Articles Posted in Maryland Courts

The Maryland Court of Appeals has signed off on some modifications to the Maryland Rules. Of particular interest to both lawyers and clients is new Maryland Rule 16-110. This recent rule addresses the crucial issue of our day of whether you can bring a cell phone into court in Maryland. The short answer is yes. The long answer can be found here on page 18.

The rule also addresses whether jurors may bring electronic devices into the jury deliberation room. The concern is whether the jurors use Google to find information to decide the case or give a shout out to friends on Twitter or Facebook about the case during deliberations. The recent rule is clear that jurors may not take cell phones or other electronic devices into the room during deliberations.

I also thought it was interesting that the new rule states that there is no liability to security or court personnel who lose or damage someone’s phone, presumably after the phone is confiscated. It is a minor thing and I doubt that many phones will be lost or damaged under these circumstances. But, as a matter of principle and policy, I wonder if the Maryland Rules should limit tort liability. My view is that while the Maryland high court may rule the roost of what goes on in Maryland courtrooms, courthouses are not sovereign and tort immunities should not be granted so casually.

Earlier this month, I wrote a blog post about Vermont Senator Patrick Leahy’s proposal to allow retired Supreme Court justices to hear cases to avoid 4-4 splits in conflict situations, an issue that is getting attention because of the conflicts that Justice Kagan has for many pending cases.

The Maryland Court of Appeals has been doing this effectively for years, I wrote in the blog post. But while writing a blog post today on underinsured motorist lawsuits involving State Farm, I looked at the Maurer v. Penn National opinion from the court in 2007. I noticed something in the opinion: four of the judges were retired when the opinion was issued. We all follow Maurer as the law (2013 update: not anymore, the legislature stepped in) but only two of the seven judges currently on the court – Judge Greene and Judge Harrell – took part in this opinion that is not yet three years old.

For those of you who are not lawyers, stare decisis is doctrine the Maryland Court of Appeals has applied with vigor: following prior court decisions unless there are very compelling circumstances. It means that a prior ruling being “wrong” is not alone grounds for reversal. I think every court in the country relies on this doctrine, to varying degrees.

The Maryland Court of Special Appeals interpreted a mandatory fee dispute arbitration requirement for attorney fee disputes in the District of Columbia today.

The issue is whether a personal injury law firm was entitled to 40% of Plaintiff’s recovery or whether the fee increased to 50% because the “Plaintiff prevailed on appeal” clause in the retainer agreement had been triggered. The underlying claim arose from Plaintiff’s injuries, which occurred while Plaintiff was being rescued from a broken elevator at the Marriott Wardman Park Hotel in Washington, D.C. I suspect both the Plaintiff and the Plaintiff’s lawyer were Maryland residents, which triggered Maryland’s involvement in the case.

I’m interested in these cases because it is always interesting to see the fee agreements of other lawyers. We have had a nice brief run of appellate victories of late and it would have been nice to increase our fee agreement on those cases. Our client fee agreement specifically does not include appeals in our 40% fee. But when we have won appeals, we have stuck to the 40% fee anyway, probably as a Pavlovian reflex that 40% is what is appropriate after a lawsuit has been filed.

Senator Patrick Leahy proposed a new law that would allow a retired Supreme Court justice to pinch-hit if a justice recuses himself or herself from a case. The idea is that it would lead to fewer 4-4 rulings, in which case the lower court ruling stands.

The Maryland Court of Appeals has been doing this effectively for years. I think it is a terrible idea for the Supreme Court. First, the Supreme Court is – to the chagrin of many – a highly political body. This makes sense because the issues that go to the Court are the tough issues of our time and judges go with their philosophical point of view.

Most judges agree on the basics. It is the nail biters that go to the Supreme Court. These nail biters split so often along ideological lines, with the four conservatives pitted against the four liberals, leaving Justice Kennedy in control of the critical issues of our day.

The Maryland Court of Appeals has two big cases in 2009—a lead paint case and a medical malpractice claim – in which plaintiffs seek a path around Maryland’s non-economic damages cap after big jury verdicts. Plaintiffs lost Round 1 today.  [2019 update: And Round 2, Round 3, and so on.  This is dead.  The nutshell of everything you read below is this: the cap applies across the board to lead paint cases and any other tort case. Exclamation point.]

Green v. NBS

In Green v. NBS, the Plaintiffs’ lead paint lawyers argued that the statutory cap on non-economic damages in Maryland does not apply to personal injury claims allowed by the Consumer Protection Act. Specifically, and creatively, the Plaintiffs claimed that a lawsuit brought under the CPA is not a “personal injury action” and the Maryland legislature did not want a cap on deceptive practice covered by the CPA.

Specifically, the plaintiffs pushed the theory that the Maryland non-economic damage cap applied only to common law tort claims and not a statute like the CPA.  The intellectual unpinning of this argument was that the CPA was a statute that was not just about tortious conduct.

I like the argument right?  The Maryland high court, however, found that the Plaintiffs’ CPA claim is a personal injury action and that CJ § 11-108 applies to a proceeding in which a consumer asserts a claim for money damages to compensate for injuries sustained because of a Consumer Protection Act violation. The court’s reasoning is, essentially, that if it looks like a personal injury claim and talks like a personal injury claim, then it is a personal injury claim.

The court stated, discussing the general damages cap in C.J. §11-108, that

Both businesses and individuals need insurance for economic protection against suits seeking non-economic damages regardless of whether the lawsuits are based on acts of commission or omission that were torts at common law or are based on conduct that breaches a duty imposed by a statute or by [the Maryland] constitution.

Two More Arguments

The plaintiffs’ lawyers made two other arguments. The first was DOA: the cap violates the Maryland constitution. Again, the Plaintiffs’ lawyers tried to put a CPA spin on the old argument, arguing that a cap on a CPA claim violates the prohibition against the enactment of “special laws” in the Maryland Constitution. But the argument went nowhere with the court.

Finally, the Plaintiffs argued that even if the cap applies; it entitles Plaintiffs to a judgment in the amount of $530,000 rather than $515,000 because the exposure to lead-based paint continued to arise after October 1, 1996. The plaintiffs’ lawsuit and expert testimony were at odds with this contention. Still, I give Plaintiffs’ lawyers an “A” for creative effort in trying to get another $15,000 for their clients.

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