Articles Posted in Maryland Courts

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jurorsIn Pearson v. State, the Maryland Court of Appeals earlier this month addressed the important question of which voir dire questions, if requested, must be asked of prospective jurors.  Why am I writing about it?   It might have important ramifications on civil personal injury jury cases.

The facts of this case are simply.  Pearson is  indicted and convicted for a narcotics offense.  On appeal, he argues that he has been denied a fair trial because he was not permitted to ask certain questions during voir dire.  Pearson claims that the trial court committed reversible error when it refused to ask the venire panel:

  1. if any member of the panel, or any member’s family, friend, or acquaintance had ever been the victim of a crime; and
  2.  if any member of the panel was ever a member of a law-enforcement agency or “kn[e]w anyone who is employed” by a law-enforcement agency.   Both requests had been denied by the trial court.
  3. Do any of you have strong feelings about [the crime with which the defendant is charged]?

Maryland only allows questions to be presented during voir dire if the question is “reasonably likely to reveal specific cause for disqualification.”  Maryland only recognizes two specific instances that comprise specific cause for disqualification: (1) a statute disqualifies a prospective juror or (2) a collateral matter is reasonably liable to have “undue influence over a prospective juror.”  Under the second category, which this case addressed, a matter has undue influence if it addresses biases that create a “demonstrably strong correlation” with a mental or emotional state that will improperly influence a juror’s decisions. Continue reading →

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new maryland appellate opinion

New Uninsured Motorist and Jury Awarded Zero in Pain and Suffering Damages Opinion

Last week in Keller v. Serio, the Maryland Court of Appeals took yet another look at two issues that have been reoccurring leitmotifs in Maryland appellate opinions: (1) to what extent can we talk about uninsured motorist coverage in an uninsured motorist case and (2) whether a jury can award zero damages when all of the facts suggested otherwise.  Keller is a motor vehicle negligence action instituted solely against the at-fault driver.   Negligence was conceded and the issues at trial were confined to causation and damages. GEICO, although not a party to the action, realized the possibility that, as the plaintiff’s insurer, the plaintiff might get a verdict in excess of the liability coverage.  GEICO intervened in the case.  At trial, GEICO did the “UM potted plant defense” of just sitting at the trial table and doing absolutely nothing.   Plaintiff’s counsel alluded to GEICO during opening statements, but thereafter did not mention the insurer, its policy, or anything about UM policies. At the close of the trial, plaintiff’s counsel sought an instruction clarifying for the jury (a) how UM policies work and how they should not influence an award of damages and (b) clarify any confusion that may have resulted from GEICO’s presence at the trial.   The trial court refused the instruction.   The jury returned $29,355.69 in economic damages, yet $0 in noneconomic damages. That, folks, is what you call a bad verdict.  Plaintiff argued that such a breakdown of damages is inconsistent, illogical, and evidence that the trial court’s failure to give the UM instruction was reversible error.   No one can argue with the former part of that sentence.   It is completely illogical to say someone incurred nearly $30,000 in medical bills and did not suffer unless the evidence was that the Plaintiff was made of stone.  The question is whether it warrants nullifying the jury’s verdict and whether the uninsured motorist mess played out appropriately.  The Maryland high court said no and yes and shot down the plaintiff”s appeal.

The Uninsured Motorist Instruction

Plaintiff’s big beef was that failing to give the desired UM instruction was confusing to the jury.  It almost certainly was.  They had to be asking themselves, “Why is GEICO here and why is their lawyer not saying anything?”  But the uninsured motorist issue was never properly before the jury.   The plaintiff’s lawyer  never offered the insurance agreement into evidence. The Plaintiff took his best shot by pushing the court to follow Boone v. American Manufacturers Mutual Insurance Co.   Boone is the classic “should have given the UM instruction case.”  In that case,  the issue of UM policies was central to that case, because the UM provider was one of the parties to the action.  The Boone court found reversible error in the trial court’s failure to give a requested instruction on UM policies, because UM policies were a focal point of the trial.  The Court of Appeals distinguished that holding by citing the fact that nothing about UM policies was ever entered into evidence.  Although mentioned in opening statements, opening statements are not evidence.  So while an instruction was essential in Boone,  the court found it was not essential or even wise under the circumstances of this case.

The “Juries Can Give What They Want” Holding

It is, to use the legal term, crazy train to award $30,000 in medical bills and nothing in pain and suffering.  The question is can a jury do it?  While some states have held that an award for economic damages associated with the treatment of pain is inconsistent with a failure to award any money for pain and suffering, Maryland has not.   Maryland courts have said this over and over again.    End of story and end of this appeal.  Juries can do what they want and this includes seemingly inconsistent civil jury verdicts. 

 

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The U.S District Court for Maryland made a noteworthy ruling in Jackson v. Johnson, a Maryland auto tort case that is interesting case that involves federal diversity law and interesting plaintiffs’ lawyers tactics in finding their preferred venue for the case.

Plaintiffs' Venue Tactics on Full Display

Plaintiffs’ Venue Tactics on Full Display

The Battleground

Venue is key. It is this way everywhere. But it is particularly so in Maryland.  In this state, plaintiffs want to be in Baltimore City or Prince George’s County.  Some people kid themselves that “in the right case” another venue can be better.  But this is mostly delusional.  

Conversely, you really do not want be in some of these ultra conservative counties on the Eastern Shore.  Can plaintiffs win tough case there?  Absolutely. We have.  But you really want to choose the path of least resistance and you don’t get that in those counties.

But, for some lawyers in some cases, the worst case scenario for an auto tort case is federal court.  Why?  I mean, the federal courthouses make most county courthouse look downright pedestrian.  But, alas, this is not a beauty contest.

The first problem many auto tort lawyers have is that it is not in their wheelhouse.  Very few garden variety accident claims find their way into federal court. The federal courts make you jump though a lot of hoops with respect to Rule 26 disclosures and other obligations.  Some of these obligations are evidentiary.  As a breed, plaintiffs’ lawyers think the federal rules of evidence are are more exactly both in letter and in application.  Another basis for the reluctancy of Plaintiffs’ attorneys  is if you are a lawyer on the Eastern Shore, you really don’t want to track all the way to Baltimore.  (Insurance companies don’t care.  They will just hire a lawyer in Baltimore or Greenbelt.  Or not.  Either way.)

The Big Issue in Jackson

Plaintiff filed suit in Washington County.  This is not a place where plaintiffs’ lawyers crawl past other jurisdictions to sue there.  Still, Plaintiff sued for $75,000 because it wanted to fly just shy of the jurisdictional amount that would invoke federal jurisdiction if there was diversity of citizenship which there was in this case.  To satisfy diversity jurisdiction, there must be (1) diversity of citizenship and (2) the matter in controversy must exceed the sum or value of $75,000.  Citing the plain language of 28 U.S.C. 1332(a), the court held that alleging exactly $75,000 in damages should be considered a claim not in excess of $75,000, precluding subject matter jurisdiction.

That should  be fatal to removal in any case where the amount plead in the ad damnum clause is not more than $75,000.   Defendants still thought the case should be removed to federal court.  Why?   Defendants are bugged, with some reason, that after a verdict above $75,000 the plaintiff could technically just amend their Complaint even after the verdict.  So, at a minimum, the defendant wanted the court to put a $75,000 cap on the case.

Court’s Ruling

The court ruled in an opinion by Judge Ellen Lipton Hollander that defendant had to prove that it was a “legal certainty” that the plaintiff would actually recover more than $75,000 if she prevailed.  Proving the value of damages to a legal certainty in a tort case is an impossible task.   Alternatively, the defendant argued that if the case is kept in state court, the award should be limited to $75,000 and not a penny more.  Again, the court disagreed and cited Maryland’s long standing policy of allowing post-verdict amendments to pleadings.

The court stressed that while a plaintiff in Maryland is permitted to amend the complaint post-verdict to accurately reflect the value of the damages, there is no rule that says a court must allow a plaintiff to amend the complaint post-verdict.  For the court, the fact that a post-verdict amendment request may be denied was sufficient to guard against plaintiff’s lawyers who deliberately request damages at or below $75,000 to avoid removal to federal court.  Since a plaintiff, the court argued, may or may not be permitted to amend the complaint post-verdict, he “under-claims” his damages to avoid federal court “at his own peril.”

Is this new law?  Not really.  Niles Barton & Wilmer, who defended the case, decided to fight this issue for reasons that escape me.  But I’m writing about the case because I think it raises issues of tactics and law that are interesting and important for every plaintiffs’ lawyer to consider.

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emailI don’t write about criminal cases on this blog for a reason: I know nothing about them.  But Donati v. State is a criminal case that teaches us a lesson in how to get an email into evidence at trial. In medical malpractice and product liability cases, this is something you often need to be able to do.

The Facts of Donati v. State

If I’m going to have to read a criminal case, I want some wacked out facts.  This case delivers.

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Maryland appellate opinionsMark Mixter and James Farmer are two Maryland tort lawyers that just don’t like each other.   There are lots of attorneys that don’t like each other.   Lawyers are probably more confrontational and competitive than your average bear.  If you doubt this premise, go watch a lawyers’ league softball game.   So add this natural tendency with the intensity of litigation and people are going to find reasons to get upset unless you are ultra thick skinned.  (One resolution of mine in 2014 is to develop some thicker skin all the way around.)

When these two lawyers fight, it goes deeper and litigation apparently follows.  The Maryland Court of Special Appeals recently  affirmed the dismissed defamation, libel, slander and intentional inflection of emotional distress claim that one had filed against the other.  You can find the opinion in Mixter v. Farmer here if you are interested.  Something about someone writing a letter to other lawyers saying disparaging things or something.   I started to read – mostly out of prurient interest – but I realized I must have something better to do.  (So I wrote this point instead?)

This is apparently the second case between these attorneys that has found its way to the Maryland Court of Special Appeals.   The last one involved a case that settled but one of lawyers became so mad that he sought and received a sanctions order against the other.   The appellate court reversed the order of sanctions.  So a whole lot of trees were burned and blood pressure was raised in a battle over a little more than $3,000.

I’m not real judgmental about this kind of stuff.   You rarely know what really happened in these battles and, typically, but not always, it takes two to tango.  The line between fighting for a principle and merely acting out of spite can sometimes be a fine and blurry line.  But it is such a waste of energy and resources for talented lawyers to spend their time sniping at each other, or worse, this.  Every time I want to start World War III over something that is ultimately stupid, I go home and kiss my wife and kids and get perspective on what really matters.

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The Maryland high court last week suspended an attorney indefinitely for failure to honor a lien against his client’s case. He does have a right to reapply to the bar after 6 months.

Two clients had small injury cases that collectively settled for a little over $25,000. The Food Employees’ Labor Relations Association and United Food and Commercial Workers’ Health and Welfare Fund had a lien on the case. Unlike almost every other non military lien holder, this union demands full payment of its lien without any reduction for attorneys’ fees.

It is a great strategy by the union in terms of getting all of its money back. It is a terrible strategy when it comes to helping its workers get compensation for their injuries. Because when most lawyers see these agreements, they run for the hills unless it is a catastrophic injury case. Why? Because it is hard for both the lawyer and the client to get paid. No one wants to take a case where no one walks away happy.

When I first started doing plaintiffs’ work, I couldn’t believe the union could do this. But there is a case square on point.

Anyway, the rest of the story writes itself. He does not pay the liens nor does he interplead the funds. He ignores request after request for payment of the lien for years. He finally puts his own money into it when I guess he realized it just was not going to go away.

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The Maryland Court of Appeals decided this morning Chesson v. Montgomery Mutual, a mold exposure workers’ compensation case. I don’t handle mold or workers’ comp cases. But this case has implications for any tort cases involving the question of what opinions an expert can render at trial.

Claimant in this case sought compensation for exposure to mold that caused neurocognitive and musculoskeletal problems. The trial court in Howard County allowed testimony from plaintiffs’ expert that this mold exposure caused injury. The expert based his opinion on a differential diagnosis which basically means process of elimination. The Claimant won at trial and the defendant insurance company appealed.

Certainly, the expert’s opinion had some flaws that the defendant readily exposed on cross examination. He did not test the buildings for mold exposure because the presence of a musty smell alone was enough. The basis for his opinion was that these patients were in mold invested buildings, removed from the area, and then returned.

The expert’s conclusions are based on the fact that the subjects got better when taken out of the area and worse when exposed again. Certainly, that is a theory that works for concluding that you better call someone if we are taking about your child’s bedroom. But the question here is whether this methodology passes Frye-Reed. The Maryland high court said that it did not.

Ultimately, what we have is a sketchy testing in a very controversial toxic exposure case. Mold litigation is propelled by endless media coverage which has led to a heightened public awareness of the concerns. Courts around the country are grappling the challenge of just how to deal with these cases. Still, there is a considerable amount of uncertainly about the type and extent of the injuries that can be caused by mold exposure. The Maryland courts are giving a real heads up about how far plaintiffs’ counsel has to go to show that there is scientific consensus about the the effects of exposure.

The opinion provides a rich analysis of what is required under Frye-Reed and should be read by anyone who is trying complex medical causation cases.

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I have a theory. My theory is that under Maryland law, insurance companies have an obligation to their insureds to tender the policy limits in a case as soon as a reasonable, prudent insurance company would realize that they must do so to protect the interests of their client.

My logic is so compelling that I’m ready to bump it up from theory to hypothesis. I’m thisclose.

There is one flaw in my theory: I can’t get anyone else who is not a biased plaintiffs’ lawyer to agree with me. The latest blow is particularly painful because it comes from an opinion from U.S. District Court Judge Paul W. Grimm, who I still think is one of the best judges in the country in spite of this infraction.
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courthouseLast month, in Curry v. Trustmark Insurance, a Maryland District Court judge made an interesting ruling in a breach of contract case involving disability payments. The judge granted summary judgment for the defendant. While not a tort claim, this opinion deals with a lot of issues we face as personal injury lawyers with respect to disability and the contractual obligation to submit to a IME in uninsured motorist cases.

Here are the basic facts: Plaintiff, a chiropractor, is injured as he is attempting to perform an adjustment on one of his patients. He suffers, ironically I guess, a lower-back injury that he claims causes a permanent disability.

On the face of it, arguably that is a tough make, right? You were just performing an adjustment and now you are disabled? Possible? Sure. But unbelievably unlikely.

Still, he makes a claim and the insurance company makes payments to the Plaintiff in the amounts that were predetermined in the policy. After the plaintiff fails to show for an IME, the insurance company says enough is enough and discontinues the payments. Plaintiff files for breach of contract lawsuit claiming $1.5 million dollars in damages.

The district court judge grants Trustmark Insurance’s motion for summary judgment because the Plaintiff failed to appear for an IME that was a requirement in the insurance contract.

From here, we learn an important fact: the Plaintiff must be acting as their own lawyer. A week and a half after the entry of summary judgment, the Plaintiff asks the judge to reconsider the decision to grant summary judgment, arguing that there was a dispute of material fact between the parties that makes summary judgment improper. Plaintiff claims that in his answers to Defendant’s interrogatories, he agrees to appear for an IME evaluation. Plaintiff further argues that this admission “saves” his claim for the disability payments. This argument fails because it is real dumb. Judge Bredar does note that the ruling has no bearing on Plaintiff’s ability to bring suit for breach of contract between July 27, 2011 (the date he filed his complaint) and the present.

Do You Have to Give a Medical Exam When You Bring a UM Claim?

When the insurance company demands a recorded statement or a medical exam in a uninsured or underinsured motorist case in Maryland, almost every accident attorney in Maryland assumes that this means that you are required to do so or you lose your coverage. I am not so sure.

I know the contract is clear on this point. But the Maryland UM endorsement does not say that and, arguably, that rewrites the policy language.

No one knows for sure which is why few tort lawyers in Maryland are going to push the envelope because the juice may not be worth the squeeze. But it is a good thing to keep in mind, particularly in fact patterns like this one.

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If you want to file a medical malpractice claim in Maryland, you have to jump through a 1,000 hoops and, if you skip even one, it might be fatal to your case. In Heavenly Days Crematorium v. Harris Smariga, we look at the loops and the hoops you have to jump through to sue an engineer, architect, or land surveyor in Maryland. It is not 1,000 hoops. But it is plenty.

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