Articles Posted in Maryland Courts

Judge Mary Ellen Barbera will be the first female chief judge of the Maryland Court of Appeals, our highest court, according to current Chief Judge Robert Bell who told the AP of the selection.

It is a strange way to make the announcement of this magnitude. Was Chief Judge Bell talking out of school? Maybe he was given the courtesy of knowing in advance and he spilled the beans, maybe inadvertently. I suppose they could have told Bell to leak the announcement, but I doubt it. Governor O’Malley refused to talk about Bell’s announcement when asked by reporters after an event he attended recognizing pro bono attorneys. A news conference is scheduled for Wednesday.

Chief Judge Bell, who is a true legend and hero to many, has taken a lot of shots on his way out the door of late. He will reach the mandatory retirement age of 70 on Saturday.

Technology is slowly eroding our privacy. Personally, and I’m in the minority, I’m think it is a fair trade-off. I’m okay if Apple and Google know where I am every second of the day. I’m not doing anything all that interesting.

But most people are increasing worried about technology and Big Brother. The Maryland Court of Appeals is trying to stem that time. Effective, next month, a new rule will go into effect that instructs attorneys and others who file documents with a court to keep unnecessary personal information out of the court records when possible.

While I’m not a big privacy guy, I think appellate opinions (and blogs) should leave out the names of parties to a lawsuit. I don’t use names because I don’t want someone Googling their dead father and find my blog discussing impersonal details about their death and how they lost their case trying to seek justice for his death.

I’ve written a great deal about venue issues on this blog. I’ve cheered and cried over some more recent opinions. Today is a cheer day based on three weeks old a new Maryland Court of Special Appeals’ opinion.

Let’s be honest: plaintiffs’ lawyers would usually rather be in Baltimore City

I talk too much about venue because I’m honest: it matters. A lot. Venue is predominantly one of the deciding factors in tort cases, both on liability and the amount of damages. Plaintiffs and defense lawyers burn many a forest attempting to persuade courts to allow them into a jurisdiction that more strongly favors their case.

In Maryland, and I’ve said it a thousand times, great deference should be given to plaintiffs on their choice of venue. Only when a showing of evidence that strongly weighs the balance for an opposing party should the courts grant a motion to transfer venue. Why? The powers that be have decided that it is important to defer when possible to the victim’s choice of forums. I completely agree.

In Scott v. Hawit, a child suffered irreparable brain damage allegedly because of a misdiagnosis caused by both John Hopkins Hospital and a doctor. Baltimore City was the location of the plaintiff’s injury and is Hopkins primary place of business. Still, Hopkins made a motion to transfer venue to Calvert County, arguing that Calvert was a better fit because it was where both the doctor and the plaintiff were located, and that most of the allegedly negligent treatment was done there. Continue reading

Last week, the Court of Special Appeals of Maryland decided the case of Davis v. Martinez. This was an appeal where the trial court entered an order that permitted the underinsured motorist insurer (State Farm) to participate in the trial anonymously. State Farm was never identified to the jury, the jury was not told about the plaintiffs’ claims against State Farm; the jury was never told who State Farm’s lawyer represented, and the jury was never told that State Farm’s expert medical witness was testifying on behalf of State Farm.

I know what you’re thinking if you are a Maryland accident attorney – “But wait, doesn’t King v. State Farm say that the UIM carrier must be identified to the jury in cases where the insurer is a party?” Well, yes. That is exactly the holding in King. You’d think that would be the end, right? Of course not.

We have still been getting motions to conceal the identity of the UIM carrier, but where (unlike in King) the insurance company is not the only defendant. Instead of the insurance company bringing the motion, the motion is made by the negligent driver, who argues that they will be prejudiced because they may be more susceptible to a large verdict by being associated with an insurance company whom the jury may view as a “deep pocket.” They argue that King can be distinguished because there the insurer was the only defendant, so there was nobody else to be prejudiced. They claim that it is different when there is another party who could be harmed by identifying the insurance carrier.

Now, this is a stupid distinction, because the rationale in King was that it was an error to conceal the identity of a party to a lawsuit because doing so harmed the integrity of the jury system by permitting “charades at trial,” and causing juries to speculate about the identity of the parties and who the lawyers in the case represented. One defense attorney who has brought these motions has said that they are granted about half the time. Continue reading

Five have applied for the vacancy that will be created when Chief Judge Robert M. Bell retires in July from the Maryland Court of Appeals. Three of the applicants are on the Court of Special Appeals: Judges Stuart Ross Berger, Albert Joseph Matricciani Jr., and Shirley Marie Watts. A Baltimore City Circuit Court Judge, W. Michel Pierson, and Baltimore attorney, Mary Natalie McSherry, have also applied.

Chief Judge Bell’s seat is the Baltimore seat, so these applicants are from Baltimore.

I hope Judge Bell hangs around and continues to hear cases as many judges have when they reach retirement age. Go back and read this blog and find how many times I have used this space to suck up to judges.

The Maryland Court of Appeals issued an opinion in TransCare v. Murray last week. It is an opinion you should read if you are handling tort cases – or litigating anything – in Maryland.

New Maryland Good Sam Opinion

This medical malpractice involves the transportation of the minor Plaintiff by helicopter from the Emergency Department at Easton Memorial Hospital in Talbot County, Maryland to the Pediatric Intensive Care Unit at the University of Maryland Medical System in Baltimore City.

The Venue Battle

The first battle in Transcare v. Murray was venue. Plaintiff sued in Baltimore. Plaintiff argued that TransCare Maryland has its resident agent in Baltimore City, (2) the patient’s medical records show that the doctors at Easton called the University of Maryland ExpressCare, which is located in UMMS in Baltimore City to effectuate a transfer from Easton to Baltimore City, and (3) air transport went to the University of Maryland to pick up a team of health care providers and then transported those people to Easton.

Plaintiff’s lawyers also make another argument that we have tried to make as well (and also failed). If you need air transport during a serious medical emergency, this affects everyone in Maryland, including Baltimore City residents, equally. This never seems to work.

Judge Cox’s Venue Ruling

Judge Sylvester S. Cox, sitting as Motions Judge in the Circuit Court for Baltimore City, found that while venue was proper in Baltimore City, Talbot County was the more appropriate venue. Tough blow. Almost any personal injury case has a greater value in Baltimore City than it does in Talbot County.

Trial Court Dismisses Case

The plaintiff sued alleging medical malpractice. According to the plaintiff, the employee of the defendant failed to provide the requisite standard of care, and that the defendant was liable under respondeat superior. The plaintiff also claimed that he was left blind, deaf, and mentally disabled because of hypoxic brain injury from the incident. The defendant moved for summary judgment, arguing immunity arising from the Good Samaritan Act and the Fire and Rescue Act. Judge Sidney S. Campen denied the motion but then reversed himself and granted the defendant’s Motion for Reconsideration of their Motion for Summary Judgment. How often does that happen? Plaintiff appealed and the Maryland Court of Special Appeals reversed, ignoring the venue issue – a dead loser on appeal anyway – but finding that defendants could not use the Good Samaritan Act as a shield. Defendants then appealed to the Maryland high court. Continue reading

The Maryland Court of Special Appeals issued its opinion a few weeks ago in a negligence per se case, Paul v. Blackburn Limited Partnership. If you are a personal injury lawyer in Maryland, this is not optional reading. Because I’m betting money someone will win a legal malpractice case in Maryland one day because they did not heed the implicit lesson that just might be in this case. So ignore it at your own risk.

The defendant, in this case, owned an apartment that had an outdoor pool. Unfortunately, you know where this is going. Just about every pool case is the worst case ever. A three-year-old boy wandered into the closed pool area. When the pool manager and lifeguard unlocked the gates, they found the plaintiff’s son unresponsive and submerged in the water.

(The question you have to be asking – the one far more important than the legal issues in this case – is how on earth did this happen? The boy’s 10-year-old half-brother was watching the child. The boy threw a toy, the 10-year-old ran down a hill to get it, leaving the child alone, and when he got back he did not find the boy. I will have a 10-year-old at the same time I have a three-year-old. I also have a swimming pool.)

As a result of the incident, the plaintiff’s son suffered a severe anoxic brain injury leaving him nonverbal, visually impaired, dependent on a gastric feeding tube, and requiring constant care from others. Again, the worst thing. The detective investigating the incident concluded that the plaintiff’s son had squeezed inside through the front gate because the lower half of the gate was loose. In addition, some parts of the fence could be pulled open because of missing metal crossbars.

The plaintiff sued, alleging negligence per se and negligence. Quick question: When you think you may have negligence per se, do you plead it in the complaint? You do? Okay, you’re a big liar. Our law firm has never done it and I have yet to find anyone who says they plead negligence per se as an ordinary practice. Heads up: I still can’t imagine a court kicking the case if you don’t, but as you will see below, you really don’t want to take the chance because the court here seems to assume that it has to be pled in the complaint. It is like I just told my law partner, I can’t imagine in a million years a court would require you to plead this in the complaint. But when the appellate decision on my case when I failed to mind the ruling, in this case, was coming down, I would be on the edge of my seat (You may not like this sentence, but I don’t know how else to say it). One rule of personal injury practice: do everything you can easily do with no risk of harm if you would sit on the edge of your seat when you were called out for your failure to do it.

Anyway, incredibly, the plaintiff’s lawyer pleaded negligence per se, claiming in the complaint that the defendant was negligent per se by failing to comply with Maryland’s COMAR regulations, the Montgomery County Code “MCC”, and the Code of Montgomery County Regulations (“COMCOR”). Second, the plaintiff contended that the defendant was negligent in breaching its duty of care to maintain the pool in a reasonably safe condition for all residents of the apartment. Continue reading

Last summer, the Maryland Court of Special Appeals decided Dixon v. Ford Motor Co. (discussed by me here) in which the court reversed a $15 million verdict (reduced to $6 million by the cap on noneconomic damages, and down to $3 million because of a joint tortfeasor settlement), finding that although expert testimony about the particular estimates of asbestos exposure was impermissible, the expert can testify as to the ranges of exposure and their approximate hazards… but saying there is “more risk” without an estimate will not get you there. Basically, the path the court suggested was having the expert testify using the plaintiff’s contentions as hypothetical facts and estimate the likelihood that the plaintiff suffered various exposures to asbestos, and the likely risks consistent with those exposures based on epidemiological data.

The case has been appealed to the Maryland Court of Appeals and has now been briefed. I read the plaintiff’s brief. They are arguing largely about what I did in my blog post (yet they didn’t cite me!): the jury was in a perfect position to make the call and they made it.

The Coalition for Litigation Justice and Product Liability Advisory Council, two shameless corporate hacks that have never seen a viable lawsuit in their lives – actually they are cool with lawsuits from anyone who is not injured (their worldview: a civil justice system only for big company battles and collecting debts from people) – filed amicus briefs arguing essentially that it does not matter if everyone using common sense knows where the exposure comes from – plaintiff can’t prove it on a hyper-technical level and therefore Ford should get a pass on the harm they caused. (I think that was what they argued… I couldn’t bear to read them all.) Does the court really read this garbage from cover to cover? Has a single appellate opinion in human history ever been swayed by one of these briefs?

The Maryland Court of Appeals rendered an opinion in Ross v. Housing Authority of Baltimore City last Friday that is important not only to Maryland lawyers handling lead paint cases, but to any plaintiffs’ attorney who is putting up an expert at trial. That’s all of us. The plaintiff, in this case, alleged that she had sustained permanent brain damage from lead exposure at two homes in which she spent her childhood. She enlisted the help of an expert witness to establish that the defendant’s building was the source of her exposure and her elevated blood lead levels. After the circuit court granted the defendant’s motion to exclude the expert testimony, the plaintiff appealed.

The circuit court’s decision was based on Maryland Rule 5-702, which reads:

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

The Court of Appeals of Maryland decided a negligence case, CSX Transportation, Inc. v. Pitts last Thursday. This blog post goes deep into issues that are related to the Federal Employers Liability Act (“FELA”). Looking back on it, I probably would not have spent this much time on it because I don’t think FELA is a hot topic to most of you and you may not want to get deep in the weeds of this case. But if you are handling FELA cases, this is obviously a must read.

The plaintiff filed suit in Baltimore City under FELA, alleging that the defendant railroad company was negligent in using large ballast instead of small ballast on the tracks. (Ballast is just crushed rock. Large ballast is used to support railroad tracks, while small ballast is used for walking surfaces.) The plaintiff, who had worked for the defendant for 40 years, claimed that walking on the large ballast caused him to develop severe osteoarthritis in both knees. Over the long course of his employment, the plaintiff walked anywhere from half a mile to six miles a day on the job as a conductor, brakeman, fireman, hostler, or engineer. The plaintiff first felt knee pain in 2003 when he was in his early 50s, but he did not see a doctor until 2007. The plaintiff discovered then that he had osteoarthritis and subsequently sued for recovery. Plaintiff sued and received a $1,779,000 verdict from a Baltimore City jury. Continue reading