The Maryland Court of Appeals has two big cases in 2009 – one a lead paint case, the other 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. Period. ]
Green v. NBS
In Green v. NBS, Plaintiffs’ lead paint lawyers argued that the statutory cap on non-economic damages in Maryland does not apply to personal injury claims authorized by the Consumer Protection Act. Specifically, and creatively, 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 practiced covered by the CPA.
The Maryland high court, however, found that Plaintiffs’ CPA claim is a personal injury action and that CJ § 11-108 is applicable to a proceeding in which a consumer asserts a claim for money damages to compensate for injuries sustained as a result 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.
Plaintiffs’ lawyers made two other arguments. The first was DOA: the cap violates the Maryland constitution. Again, 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, Plaintiffs are entitled 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. 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 and see the oral argument in the case here (fourth from the top). 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 pretty 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. 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, we are stuck with the $785,000 cap on non-economic damages in Maryland.
To get around this cap on the verdict, you have to 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. Of course, the child is going to lose income over the course of their lives with a serious brain injury. But it amazing how many lawyers do not do it right or even at all.