Posted on February 10, 2009 in Controlled Dangerous Substances (CDS)

According to a Fox News report, eight people have been arrested today in South Carolina in connection with the Michael Phelps bong photo. It is being reported that seven of the people are being charged with possession of marijuana and one for dealing. One of the arrests includes a suspect who was trying to sell the infamous bong on Ebay for $100,000.00.

Apparently, the marijuana was smoked at a University of South Carolina party in November of last year. Putting aside my personal feelings on whether this is a prudent use of our law enforcement resources, from a legal standpoint, this case is a disaster that can never survive in court.

As a criminal lawyer that has been involved in the prosecution of over 3000 drug cases, I have yet to see a charge, let alone a conviction, on possession of a controlled dangerous substance based upon a photograph of someone allegedly ingesting a controlled substance.

The way it always works is the police seize a drug, the drug is tested by a crime lab, the analysis is submitted in court as evidence. No chance of a conviction here, period, based upon the information reported.

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 Posted on February 10, 2009 in Infection Malpractice

Every year in the United States, approximately 5% of patients admitted to hospitals develop hospital acquired infections (Staph, MRSA, etc.). A hospital acquired infection is one that is caused by just being in the hospital. Such infections double the rate of mortality for admitted patients, and it a leading cause of death in this country.

There has been a lot of talk lately about efforts to reduce the number of hospital acquired infections, which generally start in the tubes and catheters inserted into the body. Today, there was a great article in the Washington Post about one doctor’s initial skepticism that these infections could be prevented, and his eventual realization that these infections can largely be prevented. This doctor was skeptical when his hospital joined the quality improvement initiative led by the Institute for Healthcare Improvement, a nonprofit founded by Harvard pediatrician Donald Berwick. By looking at the process, measuring the results, providing feedback to key people and developing strategies to improve the care of their patients, they made checklists to ensure that certain procedures were followed to prevent hospital acquired infections. These were procedures similar to what intensive care units in Michigan did to reduce bloodstream infections to nearly zero.

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 Posted on February 10, 2009 in Automobile Accident

A jury in Howard County, Maryland recently awarded a woman $188,000.00 for injuries she sustained as a car accident victim traveling in a co-workers vehicle, according to an article appearing in todays Dailty Record. Experienced Maryland Accident Attorneys can help victims injured in automobile accidents recover for their injuries. If you are having trouble dealing with your or the other drivers insurance company, an experienced attorney can help you navigate the judicial process to maximize your recovery.

After a two-day damages trial, Sandra Jenkins, a 45-year-old network analyst for Verizon Wireless, won $48,000 for medical expenses due to her neck injury, $8,000 for loss of income for the more than three months she could not work, and $132,000 for pain and suffering. The Jury ultimately awarded Ms. Jenkins $188,000.00 after the Insurance company made a lowball offer of $32,000.00.

Oftentimes, insurance companies refuse to pay accident victims the true value of their claims. This is where an experienced accident attorneycan help injured Maryland car accident victims receive a large settlement or jury verdict.

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 Posted on February 09, 2009 in Copyright Infringement

As a trial lawyer, I have successfully handled several copyright infringement cases representing both the plaintiff and the defendant. Although these types of cases involve an area of the law that most people and lawyers are not familiar with, it really is not that complicated once you sink your teeth into them.

Generally, copyright protects the original works of authorship fixed in any tangible medium of expression, including: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.

Copyright protection of an original work of authorship does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. The term “literary works” is not meant to suggest any criterion of literary merit or qualitative value, rather the term has been broadened to include catalogs, directories, and similar factual, reference, or instructional works and compilations of data. It also includes computer data bases, and computer programs to the extent that they incorporate authorship in the programmer’s expression of original ideas, as distinguished from the ideas themselves. Also, “Advertisement Copy” is considered “Literary Works.”

To establish copyright infringement, plaintiff would have to prove both the ownership of a valid copyright and copying by the defendant. In order for Winn’s to be copyrightable, the mailer must be deemed “original,” or as elaborated by the Supreme Court: “[o]riginal, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.”

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 Posted on February 08, 2009 in Automobile Accident

The Baltimore Sun is reporting very sad news coming out of Westminster this morning. Apparently a driver of a Ford pickup truck slammed into the rear of a Chevrolet Cavalier that was full of McDaniel College students around 11:00pm yesterday. The 19 year old student, Thomas Rouleau, of Gilboa, N.Y., died at the scene. Four other students were in the car, three of which were taken to University of Maryland-Shock Trauma. Fortunately those injuries were not life threatening and they were released.

Our hearts go out to the family and friends of Mr. Rouleau, who apparently was not responsible for this accident. It is reported that this was the second accident in a matter of minutes the driver of the Ford pickup had caused and fled. Sadly in these situations, experience shows that their is a strong possibility the hit and run driver may have been under the influence of alcohol or drugs. Hopefully the police will find the driver today and bring him/her to justice. Just by leaving the scene of an accident involving death, the fleeing driver is subject to a penalty of up to ten years in jail. Additional charges may be warranted.

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 Posted on February 07, 2009 in Products Liability

In a shocking revelation, the FDA confirmed yesterday that the Georgia peanut company linked to the salmonella outbreak knowingly shipped products it knew were laced with the contamination. Apparently the company had confirmed contamination as far back as 2007, according to an AP article appearing in today’s Baltimore Sun.

From a legal standpoint, this revelation may open the door to the recovery of punitive damages against the Georgia company and its officers. In addition, criminal charges are likely to be closely examined. The Justice Department has confirmed opening a criminal investigation. The salmonella outbreak has been blamed for at least eight deaths and 575 illnesses in 43 states.

Problems at the plant date back to 2001 when FDA inspectors found that products potentially were exposed to insecticides, “one of several violations uncovered during the last visit federal officials made before the current food-poisoning scare, according to a report obtained by The Associated Press” the Baltimore Sun reports.

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 Posted on February 06, 2009 in Proof

In Maryland, DUI/DWI Attorneys are often confronted with cases in which a client was found not to be driving while impaired or under the influence, but instead was found to be sleeping in his or her vehicle while under the influence of alcohol. This situation implicates the so called “shelter defense” in Maryland. Unlike in some other states, Maryland legislators have chosen not to make sleeping in one’s vehicle an absolute defense to DUI/DWI charges. Some states have decided that as a matter of public policy, they want to encourage people who are driving under the influence to pull over and “sleep it off” so to speak, rather than continue to endanger the public by continuing down the road while under the influence. In these States, it matters not where the person was parked, how long they had been there or whether or not they admit to driving the vehicle to the location while under the influence. If the person made the decision to pull over and park their car rather than continue to drive under the influence, they simply may not be prosecuted for DUI/DWI in these states. Not so in Maryland.

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 Posted on February 06, 2009 in Products Liability

There are many defective product cases which cause serious personal injury or death. Often, fire or explosion may cause such significant damage to the product that the actual specific cause for the accident can not be determined. The first example to come to mind is an airplane exploding into a million pieces. We know that this is not supposed to happened and that something obviously went wrong. The problem for the lawyer representing victims is how to prove it? Often times, when no physical evidence is preserved in a products liability case, the victim’s lawyers may be forced to rely on the “Indeterminate Defect Theory” . I have done significant research in this area and hope that the legal analysis below will help others similarly situated.

As a threshold matter, in a Maryland product liability action, proof of a defect must arise above surmise, conjecture or speculation, and a plaintiff may not base recovery solely on any presumption that might arise from the happening of an accident. See International Motors, Inc v. Ford Motor Co., 133 Md. App. 269, 275 n.7, 754 A.2d 115, 118 n. 7 (2000). Notwithstanding the above, an inference of a defect may be drawn from the happening of an accident where circumstantial evidence tends to eliminate other causes, such as product misuse or alteration; i.e., an indeterminate defect. The first case in Maryland to address this circumstance was Harrison v. Bill Cairns Pontiac, 77 Md. App. 41, 549 A.2d 385 (1988). The Harrison Court found that the five factors to be considered when determining whether a product defect may be inferred include:

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 Posted on February 06, 2009 in Products Liability

In Maryland, liability of a lessor may NOT be imposed in a tort action via the doctrine of strict liability. Bona v. Graefe, 264 Md. 69, 285 A.2d 607 (1972). Restatement (Second) § 402A, quite simply, is not applicable to lessors.

Section 402A states:

(1) One who sells any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his
product, and (b) the user or consumer has not bought the product from or entered into any
contractual relation with the seller.

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 Posted on February 05, 2009 in Breathalyzer

Breathalyzer machines, commonly used by Maryland police, detect and measure the alcohol present in air that is breathed out. During the consuption of alcohol, the alcohol crosses from the intestine into the bloodstream. When the blood circulating around the body gets to the lungs, some of the alcohol in the blood crosses into the air contained in the tiny sacs of the lungs. This same air, that is breathed out of the lung, contains alcohol that can be measured by breathalyzer machines.

Researchers have determined the ratio of breath alcohol to blood alcohol. The test result for a breathalyzer estimates the concentration of alcohol in the blood. Although different individuals have some variation, blood alcohol concentration (BAC) is approximately 2,300 times greater than breath alcohol concentration. Breath-alcohol analysis is fast and easy to use, unlike the more reliable blood test. This makes the Breathalyzer breath-test machine a useful tool of choice for Maryland police to monitor drunk drivers.

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