist that the user selects. The listener can give positive or negative feedback for each song that plays, allowing the site to narrow its selections to songs that the listener is more likely to enjoy. Along the way, links are provided so that users can easily buy the songs or albums from online retailers. Combined with its popular streaming service and mobile app, this nifty little audio experiment has turned into big business: Pandora reportedly has more than 150 million registered users and is valued at $2.6 billion, having pulled in $427.1 million in revenue is Fiscal Year 2013.

Not surprisingly, the music-publisher bigwigs want to grab that cash with both hands and make a stash. Pandora gets a bunch of their tunes through a five-year blanket license, attained in 2011, with the American Society of Composers, Authors, and Publishers (ASCAP), a performing rights organization. So later that year, Sony/EMI took away ASCAP’s right to license its music to "new media," i.e., money-making Internet innovators such as Pandora. That brought Pandora crawling into the negotiation room, and last year an separate licensing agreement was reached with Sony/EMI. Smelling the blood in the water, Warner, Universal, and BMG then announced that they, too, were yanking ASCAP’s new-media licensing rights. Same old song and dance.

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 Posted on September 23, 2013 in Criminal Defense

Assault Cases are among the most common cases Aggressive Maryland Criminal Defense Attorneys handle. These are among the most serious cases that we see, particularly when the case involves significant injury or a vulnerable victim. The maximum penalty for just misdemeanor Assault, known as Second Degree Assault is a whopping 10 years! Of course people do not often the maximum penalty for this crime, but people are regularly incarcerated for assault cases in Maryland.

I had a case in Baltimore County last week involving a fight between two women. Prison was a distinct possibility for my client in the event of a conviction as the so called victim in the case was both seriously injured and at least claimed to be a vulnerable victim. Here are the facts of the case.

My client is a 35 year old mother of six. She went to a Subway shop last summer to purchase food for her children and herself. According to her version of the events, as she was getting back into her car, an empty soda can fell out onto the pavement. As she got back out of her car to pick it up and throw it away the alleged victim pulled into the parking lot with her 14 year old son in the car. According to my client, the alleged victim called her a white trash littering piece of sh*# and other choice names before she even had as chance to pick the can up to throw it in the trash. The women then got out of the car and a fight commenced.

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 Posted on September 19, 2013 in Medical Malpractice

A recent USA Today investigation has revealed that thousands of doctors who have been banned by hospitals or other medical facilities are not punished by their state medical boards. Many of these sanctions were due to medical malpractice. A copy of the report can be found here.

For the investigation, reporters looked at data from the National Practitioner Data Bank, which is a federal repository that helps medical boards track physicians’ license records, malpractice payments and disciplinary actions imposed by hospitals, HMOs and other institutions that manage doctors. By law, reports must be filed with the Data Bank when any one of the nation’s doctors faces "adverse actions" and the reports are intended to be monitored closely by medical boards.

The research showed:

• From 2001 to 2011, nearly 6,000 doctors had their clinical privileges restricted or taken away for misconduct involving patient care – but more than 3,000 either were not fined or never saw their medical license affected.
• Nearly 250 of the doctors sanctioned by health care institutions were cited as an "immediate threat to health and safety," yet their licenses were not restricted or taken away.
• About 900 doctors were cited for substandard care, negligence, incompetence, or malpractice, yet they kept practicing with no impact to their license.
• About 800 of the nearly 100,000 doctors who made payments toward malpractice claims from 2001 to 2011 accounted for 10% of the total malpractice payouts; this means that each of them averaged about $5.2 million payout. Even with this, fewer than one in five faced any sort of license action by a state medical board.

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 Posted on August 08, 2013 in Criminal Defense

It seems that Maryland Criminal Attorneys represent people charged in Domestic Violence Assaults with ever increasing frequency these days. As I have noted in the past, police and prosecutors seem to get more and more aggressive in charging and prosecuting these case by the day. In many of these Domestic Violence Assault cases, the alleged victim refuses to cooperate with the prosecution. Alleged victims will often recant the allegations that they made on the date of the incident, refuse to come to court, even when they have be summonsed or, if the couple is married, invoke the marital privilege and refuse to testify.

There are many reasons why alleged victims do this including that the couple has reconciled their relationship, the defendant is the primary breadwinner in the family which often means if he goes to jail his family is devastated financially, or that the charges were fabricated in the first place. It is hard for some to believe that someone would fabricate charges against another person but unfortunately it happens all the time. And I believe that that is exactly what happened in a case I recently had had in the District Court for Baltimore County. Here are the facts:

In this case my client and his girlfriend got into an argument that, according to the her, became physical. At the time of the offense she claimed, both to the 911 operator and the police who responded, that the defendant had thrown her to the ground, strangled her and hit her several times in the face. The police noted only slight redness to her cheek and a very small amount of dried blood in one side of her nose. She stated that after the assault she left the location with their 3 year old son. She made the 911 call about 15 minutes after that and met the police miles from the scene (and away from the defendant) in a parking lot. She was heard to be crying on the 911 tape but was not hysterical or unable to carry on an intelligible conversation. The officer noted in his report that she was crying, shaking and visibly upset. My client was later arrested and charged with second degree assault. A charge, which while classified as a misdemeanor, carries a maximum penalty of 10 years in prison. Shortly after my client was arrested, the alleged victim had a change of heart and decided not to cooperate with the prosecution. She ignored all attempts by the State to contact her and on the trial date did not show up in court.

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 Posted on August 07, 2013 in Criminal Defense

I am often confronted with clients who want to change lawyers because for one reason or another they have lost confidence in their current attorney. I have blogged about this issue often and usually do so by positing the rhetorical question, "did you hire the right lawyer". I recently confronted this situation with a client who was charged with Second Degree Rape and related offenses. Obviously these are very serious charges that need to be handled by someone who knows what he or she is doing. In addition to facing serious jail time, anyone convicted of a sex offense faces the daunting prospect of being required to register as a sex offender for the rest of his life.

Unfortunately, there are many attorneys who will take on cases such as this one, who simply do not know what they are doing. Needless to say the results can be disastrous for the client depending upon at what point in the process the client determines that he is not be well represented. This particular client figured it out somewhere in the middle. That is, in time to prevent total disaster but not before suffering significant but unnecessary consequences. I have handled scores of sex offenses in my career but never one with facts quite like this one.

My client is a highly educated and successful man who was just north of 40 years old. He was separated from his wife and living alone in an apartment. He went out to have a few drinks one evening. He went first to a bar where he knew the bartender and consumed 2-3 drinks. He then went to a second bar where he met a friend and had a few more. Finally he went back to the first bar and had a final 2 drinks staying until last call. I was able to piece together proof of all of this through messages he sent and received on Facebook, text messages, credit card receipts and through interviews with the witnesses. Through these efforts I was able to prove that he had consumed at least 7 alcoholic beverages that night. This is a vital piece of evidence but I will get back to that shortly.

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 Posted on August 06, 2013 in Criminal Defense

I have often written about the perils of hiring unqualified. Perhaps it is due to the current economic conditions, but I am increasingly seeing attorneys whom I know are NOT criminal specialists handling criminal cases, including serious felonies in the Circuit Court. I think that people who are not experienced in dealing with attorneys think that a lawyer is a lawyer. Nothing could be further from the truth. Like doctors, many lawyers specialize in various areas of the law including criminal defense. It seems like a pretty obvious point that the lawyer specializes in one area is going to develop more expertise in that area than a so called "general practitioner" who often handle cases in as many as a dozen separate areas of the law.

I have in many instances throughout my career been hired by people who have belatedly figured out that their attorney simply did not know what he or she was doing. Sometimes that realization comes before any real damage has been done and sometime only after. Here is a specific case involving domestic violence and handgun offenses that I took over from another lawyer who was in over his head:

My client and his girlfriend got into a very heated argument while driving down the road one day. They pulled the car over and they both got out of the car to continue the argument. During the argument my client’s girlfriend hit him in the head with a hard object causing a laceration to his head and substantial bleeding. Shortly after this occurred, a Maryland State Police Officer pulled up behind the car to investigate why it was stopped on the side of a busy highway in Baltimore County. The police officer saw was my client bleeding rather profusely from the head wound but he did not witness the assault or any other illegal conduct.
In spite of the fact that he did not witness my client assault his girlfriend and the fact that it was he, and not she, that was bleeding, he trooper told my client to turn around and placed him in handcuffs for, as he noted in his report, "officer safety". He then searched the car and recovered a loaded handgun. Only then did he ask the alleged victim what had occurred and at that point she claimed that he had struck her in the face with an open hand. She did not have a red mark or other injury and there was no other evidence of this alleged assault. The Trooper charged my client with domestic violence assault and illegal possession of a regulated firearm. My client was facing a mandatory jail sentence of five years without the possibility of parole because he was previously convicted of a crime of violence, namely second degree assault. Obviously the stakes were very high for this particular client.

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 Posted on August 05, 2013 in Criminal Defense

As an Aggressive Criminal Attorney and former prosecutor with 20 years of experience, I have been involved in the prosecution of hundreds of cases involving the possession and distribution of Child Pornography, on both sides of the aisle. These are very serious offenses that almost invariably result in the incarceration of defendants who are convicted.

Because the Child Pornography is almost always distributed and downloaded from the internet, there is dual federal and state jurisdiction to prosecute these cases. Often the mere threat of a federal prosecution is enough to convince defendants charged in the state system to accept plea bargains because the penalties in the federal system are draconian and mandatory. Anyone charged with these very serious charges needs to immediately retain an experienced criminal defense attorney to represent them. As I said, I have handled many of these cases. Here are the specifics on one I handled recently.

I represented a young man who was charged with various charges related to the possession of child pornography. At the time of the offense, he was 19 years old and had never been in any trouble in his life. He appeared in my office for a consultation after his house was raided by the police and his computer was confiscated. The basis for the warrant was that my client had visited a child pornography site that the police were watching and they traced the IP address from his computer to his residence. At the time of the execution of the search warrant, he was read his Miranda Rights and questioned about the case. He openly admitted that he searched many times for child pornography on the Internet using search terms typically used to search for young gay male pornography images. He admitted that he had used filing sharing programs such as Limewire to conduct the searches but denied that he had ever intended to distribute or share the images with anyone else. He further advised the police that he was only interested in images of post pubescent teenagers (in other words, his peers) and would immediately erase any images of young children captured by the Limewire search. He told the police that he utilized Limewire and other such programs because they allow a person to conduct multiple searches simultaneously, and not to distribute or share the images with other people. He advised that his computer is very old and very slow, so he would punch in the terms and then leave the computer for long periods while it conducted the search.

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 Posted on July 30, 2013 in Medical Malpractice

A recent study in the British Medical Journal Open, The Epidemiology of Malpractice Claims in Primary Care: a Systematic Review, has addressed how often medical malpractice and wrongful death claims filed against primary care physicians worldwide. Authors of the study conducted a systematic search of more than 7,000 medical articles to find data involving medical malpractice trends and studies. Articles were included in the review if they involved at least ten medical malpractice claims based in primary care. Of the 239,756 closed medical negligence claims in the U.S. filed between 1985 and 2008, primary care physicians represented 11% of all claims. Another review of 1,452 claims in the U.S. revealed that primary care ranked third, representing 16% of claims.

The researchers found that the most common medical malpractice and wrongful death claims against primary care physicians involved missed or delayed diagnoses, which accounted for 26% to 63% of all claims. In adults, the most common primary care medical malpractice claims typically involved failing to diagnose cancers of the breast, colon, skin, lung and female genital tract, and myocardial infarction (heart attack). Following these were appendicitis, ectopic pregnancy, and bone fractures. In children, the most frequent missed or delayed diagnoses concerned meningitis and cancer.
Several studies found that these diagnostic mistakes may result from faulty clinical reasoning, misinterpretation of diagnostic tests or system failures, and typically may be a combination of many factors. Overall, medication errors were the second most frequent cause for malpractice claims, totaling between 5.6% and 20% depending on the study reviewed. Several studies highlighted that drug errors often were multifactorial with prescriber, patient and system factors all being contributors.

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