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Articles Posted in Maryland Courts

In its final decision of the Term, Maryland’s Court of Appeals gave us an (arguably) game-changing decision Rochkind v. Stevenson. The court announced that it was discarding the old Frye-Reed rule and formally adopting the Daubert test for the admissibility of expert testimony.  We all knew we would get here one day. And here we finally are.

Factual Background of Rochkind v. Stevenson

The case that gave rise to this appellate decision began back in 2011 when the plaintiff brought a lead paint case against her former landlord, Stanley Rochkind.  The Rochkind name has been ubiquitous in the lead paint world, having been the defendant in hundreds of claims over the last 25 years that were covered by multiple insurers.

Just before the coronavirus shut the world down, the Maryland Court of Special Appeals issued an interesting unreported opinion in a premises liability case in Montogmery Counrty that looks at voir dire in Maryland, an issue that has always interested me in Smith v. Rollins Real Estate.  

Case Facts

The case itself is pretty boring. It is slip and fall on the way to a restaurant case.  A woman gets dropped off at the door.  She rolls her foot getting out and blames a separation in the sidewalk.  It is not a case I would ever take.

Getting records and bills from medical providers is a lot harder than it should be. The Maryland Court of Special Appeals has a new opinion that makes the collection of records even harder.   Yes, thankfully, it is an unreported opinion.  But it is still a message that health care providers can kick the can down the road on medical records requests with impunity.

The sad part is I agree with the opinion. It was the right call.  For sure.  But it is not helpful for medical malpractice and personal injury lawyers trying to collect medical records.

What Is the Maryland Record Collection Statute?

Besides begging and pleading, the only sword lawyers have in collecting medical records is § 4-309(a) of the Health-General Article of the Maryland Code. This statute requires health care providers to produce the records with a HIPAA authorization. This statute provides that: If a health care provider knowingly refuses to disclose a medical record within a reasonable time but no more than 21 working days after the date a person in interest requests the disclosure, the health care provider is liable for actual damages.

In Stracke v. Butler the Maryland Court of Appeals ruled that a pair of ambulance paramedics from the Baltimore City Fire Department were immune from liability because their actions in transporting a man to the hospital were not “grossly negligent.”

This case involves the scope of immunity provided by the Maryland Fire & Rescue Company Act, Maryland Code, Courts & Judicial Proceedings § 5-604 and its applicability to employees Baltimore City Fire Department employees who treated the patient that ultimately died.

I don’t like the gross negligence law we have in Maryland. I think § 5-604 is well-intended but ultimately foolish.  But I have a hard time arguing that the court did not follow Maryland law.

Last month, Maryland’s Court of Appeals upheld a $7 million verdict to the plaintiff in an asbestos case even though there was no direct evidence that the defendants had installed the asbestos products at issue. In Wallace & Gale Asbestos Settlement Trust v. Busch, a 6-1 majority held that direct evidence of exposure to a specific defendant’s asbestos products is unnecessary. Rather, a defendant’s liability for asbestos exposure can be based on circumstantial evidence and reasonable inferences.

Facts of the Case

appellate decision asbestosThe underlying facts are fairly typical of most asbestos cases these days. The plaintiff (70-years-old at the time of trial) worked for 30 years as an HVAC technician. He primarily installed thermostats, sensors, and temperature control systems. The plaintiff himself never directly worked with asbestos, but he was sometimes around other people who were using asbestos.

Breaking up with a client is something all personal injury attorneys do on a fairly regular basis. A lot of cases look promising.  But an investigation and review of the medical records can sometimes paint a very different picture.  This is particularly true in medical malpractice cases where the medical records read differently from what the patient remembers or believes.

For the most part, lawyers are free, as the client is, to sever the attorney-client relationship.  If you have already filed a lawsuit for the client, things are a bit more complicated because you will need to get court permission before withdrawing from the case.  Before a case is actually filed, however, breaking up is a lot easier.

Maryland Ethical Rules

appellate court decision reversalI’m also fired up for a new year of appellate opinions.  Something about having a new year on a case that just seems exciting to me.  (In an unrelated note, I have four kids and few hobbies.)  But there have been few tort related appellate opinions this year to get me fired up.

Anyway, the Maryland Court of Appeals recently decided a Sutton-Witherspoon v. S.A.F.E Management, a case that is factually interesting to almost all of us in Baltimore.

Facts of Case: An Out-of-Control Victory Parade

The Maryland Court of Special Appeals took an interesting look at the scope of settlement releases in Harvey v. City Homes, Inc last week.  The case has some important reminders for Maryland plaintiffs’ attorneys that the case is not over after a settlement or verdict because the language of the release may be critical if the victim has future potential claims.  Continue reading

In Duckett-Murray v. Encompass Ins. Co. of Am., Encompass did its best effort to refuse coverage when its insured needed it after thirty years of receiving premiums from its insured.

This has to be the least shocking development since Kim Kardashian’s last divorce.  Listen, unlike a lot of lawyers, I understand when insurance companies fight like crazy in third party claims where the claimant is not their client. But this is a case where the family had been paying premiums for almost 30 years.  When an insurance company loses an appellate case on coverage involving their own insured, they should be ashamed of themselves.  Sure, perhaps it is a close call.  But don’t you want to err in favor of your own client?

Thankfully, the Court of Special Appeals ruled for the victim.  The key take-home lesson here is if there is any question about an umbrella or uninsured coverage, turn over every last stone. Because there is a real good chance you will find a path to move coverage.

I’ve complained to you (all 14 of you) for years about Maryland’s ridiculous refusal to adopt dram shop laws to allow lawsuits against bars and restaurants who knowingly serve drunk people who then go out and hurt of kill someone.  A divided Court of Appeals says the Legislature should take the first step.  The legislature bows to the National Resturant Association lobbyists because there is no dead kids lobbying group that contributes money to Maryland General Assembly elections (except for MADD which does an outstanding job with few resources).

The court took a baby step in the right direction this month when it issued an opinion in two cases involving underage drinking that creates a path for victims and their families to bring civil lawsuits against adults who serve children alcohol.

This is a big step forward.  The Maryland Court of Appeals has previously found that social host liability is a near relative of a Dram Shop liability.  So it is not hard to imagine the court extending the reasoning of these cases as a logical move towards dram shop laws.  It is also noteworthy that Judge Sally D. Adkins wrote the opinion.  Judge Adkins wrote an amazing dissent in the last big dram shop case that came before the court, arguing that the law had to be changed because too many Marylanders were unnecessarily dying because drunk people are being over-served in our bars and our restaurants. It could just be me, but I think this is a sign that Judge Adkins’ thinking will soon carry the day.

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