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President’s Message Kevin I. Goldberg Dear friends and colleagues,


Reflecting upon the changes that we have seen in the past 12 months, it seems appropriate to take inventory of where we have been and where we are going. We’ve seen an unprecedented amount of change in both the State of Maryland and in the United States of America: the election of President Barack H. Obama, a new Supreme Court Justice nominee, a Montgomery County trial court opinion suggesting that Maryland’s non-economic damages cap no longer applies to most medical malpractice cases,1


and these


troubling economic times just to name a few. Such changes impact our members, our families, our clients and our society as a whole. As an organization of trial lawyers, it is important to step back and evaluate the changes that have taken place, and take inventory of the new challenges, opportunities and responsibilities that we have as a result of the changes we have seen. Insurance companies and big corporations have spent


billions of dollars over the past 30 years on a coordinated public relations campaign to defame trial lawyers and change America’s legal system so that corporations and insurance companies would not be held accountable for their mistakes.2 Tey have done a great job of distorting the truth and disseminating this tort reform propaganda. Teir strategy was successful in that many state legislatures imposed tort reform measures of one kind or another during this time period, and jury verdicts across the country decreased. Even supposed “blue states” like Maryland were successfully targeted by this false propaganda – and as a result, the state has a cap on non-economic damages,3 damages in negligence cases4


virtually no punitive and numerous statutes that


provide defenses and immunities to wrongdoers. To make matters worse, during the George W. Bush Administration, the United States Supreme Court and the Federal Judiciary became notably more


conservative and hostile toward


civil justice issues. Class Action lawsuits were restricted by Congress, punitive damages were limited by the U.S. Supreme


1 In Semsker v. Lockshin, a medical malpractice case, Montgomery County Circuit Court Judge John W. Debelius, III ruled that Maryland’s cap on non-economic damages did not apply to that case. He reasoned that when the Maryland Legislature held its Special Legislative Session in late 2004 it removed medical malpractice actions from the general cap statute. A new cap statute with more restrictive non-economic damages limitations was created during the Special Session, but only for cases that are arbitrated before a Health Claims Arbitration Panel. Terefore, Judge Debelius’s opinion suggests that there currently is no cap for medical malpractice cases filed in Circuit Court in the State of Maryland. For a more detailed examination of this opinion and its potential significance, see p. 9 "Semsker v. Lockshin—An Amended Understanding of the Noneconomic Damages Cap in Medical Malpractice Actions." Te entire Semsker opinion is posted at http:// www.gfmlawllc.com/pdf/SemskerOpinion.pdf.


2 To better understand the propaganda campaign that big business and insurance companies have undertaken see:http://www.commonwealinstitute.org/cw/files/AttackTrialLawyersTortLaw. pdf. Te report concludes that “the tort reform movement is part of a two-pronged effort to influence public opinion and gain political power.”


3 See Courts & Jud. Proc. § 11-108. Te General Assembly initially passed the cap on non-economic damages in 1986. Maryland’s cap statute was expanded in 1994 to clarify that it applied not just to personal injury cases, but to wrongful death cases as well.


4 Owens-Illinois v. Zenobia, 325 Md. 420, 601 A.2d 633 (Md. 1992).


Court, and federal pre-emption proliferated. For those of us who practice in the area of automobile negligence, the past 15 years saw insurance companies embark upon a scorched earth litigation strategy that forced us to litigate many of our smaller cases to conclusion. When coupled with attacks of corporations and insurance companies and the cost of litigating the smaller cases, it became nearly impossible for us to obtain fair compensation for many of our clients.


The Present I have good news to report. Te tide is turning. Maryland


has a Governor and Lt. Governor who truly care about individual rights. In Ralph Tyler, Maryland has an Insurance Commissioner who is willing to listen to Maryland citizens and stand up to the insurance industry when it is necessary to do so. Te Maryland Association for Justice has learned from past experiences, and we have implemented a new strategy for public relations and disseminating our message. Whereas in the past, when there were unfair attacks on trial lawyers and the public justice system, we would merely wait for the bad news to go away, we now fight back, tell the truth and call attention to the dishonest rhetoric of the enemies of civil justice. Immediate Past President Wayne M. Willoughby initiated this strategy last year under his term and it is one we continue today. Te changes we have seen in the last year include the


election of a new President of the United States, Barack H. Obama, who brings a fresh outlook not only to domestic policy and foreign policy, but also civil justice issues as well. He will appoint fair-minded individuals to the federal judiciary, and he will most likely have the opportunity to appoint several new Justices to the United States Supreme Court in addition to his recent nominee, Justice Sonia Sotomayor. Hopefully with the Obama Administration we will see a Food and Drug Administration (FDA) that will take seriously its responsibility to protect consumers from dangerous drugs, contaminated food, and dangerous medical devices. I am hopeful that our Consumer Product Safety Commission (CPSC) will do its job properly and increase protection for our families and children from dangerous products including toys made with lead paint. I am hopeful that our Securities and Exchange Commission (SEC) will enforce the United States’ Securities laws and ensure that criminals like Bernard Madoff and Kenneth Lay are not able to defraud investors with impunity. I am confident that the Obama Administration will work with Congress to give these agencies the tools they need to make our society a safer place to live. Another significant change we have seen in the past 12


months is the sharp downturn in our economy – in the past 3


Trial Reporter / Summer 2009


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