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Articles Posted in Maryland Courts

I have always had an interest in spoliation of evidence.  Spoliation is the negligent or intentional destruction or alteration of evidence or failing to preserve evidence for relevant to future, and sometimes even pending, litigation.  This is not an issue we see often in car accident cases but we see it in truck accident and product liability cases and, to a lesser extent, in medical malpractice claims.

spoliation evidence opinionThe Maryland Court of Appeals looked at this issue in Cumberland Insurance Group v. Delmarva Power. This case involved the treatment of spoliation of evidence when the physical object destroyed is itself the subject of the case. The context is a little boring. This is a battle between an insurance company and a utility company so, in my world, this is a bad guy on bad guy battle. The destruction here was also negligent, which is a lot less sexy than willful destruction.

Anyway, the claim centered on a house fire of a home insured by Cumberland Insurance Group. After the fire, two of Cumberland’s experts inspected the house, and the meter and meter box removed from the scene by the Fire Marshal. Based on its experts’ inspections, Cumberland believed the meter and meter box were the source of the fire and sought a subrogation claim against Delmarva Power, the electric company for the property. Cumberland received an estimate for the demolition of the property and issued a check to the homeowner that appeared to include the cost of demolition. Although Cumberland sent Delmarva notice that Cumberland intended to file a claim against Delmarva for subrogation, the notification did not include information regarding the schedule for demolition. Subsequently, Delmarva did not send any personnel to inspect the property before demolition occurred, less than sixty days after the fire.

An amendment to Rule 1-311 went into effect on January 1st.  The amendment requires that all pleadings filed electronically with an electronic signature must include the attorney’s client electronic filing pleadingsprotection fund number.

I cannot find the amended version of this new rule online.  I highly doubt Judge Barbera will drive down to your office to compel compliance.  But it would be a smart idea to comply now.  At some point, someone will argue that the pleading was not valid without the lawyer’s client security trust fund number.  Do you win that battle?  Yes. But you lose even when you won; when you are fighting a fight that should not have been fought in the first place.  I also don’t want the clerk’s office to call and scream at me.  It never pays to make those people mad.

Rule 1-311 is the rule that requires an attorney’s signature on every pleading.

 

Late last year, the Maryland Court of Appeals decided yet another “Should we shoot for justice or dwell on the hypertechnical?” case in Lisy appellate opinion jury prayerCorp v. McCormick and Co.   The court went the wrong way.

Here, the Plaintiff filed a lawsuit in Howard County alleging both tort and contract claims.  When you file a lawsuit in Maryland, you fill out a Case Information Report (“CIR”) to serve on the Defendant.  A CIR is a three-page administrative form that helps the court process cases. The court is looking to find out things like the nature of the claim and the amount of damages that are sought and, most germane to this case, whether the Plaintiff is seeking a jury trial.

Maryland Rule 16-202(b) makes it abundantly clear that the purpose of the CIR is only case management by the court.  But it is also undisputedly a clear intention by the Plaintiff to seek a jury trial.

The Plaintiff’s attorney asked for a jury trial in the CIR but neglected to file a separate document as required by the rules requesting a jury trial.  So the question in the case is whether a CIR is an acceptable vehicle for demanding a jury trial under Maryland law.

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Last week, the Maryland Court of Appeals decided Falls Garden Condominium Association v. Falls Homeowner’s Association.  It is not a personal injury case. In fact, it’s a case about parking spots. But Falls Garden is actually apersonal injury settlement case about settlement contracts and their enforceability.  If you are a Maryland personal injury lawyer, you need to know when a deal is actually a binding deal.

Typically, counsel on both sides of the aisle assume that you have a binding deal when you agree to the numbers on the claim.  Most settlements really do go smooth, particularly in car accident cases.  State Farm, GEICO, and their brethren do not really care about confidentially, admissions, or anything else outside of its standard form settlement agreement.   But malpractice insurers and their doctors and hospitals and product liability defendants often treat settlement agreements like they are reinventing the wheel.

Keep in mind that, as plaintiffs’ attorneys, we never really have those types of things we are trying to slip in under the wire for a settlement.  Our essential term is money and we are not trying to get the defendants to agree to other terms in personal injury cases.

electronic court fillingsUPDATE: As of October 14, 2014, electronic filing is mandatory for attorneys in Anne Arundel County.   Here is the rule.   In the online seminar, the court clerk said that all filings are electronic as of today, So, I think if you have a case pending, all your pleadings must be e-filed from here.  She also showed that there would be a 30 day grace period. So maybe mandatory is a strong word.   I think you are better off staying away from Google Chrome – my favorite – and sticking with use Internet Explorer or Firefox for your browser.  Below is the original blog post I wrote on this back in July.

We have been hearing for some time about the Maryland Electronic Courts (MDEC) project that will eventually allow for electronic filings, allowing Maryland lawyers to get the same modern conveniences of electronic filing that we have enjoyed in federal court for quite some time. This integrated case management system — between circuit, district, and appellate courts — will really change the practice of law on an administrative level and will hopefully allow us to speed past some filing related bottlenecks we have in pushing cases forward.

No more paralegals and couriers jumping into their cars and racing to the courthouse to meet filing deadlines.  We don’t do a ton of the “last-minute rush” stuff here, but it happens occasionally.  I have the courier bills to prove it that always annoy me to no end. Anne Arundel County somehow got picked to kick off the e-filing program. Starting Monday, September 15,2014, lawyers can register for e-filing to get ready for the MDEC’s launch in Anne Arundel County.  As of October 14, 2014, it will not be optional for lawyers.

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But she caught me on the counter (It wasn’t me)
Saw me banging on the sofa (It wasn’t me)
I even had her in the shower (It wasn’t me)
She even caught me on camera (It wasn’t me)
She saw the marks on my shoulder (It wasn’t me)
Heard the words that I told her (It wasn’t me)
Heard the scream get louder (It wasn’t me) – Shaggy (2000)

U.S. District Court Judge Paul Grimm granted summary judgment for Washington Metropolitan Area Transit Authority last week in a slip and fall, no impact bus accident case in Hall v. WMATA. A slip and fall no collision “the door shut on me” bus accident case in federal court?  I know it sounds bad, sure. But it gets worse.

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trial testimony skypeMaryland courtrooms are slow keeping up with the times.  This is not an altogether bad thing.  What happens in the courtroom matters and we should probably let society work out the kinks of technology and understand all of the potential unintended consequences before our judicial system leaps into the next big thing.

That said, geez.  It is 2014.  Can we get wi-fi in the courtrooms?  I can’t even get my phone on the Internet in some courthouses, like P.G. County Circuit Court  not to name any names.  We can e-file pleadings in federal court now and will be able to in state court at some point.  But we are about 15 years behind the curve.  Let’s not let the world get a full generation lead in technology over our courts.

One of the big issues that is increasingly getting attention is witnesses testifying at trial without showing up at trial.  Skype is the primary method that gets talked about, probably because its low cost makes it the most desirable.

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maryland malpractice rule

Update: Stop the presses.  This rule has already been repealed.

We have a new rule in Maryland: Rule 1-322.2:

Rule 1-322.2 shall take effect and apply to all actions commenced on or after July 1, 2014, and insofar as practicable to all actions then pending.

(a) Certificate Required. Every pleading or paper filed in an action on or after July 1, 2014 shall contain either:

(1) a certificate of compliance with Rule 1-322.1 that is signed by an individual who is (A) the party filing it or an attorney for the party, or (B) if the paper is filed by a nonparty, the person filing it or the person’s attorney, employee, or agent; or

(2) in an affected action under Title 20 of these Rules, a certificate that complies with Rule 20-201 (f)(1)(B).

Cross reference: For the definition of “affected action,” see Rule 20-101.

(b) Action by Clerk. The clerk shall not accept for filing any pleading or other paper requiring a certificate under section (a) of this Rule unless the pleading or paper contains the certificate.

Source: This Rule is new.

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baltimore lead paint verdictThe Maryland Court of Appeals just affirmed a lead paint verdict against the Baltimore Housing Authority.  This is yet another case where a governmental entity sought the refuge of the Local Government Tort Claims Act.   Thankfully, the Baltimore Housing Authority could not avail causing brain damage to a child via this loophole, at least not in this case.

Facts of Case

The plaintiff lived in a Baltimore Housing authority for two years after her birth in 1995.   She was exposed, she alleged, to chipping and peeling lead-based paint.  Her lead level was 13 mcg/dl.  When I defended these cases in the ’90s, we would have rolled our heads at that number.  Now we know better.   A level like this can cause actual injury and can bring a large jury verdict in Baltimore.

The story from here is familiar.  The plaintiff’s mom noticed classic lead-related injuries manifested themselves early: attention issues,  delays in learning to read, and behavioral problems.  Plaintiff’s experts testified that she lost 5-7 IQ points.

The Baltimore Housing Authority put on its usual witnesses – Patrick Connor, Joseph Scheller, Joel Morse, etc. – to argue that the girl was not injured by lead-based paint.

The jury did not buy-in,  awarding $160,000 in future lost wages (which seems low) and $1.1 million in non-economic damages. Under Maryland’s cap for non-economic damages, this portion of the award was reduced to $530,000.  Why so low?  The injuries occurred in 1995 when the cap was much lower. Continue reading

maryland voir dire opinionIn 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 case’s facts 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 could not 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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