Articles Posted in Discovery

Facebook discovery is all the rage amongst defense lawyers in personal injury cases.  The reason is twofold.  First, it gets defense lawyers Facebook and magifying glassaccess to information that might lead to admissible evidence that could diminish a plaintiff’s claim.  Rarely will it relate to liability but there is a real possibility that out-of-context (or in context) it would lead a jury to believe their pain is less than stated.

The second reason, and I think an equally driving force, is that defense lawyers have a new tool to harass the plaintiff(s).  Why? Because there is at least a sub population of defense lawyers who want to punish plaintiffs and their lawyers for bringing any personal injury claim.  This is the type of discovery that can be done without any real effort.  All you have to do is ask.  That is the real beauty of this discovery from the defense lawyer’s perspective.  You just cut and paste from the guy down the hall or something you find online (I’m helping them here) and then just shout “reasonably calculated to lead to admissible evidence” if the plaintiff’s attorney objects.

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The Maryland Court of Special Appeals recently decided Johnson v. Franklin, a lead paint case with an unique discovery

The Underlying Case

I’m glad you kept reading, you law scholar you!  Anyway, these are the facts. A lead paint case is filed in Baltimore City Circuit Court pertaining to a property where Plaintiff used to live. The property had long since been rehabbed and sold.  Therefore, Plaintiff could not just walk in the door to do the lead-paint testing, that he claimed he needed for his lawsuit. As a result, Plaintiff sends a letter to the current owner, asking if he can stop by for some “non-invasive environmental testing” of the property. The owner does not respond, which prompts the plaintiff to file a complaint to perpetuate the evidence. Specifically, he seeks an “equitable bill of discovery,” which would grant him a right of access to the property. The current owner does not respond to the motion but appears at a hearing pro se.  The court denies the motion, because the current owner’s privacy interests outweighs the Plaintiff’s need to conduct testing.

This makes little sense to me.  How burdensome is it to have your property tested?  I can’t figure out why the property owner would fight it either. Plaintiff agrees and appeals to the Maryland Court of Special Appeals, alleging that the trial court abused its discretion by denying the complaint/request/petition.

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facebookSocial media is great. It’s an excellent way to maintain contact with old friends.  It’s an excellent place to get news before any TV station gets it.  You can even follow Miller & Zois on Facebook.  We are pretty cute, right?

But it is a scary new world.  How many times have you heard about someone getting fired or disciplined because of an ill-advised post or comment? How many politicians have resigned because they thought it was a good idea to send a “private” message to an intern?  How many people have been arrested from a tip found on social media?

Facebook and other forms of social media can also spell trouble for lawyers, too.  In New Jersey, two attorneys were recently sanctioned for sending a Facebook friend request to another party.

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One of the benefits for plaintiffs’ attorneys is that we are far better able to dictate the pace of the litigation. Some squander this opportunity by failing to fully load the gun before firing it. When we serve the defendant with the defendant with the Complaint we will our first round of discovery and name our experts from the beginning.


   Name Your Experts From the Beginning

Our lawyers have always served a full course of discovery with our Complaint. What we have been doing for the last 15 years is filing our expert designations along with our Complaint. It is one more hoop a lawyer has to jump through when filing a Complaint but it takes away another deadline you will need to meet down the road. I just did a quick Lexis search typing in different searches to pull up missed expert deadline cases. In just a few minutes, I found hundreds of cases.

Help with Interrogatories

Drafting Interrogatories

In Maryland, each party is allowed 30 interrogatories under Maryland Rule 421 without leave of the court. I was looking at a case today that was referred to us by a lawyer who had already filed suit in the case. Our lawyers are normally hesitant to take a case that is already in litigation but the referring lawyer has referred a lot of work to us over the years so we agreed to step in and take over the case. It is a complex case involving serious injuries but the defendant’s attorney has posed serious questions as to causation of the Plaintiff’s injuries (previously nonsymptomatic patient with a herniated disk with an MRI that shows degeneration in the discs). I would love to ask additional interrogatories but the referring attorney, who is a great lawyer, filed 30 interrogatories with the Plaintiff’s Complaint.

The lawyer was probably under the mistaken impression that you cannot file multiple sets of interrogatories. This was the rule until 1994 when Maryland Rule 2-421 was amended to allow parties to serve multiple sets of interrogatories. Of course, the total number of interrogatories still may not exceed thirty.  But there is no reason not to break them up into more than one set and

Instead of discussing various torts that could be committed against Raul Ibañez, a man I will now irrationally detest for the rest of my adult life, let’s talk today about witness statements and whether they are discoverable. There was an interesting opinion in a California wrongful death case this summer, that I’ve been meaning to blog about for a while now, about whether recorded statements are discoverable.

This case – Coito v. California – comes to us on facts that are beyond tragic. A 13-year-old boy drowned in the Tuolumne River in Modesto, California. His mother filed a wrongful death lawsuit against a number of defendants, including the State of California.

There were six witnesses, all boys with the young boy who died. There was lots of talk in the air that all were in the process of committing crimes. Obviously, the defendants found this of interest. Defendants were able to get recorded statements from some of the kids. When the kids were deposed, the defendants used the witness2recorded statement to hold one of the kid’s feet to the fire on their prior statements.

But, being defendants, they did not want to turn over the recorded statements to the plaintiff, citing the work product privilege. Motions ensued. The trial court denied plaintiff’s motion to get the statements, but did order defendants to produce the recording used at the deposition. Continue reading

Forbes, via Overlawyered, has an interesting article on Houston lawyer, Steve Susman’s efforts to covert lawyers on both sides of the aisle to try more jury trials… and make cases easier to try. How? Buy reaching stipulations on all of the dumb things lawyers argue about. .

Great idea that will never work in vehicle accident or med mal cases in Maryland. Why? Rule #1 of being an insurance defense lawyer for both in-house and outside counsel is don’t screw up by doing something outside of the box. For example, one suggestion Susman makes is to agree in advance not to depose each other’s experts. After a large verdict, every insurance company starts doing a CSI forensics witch-hunt. “You did not depose the trialplaintiffs’ experts. Why? Did you get permission for Jonathan P. Paperpusher for that decision?” Insurance companies are not promoting (in-house lawyers for car insurance companies) or doling out work to lawyers (outside counsel) who take outside-the-box risks that could backfire. Insurance companies give out a lot of love to singles hitters, but far less to home run hitters who occasionally strike out. Continue reading

I read four personal injury related appellate opinions that were published last week that I think are worth reading:

Thibodeaux v. Trahan: Like most personal injury lawyers, I have been hit with post-trial remitter motions from defense attorneys claiming that the jury’s verdict was unreasonably high. But no plaintiff’s lawyer is silly enough to file a post-trial motion for additur to raise the verdict because it is never going to work. I think federal law prohibits additur in federal court jury awards.
Someone forgot to tell the Plaintiff’s lawyer in this rear-end accident bus case in Louisiana who appealed the trial court’s failure to award future pain and suffering. The appellate court changed not only the comparative negligence allocation but increased the plaintiff’s damages, finding that the trial court failed to award enough damages.shutterstock_114060499

Crazy, right? The facts were unique. This was a bench trial where the trial judge specifically found that the Plaintiff will need future surgery for her knee but did not award damages. Juries, I guess, get a pass on inconsistencies in their verdicts because it could be the result of compromise. But a trial judge deciding damages cannot form a compromise in her own mind and has to make an award consistent with the court’s findings. (Actually, I read this malpractice opinion that was decided last Thursday that makes a similar point.)

Louisiana law allows the appellate court to increase the award to the lowest amount reasonably within the trier of fact’s discretion. I don’t think Maryland law prohibits additur but there is no recorded case in Maryland where the trial court increased a damage award. I don’t know why, if we have remitter we should have additur under Goose v. Gander.

Osorio v. One World Technologies: The First Circuit affirmed a $ 1.5 million award in a product liability case in Massachusetts involving a defectively designed power saw that Plaintiff’s employer bought at Home Depot.

Plaintiff’s hand injury occurred on a construction site while operating a $179 Ryobi Model BTS15 benchtop table saw bought at Home Depot. While cutting a piece of wood, Plaintiff’s left hand slipped and went into the saw’s blade.

Plaintiff’s attorney put up a witness at trial who invented a device that allows a table saw to sense when the blade comes into contact with the user’s body and stops the blade from spinning. This is very cool, of course, but none of the major table saw manufacturers bought the invention.

Plaintiff’s theory as to why? Basically an Oliver Stoneian conspiracy theory that the manufacturers’ failure to incorporate this invention is because of a collective understanding that if any of them adopts the technology, then the others will face heightened liability exposure for not following suit.

Honestly, I’m not sure that entirely even makes sense and I really doubt that is what happened. The messenger is a bit suspect, too: the guy who failed to sell table saw manufacturers on his technology. Continue reading

The Maryland Court of Appeals tackled a piece of one of the new vexing issues our courts face: dealing with social media. Most of the legal opinions circulating around involve discovery of social media such as Facebook and Twitter in civil cases. The court’s opinion in Griffin v. State deals with a different issue: determining the appropriate way to authenticate at trial electronically stored information printed from a social networking site. This is a Cecil County criminal case but the same logic would apply to a civil case so it is a case personal injury lawyers really should read.

In this Cecil County case, Defendant’s girlfriend apparently had a My Space name of “Sistasouljah” who put an entry on her page that read: “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”. Without shutterstock_266349191going into the details of the case, it suffices to say that this did not reflect well on the Defendant’s case.

For reasons that are unclear, the prosecutor did not try to authenticate this social media entry through the Defendant’s girlfriend although she did testify. Instead, they tried to use a police officer who, on the stand, put two and two together.

A divided Maryland Court of Appeals disagreed that the officer can authenticate a social media posting because the identity of who generated the profile is unknown. In other words, the court’s problem is that just because I put up a Facebook profile claiming I’m Charlie Sheen, it does not mean that I’m Charlie Sheen.

Judge Harrell appreciated the concern of the technical “heebie-jeebies” (yeah, he used that phrase and defined it by footnote) but believes that you can add two and two together under these facts because the heebie-jeebie concerns go to the weight to be given the evidence by the trier of fact. If the post was not the girlfriend’s post, the Defendant should feel free to argue that, in Judge Harrell’s opinion.

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Last week, the Maryland Court of Special Appeals decided Logan v. LSP Marketing, a lead paint case in Baltimore City.

In this case, Plaintiff did not answer discovery. Defense lawyers, who I believe were the Leder Law Group in D.C., filed a motion to compel. In what is regrettably a common practice in Maryland, the motion to compel got Plaintiff to answer the discovery and their response was “hey, this is moot, we answered now.” expertDefendant’s counsel, to their credit, wrote a reply saying the answers were insufficient in part because Plaintiff wrote garden variety broad designations of experts. The motion was granted but a more detailed expert designation never came.

So before trial, Defendant sought to strike the experts. Baltimore City Judge Kaye A. Allison struck Plaintiff’s experts from testifying at trial. When the case went to trial, Judge John P. Miller denied the motion to reconsider Judge Allison’s motion. Which left Plaintiff with no case and Judge Miller granted Defendant’s motion for summary judgment. Continue reading

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