The Maryland Court of Appeals has two big cases in 2009—a lead paint case and a medical malpractice claim – in which plaintiffs seek a path around Maryland’s non-economic damages cap after big jury verdicts. Plaintiffs lost Round 1 today. [2019 update: And Round 2, Round 3, and so on. This is dead. The nutshell of everything you read below is this: the cap applies across the board to lead paint cases and any other tort case. Exclamation point.]
Green v. NBS
In Green v. NBS, the Plaintiffs’ lead paint lawyers argued that the statutory cap on non-economic damages in Maryland does not apply to personal injury claims allowed by the Consumer Protection Act. Specifically, and creatively, the Plaintiffs claimed that a lawsuit brought under the CPA is not a “personal injury action” and the Maryland legislature did not want a cap on deceptive practice covered by the CPA.
Specifically, the plaintiffs pushed the theory that the Maryland non-economic damage cap applied only to common law tort claims and not a statute like the CPA. The intellectual unpinning of this argument was that the CPA was a statute that was not just about tortious conduct.
I like the argument right? The Maryland high court, however, found that the Plaintiffs’ CPA claim is a personal injury action and that CJ § 11-108 applies to a proceeding in which a consumer asserts a claim for money damages to compensate for injuries sustained because of a Consumer Protection Act violation. The court’s reasoning is, essentially, that if it looks like a personal injury claim and talks like a personal injury claim, then it is a personal injury claim.
The court stated, discussing the general damages cap in C.J. §11-108, that
Both businesses and individuals need insurance for economic protection against suits seeking non-economic damages regardless of whether the lawsuits are based on acts of commission or omission that were torts at common law or are based on conduct that breaches a duty imposed by a statute or by [the Maryland] constitution.
Two More Arguments
The plaintiffs’ lawyers made two other arguments. The first was DOA: the cap violates the Maryland constitution. Again, the Plaintiffs’ lawyers tried to put a CPA spin on the old argument, arguing that a cap on a CPA claim violates the prohibition against the enactment of “special laws” in the Maryland Constitution. But the argument went nowhere with the court.
Finally, the Plaintiffs argued that even if the cap applies; it entitles Plaintiffs to a judgment in the amount of $530,000 rather than $515,000 because the exposure to lead-based paint continued to arise after October 1, 1996. The plaintiffs’ lawsuit and expert testimony were at odds with this contention. Still, I give Plaintiffs’ lawyers an “A” for creative effort in trying to get another $15,000 for their clients.
As Robin Silver with Miles & Stockbridge points out, Maryland joins courts in Hawaii, Washington and Oregon have expressly rejected the intrusion of personal injury claims into their respective CPAs. I am as pro-plaintiff as the next personal injury lawyer, but I can see the wisdom in the court’s holding in this case.
You can find the Maryland Court of Appeals’ opinion here. I watched the oral arguments. After listening to Judge Irma S. Raker asking Plaintiff’s lawyer the same question at least three times without getting an answer to her satisfaction, you feel confident where the court is going in this case.
What Do We Get Out of This Case
Not much. The law is what we thought it was despite some nice hustle by the plaintiff’s lead paint lawyers.
The current cap, between October 1, 2013, and October 1, 2014, is $785,000. So if a jury awards $10 million in pain and suffering, (which has happened to us since we posted this with this exact verdict, ironically) we are stuck with the $785,000 cap on non-economic damages in Maryland. (The cap in 2019 is $860,000 for pain and suffering – the max cap for a death case is $2,150,000.)
To get around this cap on the verdict, put on an economist, supported by a doctor, who can set out the child’s economic losses over the course of the rest of their lives. This is like shooting fish in a barrel in lead paint cases.
The child will lose income over the course of their lives with a serious brain injury. But it is amazing how many lawyers do not do it right or even at all. When I was defending lead paint cases in the 90s, no one was bringing economic damages cases. Eventually, the plaintiffs’ lawyer figured it out.