Trial Reporter (Fall 2003) - Obie Law

Transcription

Trial Reporter
Maryland Trial Lawyers Association
Fall 2003
Motor Torts: Perspectives on Liability and Damages
MTLA TURNS 50
in January 2004
Come Help Us Celebrate
Maryland Trial Lawyers Association
2003-2004 Officers
President
J. Mitchell Lambros
Cockeysville
President-Elect
Walter E. Laake, Jr.
Greenbelt
Vice President
Alison D. Kohler
Baltimore
Secretary
Elizabeth Jesukiewicz Frey
Washington, D.C.
Treasurer
David F. Albright, Jr.
Baltimore
Parliamentarian
Dennis F. O’Brien
Baltimore
Immediate Past President
Robert K. Jenner
In this issue…
President’s Message ...................................................................................... 3
Recent Motor Tort Decisions From Maryland’s Apellate Courts ................... 4
Rules of Procedure Update ........................................................................... 8
Handling The Minor Property Damage Accident:
Miracles Can Happen ........................................................................... 10
President’s Club ......................................................................................... 14
Is Common Sense Non-Sense? ................................................................... 15
Crash Data Record Systems: What They Can Do For You ......................... 18
From the Listserve ..................................................................................... 22
Appellate Watch ......................................................................................... 30
Appellate Decision ..................................................................................... 36
MTLA Wins Award From Maryland State Bar ........................................... 36
Recent Verdicts & Settlements ................................................................... 38
Calendar of Events ..................................................................................... 50
Baltimore
Board of Governors
Dwayne A. Brown
Baltimore
Thomas C. Cardaro
Baltimore
Rodney M. Gaston
Baltimore
Kevin I Goldberg
Silver Springs
Mitchell A. Greenberg
Baltimore
David A. Harak
Baltimore
Richard L. Jaklitsch
Upper Marlboro
Andrew H. Kahn
Baltimore
David M. Kopstein
Seabrook
Louise A. Lock
Baltimore
Stephen A. Markey, III
Baltimore
Kevin McCarthy
Bowie
Matthew M. Paavola
Baltimore
Nicole Schultheis
Baltimore
Harry B. Siegel
Columbia
Kerry D. Staton
MTLA Past Presidents
Robert K. Jenner ................................ 2002
Bruce M. Plaxen ................................ 2001
Philip O. Foard .................................. 2000
William T. Wood ............................... 1999
Andrew E. Bederman ......................... 1998
Vicki L. Dexter .................................. 1997
William O’Brien Finch, Jr. ................. 1996
Hon. Gary I. Strausberg ..................... 1995
Daniel M. Clements .......................... 1994
Augustus F. Brown ............................. 1993
A. Harold DuBois .............................. 1992
Martin H. Freeman ............................ 1991
Jonathan Schochor ............................. 1990
William J. Blondell, Jr. ....................... 1989
George W. White, Jr. ......................... 1988
John J. Sellinger ................................. 1987
Paul D. Bekman ................................ 1986
Stuart M. Salsbury ............................. 1985
Leonard A. Orman ............................ 1984
Jerome J. Seidenman .......................... 1983
Robert R. Michael ............................. 1982
Joel J. Shugarman .............................. 1981
Clarence M. Thomas ......................... 1980
Joseph A. Miklasz .............................. 1979
George W. Shadoan ........................... 1978
Leo A. Hughes, Jr. ............................. 1977
Richard R. Beauchemin ..................... 1976
Robert C. Verderaime ........................ 1975
James G. Perry ................................... 1974
Thomas L. Hennessey ........................ 1973
Archibald Eccleston, III ..................... 1972
Raymond E. Callegary ....................... 1971
Lloyd S. Mailman .............................. 1970
Wallace Dann .................................... 1969
Johnson Bowie ................................... 1968
Jesse Spector ...................................... 1967
Leroy W. Preston ............................... 1966
Calvert R. Bregel ................................ 1965
Jacob Matz ......................................... 1964
Calvin E. Cohn .................................. 1963
Irwin M. Sussman .............................. 1962
John B. Wright .................................. 1961
Claude L. Callegary ........................... 1960
Hon. Joseph I. Pines .......................... 1959
Hyman A. Pressman .......................... 1958
John J. O’Connor .............................. 1957
Albert J. Goodman ............................ 1956
Bernard M. Goldstein ........................ 1955
Max R. Israelson ................................ 1954
Baltimore
George S. Tolley, III
Tinonium
Simon Walton
Baltimore
Roger S. Weinberg
Towson
Wayne M. Willoughby
Baltimore
Robert J. Zarbin
Baltimore
ATLA Governors
Augustus F. Brown
Bel Air
Robert K. Jenner
Baltimore
Leonard A. Orman
Baltimore
ATLA State Delegates
Nicole L. Schultheis
Baltimore
David A. Harak
Baltimore
Trial Reporter Committee
Editor-in-Chief, Louise A. Lock; Assistant Editor, John J. Condliffe
Elliot Andalman, Brian S. Brown, Charles R. Claxton, Pamela S. Foresman, Kevin I.
Goldberg, Mitchell A. Greenberg, Mark E. Herman, Peter A. Holland, Kathleen Maynard,
Craig D. Miller, Dennis F. O’Brien, Leslie H. Russo, Eric N. Stravitz, David J. Wildberger,
Michael C. Worsham
Publisher/Editor, Robert A. Lembo, Esq., Assistant Staff Editor, Michael Myers
Trial Reporter is a quarterly publication of the Maryland Trial Lawyers Association. As a forum for the
bar, bench and others concerned with the civil trial practice and the administration of justice, we
encourage your views and opinions. Letters, articles, and proposals may be submitted to the publisher.
Statements and opinions expressed in editorials, articles and commentaries are those of the authors and
not necessarily those of the Maryland Trial Lawyers Association. Publication of any advertiser’s claim or
of any author’s statement, opinion or commentary, should not be construed as an endorsement by
MTLA. Trial Reporter will not be liable for loss or damage incurred in any advertisement published.
Trial Reporter is the property of the Maryland Trial Lawyers Association and its contents may not be
reproduced or reprinted without permission from the publisher at MTLA, 120 W. Fayette St., Suite 711,
Baltimore, Maryland 21201. Phone: (410) 539-4336. E-mail: mtla@mdtriallawyers.com
ATLA Minority Caucus Delegate
Kerry D. Staton
2
Baltimore
ON THE COVER
Executive Director
Robert A. Lembo
Photo with permission from www.freefoto.com
Trial Reporter
Fall 2003
MTLA President’s Message:
Intellectual Honesty
by J. Mitchell Lambros
J. Mitchell Lambros (Lambros & Lambros, Baltimore County) received his J.D. from Duke University School of Law and serves as
President of the Maryland Trial Lawyers Association for 2003-2004. His is a member of the MTLA President’s Club as an Eagle and
serves as a trustee of MTLA PAC. He is a past Chair of the MTLA Legislative Committee and former editor-in-chief of the Trial
Reporter (1997-1999) His practice concentrates in personal injury, medical malpractice, workers’ compensation and social security
disability.
Protecting and representing regular
people is not an easy endeavor. It’s a worthwhile endeavor, and it’s what we do as trial
attorneys, but our adversaries increasingly
are willing to resort to intellectual dishonesty to quash the rights of the people we
are committed to helping.
In the courtroom, in motor tort cases,
we see the “property damage defense.”
Without any medical testimony, attorneys
who are directly employed by insurance
companies waive around out of focus photographs of urethane bumper covers to
“prove” that someone could not have been
hurt in a collision. Never mind that these
covers are designed to flex and deliver damage to the structures below. Never mind
that every medically based study has demonstrated no link between property damage
and injury.
In workers’ compensation cases, proclamations are being issued that the sky is
falling because of the recent decision in Harris v. Board of Education, 375 Md. 21
(2003). This, despite the fact that a study
commissioned by the insurance industry
(National Council on Compensation Insurance [NCCI] study commissioned by
the Injured Workers Insurance Fund, 2003)
found that the Harris decision would only
have a 2% impact on premiums and that
even with Harris as the law, workers’ compensation insurance rates need to decreased
by 4.7%.
In discovery, in medical negligence cases,
we see the “do not know” causation defense.
Highly trained physicians, skilled in medical research techniques, state with a straight
face that although they do not know what
caused the patient’s injury, they do know
with medical certainty that it was nothing
the defendant did. We also hear with increasing frequency the “my standard is not
the standard” defense. Physicians who write
and teach against what a defendant did
come forward to say that what the defendant did was ok because their own personal
standard of care is not the standard.
And from MedChi, the state doctors’
association, we hear with soap opera fanfare that they support a 28% rate increase
by Medical Mutual even though a 21% rebate was handed out just five months earlier.
Fall 2003
What we do not hear is that MedChi,
through its in-house insurance agency, relies on sales of Medical Mutual policies for
a substantial part of its organizational income.
Without a doubt, intellectual dishonesty increasingly is in vogue among our
adversaries. But that’s where MTLA helps.
MTLA has been my professional family for
many years, and during that time, it has
become clear to me how effective it is in
providing us with the tools to enforce intellectual honesty in our mission to keep
families safe.
You already know that we are the only
organized voice in Annapolis looking out
for the legal rights of regular people.
What you need to know, if you do not
know already, is that we also provide our
members with cutting edge educational
programs and seminars to help train you
on the latest techniques and legal theories
to assist with your cases. We have key documents available online that other well
respected members donate to MTLA to
benefit other lawyers and their clients. We
have a deposition bank second to none in
this State. We have a Listserve that, member for member, is among the most active
in the country among plaintiffs’ bars and
provides you with nearly instant advice from
top notch practitioners on a vexing question that you may be facing that day.
We offer case evaluation services and a
mentor program to newer attorneys. We
now have five (5) specialty practice sections
to help trial attorneys in the areas of family
law, medical negligence, workers’ compen-
sation, nursing home litigation as well as a
new lawyers’ section to address the special
needs of younger lawyers. Our web site is
among the very best state TLA sites in the
country. Our Trial Reporter magazine contains practical articles on trends in the trial
practice and substantive areas of interest to
our members. Our Weekly B-L-A-S-T
email keeps you up to the minute on important developments and trends in the law
and offers practical tips for things such as
legal research available on the internet. We
also provide products, services and sponsors who can help you in your practice, and
our alliances with vendors help you obtain
trial services and information. We regularly file amicus briefs before our appellate
courts. Our committees address a host of
other, important internal aspects of the association.
The point is that the MTLA is out there,
every day, protecting, advocating and advancing your practice and the needs of all
trial attorneys and their clients. Now, more
than ever, we need your involvement, commitment and dedication to this
organization. We need more of you to join
our President’s Club as donors giving above
the dues paying membership status; we
need more new members and better recruitment of those attorneys who do trial work,
but for some reason, have not yet felt the
need to become part of the MTLA family.
We all know the resources our opponents
possess, whether in the courtroom, in the
legislature or on the airwaves.
We have to enforce intellectual honesty,
and the best way is to do it together.
.GV7U&Q;QWT/GFKECN*QOGYQTM
(QZ11%QPPGNN%QPUWNVKPI
/HJDO1XUVH&RQVXOWDQWV
YYYHQZQEQPPGNNEQO
$Q\ FDVH GHDOLQJ ZLWK KHDOWK LQMXU\ RU LOOQHVV
&DVH 6FUHHQLQJ &DVH 6XPPDULHV 7LPHOLQHV &KURQRORJLHV
5HVHDUFK6WDQGDUGV RI &DUH ,VVXHV
Trial Reporter
3
Recent Motor Tort Decisions From
Maryland’s Appellate Courts
by Eric Schloss
Eric N. Schloss (Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC Baltimore). Mr. Schloss is a partner in Gordon, Feinblatt’s,
Personal Injury Practice Group. He received his J.D. degree from the University of Baltimore School of Law in 1994 and his undergraduate degree from the University of Maryland at College Park. Mr. Schloss is admitted to practice law in the State of Maryland, Virginia and the District of Columbia. He is a
member of MTLA’s President’s Club as a Contributor as well as a member of the MTLA Legislative Committee, Education & Programs Committee, and is the Vice-Chair of
the Bicycle Helmet Project.
Prior to joining Gordon Feinblatt, Mr. Schloss practiced at Saiontz, Kirk & Miles where he concentrated in personal injury litigation and workers’ compensation cases.
The following is a survey of recent
appellate cases that are important for any
attorney handling motor tort cases in
Maryland.
Absolon v. Dollahite (Court of Appeals,
No. 7, September Term, 2002, Filed August 27, 2003, Opinion by Eldridge),
reversed the Court of Special Appeals and
remanded the case to the Circuit Court
for Montgomery County for further proceedings. As she walked across Rockville
Pike, Absolon was struck by a motor vehicle operated by Dollahite. Absolon
began crossing the street in a marked
crosswalk after a “walking person” appeared on the pedestrian signal. The
pedestrian signal turned to a flashing “red
hand” as she reached the median. Absolon
4
then checked for oncoming traffic and
continued to cross the street.
Dollahite filed a motion for summary
judgment claiming that under Transportation Article § 21-203, Absolon was
contributorily negligent for stepping off
the median and continuing to cross
Rockville Pike. The statute states that if
a pedestrian has partly completed crossing on a “walking person” signal, the
pedestrian shall proceed without delay to
a sidewalk or safety island while the flashing “hand” signal is showing. On the day
of trial, the circuit court granted
Dollahite’s motion and found Absolon
contributorily negligent per se.
The Court of Appeals held that the alleged violation of § 21-203 of the
Trial Reporter
Transportation Article was only evidence
of contributory negligence and that the
case should have been submitted to the
jury. The court also stated that a statutory violation is not negligence per se,
unless the statute so states.
Allstate v. Kim (Court of Appeals, No.
76, September Term, 2002, Filed July 31,
2003, Opinion by Wilner), affirmed the
judgment of the Circuit Court for Montgomery County. On July 13, 2001,
Nathan Kim, a minor, was a passenger in
a vehicle operated by his mother. Ms. Kim
had pulled to the side of the road to return her son to his car seat. After Ms.
Kim had opened the driver’s side door,
the car began to move forward because
the vehicle gear lever was not in the “Park”
position. Her son then fell out of the car
and was injured.
Earlier that year, the General Assembly passed a law that eliminated
parent-child immunity in a motor tort
action up to the minimum amount of liability insurance coverage as required in
Transportation Article § 17-103(b) (i.e.
$20,000/$40,000). This new law applies
“to any case for wrongful death, personal
injury, or property damage arising out of
the operation of a motor vehicle filed on
or after October 1, 2001.”
After the statute took effect, Mr. Kim
made a claim on behalf of his son against
his wife, Ms. Kim, who was insured by
Allstate. Allstate filed a declaratory judgment action in the Circuit Court for
Montgomery County to determine if it
was liable for coverage. Allstate contended
that: (i) the statute violated provisions of
the Maryland Constitution and the
United States Constitution (including the
Equal Protection Clause of the Fourteenth
Amendment); (ii) the statute did not apply to causes of actions that arose before
October 1, 2001; and (iii) retroactively
applying the law would impair the obligation of contracts.
The Court of Appeals held that the legislature did intend for the statute to apply
Fall 2003
to a lawsuit filed after October 1, 2001
regarding a cause of action that occurred
before that date. The court also found
that retroactive application of the law did
not violate any state or federal constitutional provisions.
Fry v. Carter (Court of Appeals, No.
113, September Term, 2002, Filed June
12, 2003, Opinion by Raker), reversed the
judgment of the Court of Special Appeals
and remanded the case to the Circuit
Court for Montgomery County for further proceedings. Fry was killed while
working on the side of a highway after
being struck by roof trusses extending over
the side of a flat-bed tractor-trailer operated by Carter. The trial court gave an
unavoidable accident instruction and the
jury returned a verdict for the defendant.
The decedent’s family objected to the instruction and appealed.
The Court of Appeals held that it was
reversible error to instruct the jury on unavoidable accident. Most importantly, it
stated that unavoidable accident instructions should not be given in any
negligence cases.
Mason v. Lynch (Court of Special Appeals, No. 849, September Term, 2002,
Filed May 6, 2003, Opinion by Eyler,
James), affirmed the judgment of the Cir-
Fall 2003
cuit Court for Prince George’s County.
Mason was injured during a chain reaction rear-end collision. A motion in
limine was denied and photographs showing minimal damage were shown to the
jury. The jury found the defendant liable, but awarded no damages to Mason.
On appeal, Mason argued that the trial
court should not have allowed the defendant to introduce the photographs and
to use them to infer that Mason was not
injured without expert testimony establishing a correlation between the property
damage and injuries. Mason also claimed
that the trial court should have granted a
new trial on damages because expert witnesses on both sides agreed that he had
suffered at least some injury and, therefore, the verdict of the jury was contrary
to the evidence.
The court held that the trial court did
not abuse its discretion by admitting the
photographs and denying the motion for
new trial as to damages.
Subsequent History: Writ of Certiorari was granted and oral arguments were
held in October 2003.
Boone v. American (Court of Special
Appeals, No. 1772, September Term,
2001, Filed March 26, 2003, Opinion by
Hollander), reversed and remanded the
Trial Reporter
case to the Circuit Court for Baltimore
City for further proceedings. Boone was
injured while a passenger in a vehicle operated by her husband. Boone settled her
claim with the tortfeasor’s insurance company for policy limits. She then filed suit
to recover UIM benefits from her insurance company. During opening
statements, the jury was told that the
tortfeasor’s insurance company had already compensated the plaintiff. Boone
was disappointed with the jury’s award
and appealed it. The court addressed
whether the trial court gave an appropriate instruction to the jury on how to assess
damages in a UIM case.
The court held that the jury should
have been instructed that the sum previously recovered by Boone from the
tortfeasor would be deducted from any
award of damages. The opinion also provided several, alternative jury instructions
for use in a UIM case.
Sherrod v. Achir (Court of Special Appeals, No. 830, September Term, 2002,
Filed February 28, 2003, Opinion by
Eyler, James), vacated summary judgment
and remanded the case to the Circuit
Court for Prince George’s County for fur(Continued on page 6)
5
Recent Motor Tort Decisions
(Continued from page 5)
ther proceedings. The Sherrod automobile was struck in the rear by a motor
vehicle operated by Achir in Maryland.
The plaintiffs were residents of the District of Columbia and were insured by a
policy issued in the District. The plaintiffs filed PIP claims and pursued a
third-party action against Achir.
The defendants filed a summary judgment motion contending that the District
of Columbia Compulsory/No-Fault Motor Vehicle Act, D.C Code Ann. §
31-2405(b) barred the plaintiffs from
pursuing a tort claim after they elected to
receive PIP benefits.
The Court of Special Appeals held
that, under the lex loci delicti doctrine,
Maryland substantive tort law controlled
and that the Act did not bar the thirdparty claim. The court stated that the Act
was part of the District of Columbia’s substantive tort law, and therefore was not
applicable to this Maryland collision.
Practice Advice: It is the opinion of
this author that if the plaintiffs had been
making UM claims, the court would have
precluded same based upon the Act.
Todd v. MTA (Court of Appeals, No.
6
61, September Term, 2002, Filed February 14, 2003, Opinion by Battaglia),
reversed summary judgment and remanded the case to the Circuit Court for
Baltimore City for further proceedings.
Todd was a passenger, seated behind the
rear exit door on an MTA bus when fifteen to twenty kids entered the front of
the bus. Although the juveniles verbally
irritated the passengers in the front of the
bus, the driver did nothing. The group
of kids eventually made their way to the
back of the bus where they confronted
Todd. The juveniles attacked Todd for
about five minutes. The bus driver continued to operate the bus until he pulled
over to the side of the road and hit the
panic button, which summoned the police.
The MTA filed a motion for summary
judgment contending that the driver
could not have prevented the attack because Todd did not present evidence that
the bus driver knew that the plaintiff was
going to be attacked or was in danger of
being attacked.
The Court of Appeals held that the
MTA had a duty to take affirmative action to prevent Todd from the attack, to
take steps to protect the plaintiff from
further attack and to aid Todd. The court
Trial Reporter
discussed in detail the duty of care a common carrier owes to its passengers.
Hodge v. Babel (Court of Special Appeals, No. 1930, September Term, 2001,
Filed January 30, 2003, Opinion by
Salmon), affirmed the judgment of the
Circuit Court for Anne Arundel County.
Hodge was injured in a motor vehicle
collision caused by Babel, who admitted
liability before trial. The case then proceeded before the jury on the sole issue of
damages. At trial, Babel walked with a
cane, was unsteady, and had difficulty rising from his chair. Despite objections,
Babel was allowed to testify that after the
occurrence he was diagnosed with multiple sclerosis and, as a result, was now
unemployed. After receiving a disappointing jury award, Hodge appealed.
The Court of Appeals held that it was
not an abuse of discretion for the trial
judge to allow Babel, as factual background, to give a brief explanation of the
cause of his physical condition. The court
reasoned that, without an explanation, the
jury could have thought that Babel’s disability caused Hodge’s injuries.
Practice Advice: In this opinion, the
court reminds plaintiffs’ attorneys that
before introducing exhibits into evidence
during a jury trial, all mention of any in-
Fall 2003
surance should be redacted. According
to the Court, failure to do so will arouse
the curiosity of jurors.
Hams v. Nationwide (Court of Special
Appeals, No. 1573, September Term,
2001, Filed December 23, 2002, Opinion by Kenney), affirmed the judgment
of the Circuit Court for Prince George’s
County. Hams insured a pickup truck
with Nationwide under a commercial insurance policy. The policy contained
liability coverage of $500,000 and uninsured/underinsured coverage of $50,000.
There was no written waiver by Hams
agreeing to the difference between the liability and UM/UIM limits. The Hams
vehicle was used for both business and
personal purposes. While being driven
for personal use, the Hams pickup truck
was involved in a collision. The two occupants of the Hams vehicle sustained
injuries that exceeded the insurance coverage of the tortfeasor and the UIM
coverage available under the pickup truck’s
policy.
The plaintiffs filed a lawsuit requesting that the Nationwide policy issued to
Hams be reformed to increase the UIM
coverage to equal that of the liability coverage. Nationwide filed a motion for
summary judgment contending that the
written waiver requirement contained in
§ 19-510 of the Insurance Article did not
apply to commercial policies. The motion was granted by the trial court.
After reviewing the language of the
statute, the legislative history and other
sections of the Insurance Article, the
Court of Appeals held that the written
waiver requirements in § 19-510 did not
apply to a commercial policy.
Faulk v. Ewing (Court of Appeals, No.
39, September Term, 2001, Filed October 10, 2002, Opinion by Harrell),
reversed and remanded with directions to
affirm the judgment of the District Court
for Talbot County. Faulk was involved in
a motor vehicle collision with Ewing, who
was operating a car belonging to the
Easton Utilities Commission, which in
turn was owned and operated by the Town
of Easton. An attorney on behalf of Faulk
placed The Hartford Insurance Company
on written notice of a claim being made
against its insured, Easton. The Local
Government Tort Claims Act (“LGTCA”)
requires that proper notice be given to the
Town of Easton under Courts and Judicial Proceedings Article § 5-304.
At the conclusion of Faulk’s case, the
Defendant moved to dismiss the case contending that Faulk had not provided the
required notice to the Town of Easton
under § 5-304. The district court denied
Fall 2003
the motion. On appeal the Circuit Court
for Talbot County reversed the judgment
of the district court.
The Court of Appeals held that Faulk
had shown substantial compliance with
the LGTCA. The court ruled that the
underlying purpose of § 5-304 was satisfied by the notice to the insurer for the
local government. The court further
stated that when the purpose of the notice requirements is fulfilled, but not
necessarily in a manner technically compliant with all the terms of the statute,
such substantial compliance satisfies the
statute.
Practice Advice: Heed the Court’s recommendation to become familiar with
the requirements of the LGTCA.
Andrade v. Housein (Court of Special
Appeals, No. 751, September Term, 2001,
Filed October 8, 2002, Opinion by
Getty), reversed and remanded to the
Circuit Court for Montgomery County
for new trial. At trial, Andrade proved
that while waiting to make a right turn,
he was stopped for twenty to thirty seconds at an intersection before he was
rear-ended.
At the conclusion of the plaintiff ’s case,
the defendant successfully moved for
judgment. The trial judge ruled that the
mere happening of an accident is not evidence of negligence.
The Court of Special Appeals held that
the facts in this case gave rise to an
unrebutted presumption of negligence.
The rear-end collision was not disputed
and therefore supported an inference or
presumption of negligence. The court
also held that the factfinder may reasonably infer that the driver of a vehicle is
negligent when another is injured after
that driver rear-ends a vehicle that is lawfully stopped on a highway and awaiting
traffic to clear before entering an intersecting highway. Accordingly, a trial court
may direct a verdict for the plaintiff if the
defendant does not attempt to rebut the
presumption of negligence.
6XSSRUW
07/$·V
63216256
07/$·V2IILFHUVDQG%RDUGRI*RYHUQRUVUHFUXLWHGPRUHWKDQ
VSRQVRUVLQWKHSDVW\HDUWRSURPRWHWKHLUVHUYLFHVZLWK
07/$7KHVSRQVRUVSODFHDGVLQRXUYDULRXVSXEOLFDWLRQV
DQGVXSSRUWRXUSURJUDPVDQGHYHQWV7KH\EULQJDGGHG
EHQHILWWR\RXU07/$PHPEHUVKLSDQGRIIHUDUDQJHRIYDOX
DEOHSURGXFWVDQGVHUYLFHVWKDWDVVLVWODZ\HUVDQGFOLHQWV
07/$HQFRXUDJHVLWVPHPEHUVWR6XSSRUWRXU6SRQVRUV
EHFDXVHWKH\VXSSRUW07/$
07/$·6 6321625 352*5$0 3$57,&,3$176
3/$7,180 /(9(/
$WODVW +HDOWK &DUH 7KH 'DLO\ 5HFRUG
(YHUJUHHQ 6WUXFWXUHG 6HWWOHPHQWV //&
/$' 5HSRUWLQJ 0DU\ODQG &KLURSUDFWLF 5HKDELOLWDWLRQ
7KH 0F1HLOO *URXS 0XOWL6SHFLDOW\ +HDOWKFDUH
'U 6WHLQ 'U /HUPDQ 3$ 6'9 +HDOWK&DUH &RQVXOWDWLRQ //&
7KRPDV $VVRFLDWHV$;$ 6HWWOHPHQW 3ODQQLQJ
7KRPVRQ :HVW 7KH <HOORZ %RRN
*2/' /(9(/
7KH &HQWHU IRU )RUHQVLF (FRQRPLF 6WXGLHV
6,/9(5 /(9(/
$UW 0LOOHU $VVRFLDWHV %%7 %DQN
&UHDWLYH )LQDQFLQJ 6ROXWLRQV (OOLQ 7XFNHU &KDUWHUHG
5HKDELOLWDWLRQ ([SHUWV RI 0' 5H[ 'U 5R\ 5RVHQWKDO
7DQQHQ 6HWWOHPHQW $VVRFLDWHV :DOOV 5HSRUWLQJ
%521=( /(9(/
$O %HW] $VVRFLDWHV ,UZLQ 5HSRUWLQJ 9LGHR
/(; %XVLQHVV 6ROXWLRQV
)RU PRUH LQIRUPDWLRQ RQ WKH 07/$ 6SRQVRU 3URJUDP FRQWDFW 07/$ DW
RU HPDLO XV DW DUQLH#PGWULDOODZ\HUVFRP
Trial Reporter
7
Rules of
Procedure Update
by David Kopstein, Co-Chair MTLA Amicus Committee
David M. Kopstein (Dross, Levenstein, Perilman & Kopstein in Seabrook) received his J.D. From Georgetown University. He is a
member of the MTLA President’s Club as a Contributor and serves on MTLA’s Amicus and Technology Committees. Mr. Kopstein is an
active member of ATLA and serves on its Publications Committee. He also practices in the District of Columbia and in Virginia, where he is a member of the Fairfax Bar
Association. His practice areas include medical negligence, products liability, insurance coverage and appellate matters.
NEW RULES WILL ADDRESS “SHAM AFFIDAVIT” PROBLEM
The Court of Appeals is in the process
of adopting amendments to Rules 2-501
and 2-415 that are intended to address
the “sham affidavit” problem that was discussed by the Court in Pittman v. Atlantic
Realty Co., 359 Md. 513 (2000). The
amendments are expressly intended to
encourage trial judges to grant summary
judgment motions more often. Under the
amended rules, trial judges who are deciding summary judgment motions will
be required to strike any affidavit opposing summary judgment that contradicts
the affiant’s earlier deposition testimony.
There will be a narrow exception for affidavits which raise new facts that were not
known at the time of the deposition. At
the same time, the rules are being changed
to allow deponents to make substantive
changes to deposition testimony up to 30
days from the date on which the transcript
is mailed.
The new rules are expected to go into
effect on January 1, 2004.
8
Trial Reporter
Fall 2003
Fall 2003
Trial Reporter
9
Handling The Minor Property Damage
Accident: Miracles Can Happen
by James K. MacAlister
James K. MacAlister, (Saointz, Kirk & Miles, Baltimore) is a graduate of the University of Baltimore Law School, Magna Cum Laude, 1984 and Frostburg State College, Cum
Laude, 1979. He is admitted to practice before Maryland state and federal courts since 1985 and is admitted but on inactive status in PA and NJ. His has a general practice
concentrating in Personal Injury and Workers’ Compensation Claims. He is a member of MTLA member and has written two amicus briefs and testified before Legislative
Committees. He is also a member of the MTLA President’s Club as a Contributor. He has lectured and written for MICPEL on preparation and trial of a personal injury case.
It was Marcus Tillius Cicero who said,
“when you have no basis for an argument,
abuse the plaintiff.” This strategy, conceived long before anyone spilled
McDonald’s coffee or heard of so called
“lawsuit abuse,” is the hallmark of what
has become a pox on trial lawyers’ houses:
the minimal property damage accident.
Is there a plaintiff ’s lawyer who has
never been vexed with a credible client,
credible medicals, credible lost wages and
credible residual pain, only to have the
case rendered “un-credible” when the jury
finds out there was little or no damage to
the cars? To say that juries aren’t buying
minor property damages cases is an un-
derstatement. Once they’re shown the
photographs or an estimate, or hear that
the car wasn’t badly damaged, jurors stop
listening. See Mason v. Lynch, 151 Md.
App. 17, cert granted 374 Md. 582 (2003)
(plaintiff ’s verdict for $“0.00”).
Before tackling how to defend against
this defense, it is important to examine it
for what it is. The nucleus of the argument is rooted in the supposed, innate
“commons sense” of fact finders - that
for personal injury to occur, there must
be property damage. But the argument
runs deeper than a mere “questioning” the
credibility of injuries. It is, to be blunt,
an accusation that the accident victim and
the health care providers who rendered
treatment are not telling the truth – because nobody could have been injured in
such a minor accident.
Those looking for a magic cure all for
what ails minor property damage claims
are not going to find it here. These cases
are difficult to try and even harder to win.
There is, however, a three pronged plan
that may help save these cases: 1) employ
evidentiary or tactical devices to minimize
taint or to exclude the information; 2)
rebut the inference that the client is lying
by bolstering the credibility of the claim;
and 3) debunk the “common sense” notion with expert testimony.
LEGAL/PROCEDURAL DEVICES
Exclude Evidence/Limit Argument
There are some jurisdictions that bar
“any inference by the jury that minimal
damage to the plaintiff ’s car translates into
minimal personal injuries to the plaintiff ”
unless there is expert testimony on the
subject. Davis v. Maute, 770 A2d 36, 40
(Del. 2001) (issue not “within the knowledge of experts and not within the
common knowledge of laymen”). Maryland is not one of those jurisdictions. In
a May 2003 opinion, the state’s intermediate appellate court found no error
stemming from the admission of photographs depicting minor property damage.
Mason v. Lynch, supra.
So, too, it upheld the lower court’s decision to permit closing argument based
upon photographs that “showed minimal
damage to appellant’s vehicle.” Keep in
mind that Mason is pending before the
Maryland Court of Appeals, where it has
been briefed and argued. Until that Court
issues its decision, it is wise to examine
Mason’s holding closely.
Photographs
It should be noted that not every picture is admissible. Rather, the rules require
that it be authenticated by “a witness with
first-hand knowledge that the photograph
10
Trial Reporter
Fall 2003
is what its proponent offers it to be.” L.
Mclean, 5 MARYLAND EVIDENCE
STATE AND FEDERAL §4:403.a.ii.
(2001). Since it is the plaintiff who is
often asked if the defense photograph
“fairly and adequately” depicts the damage, the plaintiff should understand that
the photograph might not. Not only does
the camera lens sometimes gloss over a
dent or buckle, but there may be interior
or structural damage not readily visible.
In Mason, the appellant sought review
of the trial court’s decision to admit the
property damage photographs. To be admissible, evidence must be both relevant,
Md. Rule 5-401, and the court must find
that “its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury.” Md. Rule 5-403. Mason, balancing these interests, rejected a rule of
per se exclusion, vesting the “admission of
such evidence” to “the sound discretion
of the trial court.” 151 Md. at 23-24.
Just as Mason stands for the proposition
that property damage photographs are not
per se excluded, so too, by committing the
issue to the trial court’s discretion, it does
not call for their per se admission.
The opinion begins its analysis with a
recognition that the defense “did not admit liability and, therefore, forced
appellant to carry the burden of proof on
liability as well as damages.” 151 Md. at
22. Nowhere, though, is there an explanation as to why the defendant’s property
damage photographs become more probative if liability is at issue. It may be
that, in a rear-end collision, minimal impact may suggest that the defendant was
not following too closely. See Brehm v.
Lorenz, 206 Md. 500 (1955)
In those cases where liability is not an
issue, Mason suggests that arguments advocating the admission of the
photographic evidence is less compelling.
treatment, and lost wages.” 355 Md. at 57.
The Mason court, branding the minor
property damage reference a Farley-sanctioned effort to “cast doubt,” allowed it. 151
Md. App at 27. There are a number of issues generated by this holding.
First, Farley is not a blanket endorsement
of such comments. Among the reasons cited
to affirm in Farley was counsel’s failure to
“immediately object so that the trial judge
could promptly rule on the matter.” 355
Md. at 59. It remains to be seen, therefore,
with proper objection, if comments about
minor property damage should be given the
wide latitude the Court of Special Appeals
afforded them.
Second, defense counsel in Mason “did
not attempt to make specific arguments
that would call into play scientific principles that might require expert
testimony.” 151 Md. App at 27. What
remains unresolved is how much can be
made of minor property damage before
that argument shades into a quasi-scientific claim that injury cannot happen in
the absence of property damage.
Third, although the reference is somewhat cryptic, a Mason footnote alludes to
a reference in a plaintiff-submitted medical report “which contained the opinion
that there is no correlation between the
damage to a vehicle and the nature and
extent of injury sustained by an occupant
of that vehicle.” 151 Md. App at 25, n.2.
Noting that the “jury was free to believe
or disbelieve all or part of the contents of
the report,” the footnote suggests that, by
placing that opinion into evidence, the
plaintiff may have inadvertently “opened
the door,” and permitted opposing coun-
sel to question the weight the jury should
give the property damage/causation opinion.
Property Damage Estimates
An estimate is nothing more than an
opinion of vehicle damage. Without the
testimony of the appraiser, the opinion is
not only hearsay, Md. Rule 5-801, but it
also lacks the information needed to
qualify the expert’s conclusions. Md. Rule
5-702 (foundation requirements). Also,
it is an opinion regarding the value of services invoiced, without a witness to testify
that the amounts billed are fair and reasonable. Desua v. Yokim, 137 Md. App.
138, 144 (2001)
It is worthy to note that not every estimate correctly documents all the
property damaged. A bumper cover may
hide damage. Estimates are, as the name
implies, an opinion as to what it will cost
to fix the car. Often, once the repairs begin, additional damage is discovered. Do
not assume that the insurance company’s
estimator will comb the car for damage.
Nor it is wise to assume that body shops
will willingly assume adversarial positions
to insurance companies that pay their bills
and send them work.
Prior/Subsequent Injuries
Evidence of prior or subsequent injury
offers the jury the opportunity to believe
the plaintiff that there is an injury, while
awarding nothing - because the pain stems
from an unrelated incident. To disprove
causation, by suggesting a prior or subse(Continued on page 13)
Argument of Counsel
Having upheld the admissibility of the
photographs, the Mason court turned to
the defense’s closing argument that the
jury “should go back there, use your common sense, draw on your every day
experiences, look at the photographs of
the vehicle, and ask yourself does it make
sense, $13,000 in medical expenses.” 151
Md. App at 25.
The Court began its analysis by reviewing Farley v. Allstate Insurance Co., 355 Md.
34 (1999), a case where the Court of Appeals found no error in a closing argument
that, without expert testimony to back it
up, “cast doubt upon the reasonableness and
necessity of [the plaintiff ’s] medical bills,
Fall 2003
Trial Reporter
11
MTLA Education and Programs Committee Presents the 2004 Edition of…
THE WORKHORSE SEMINAR
Learn from the Masters
Moderators: Philip Federico & Kerry Staton
(Schochor, Federico & Staton)
Friday, January 16, 2004
Radisson Lord Baltimore Hotel, Baltimore City
Speakers include the Best of the Best:

(speakers listed in alphabetical order)
Dale Adkins
David Albright
Matt Ballenger
Roger Bennett
Timothy Capurso
Patrick Christmas
Vicki Dexter
Phil Dorsey
Henry E. Dugan, Jr.
Michael Freilich
David Harak
Richard Jaklitsch
Rob Jenner
Albert Lechner
Kevin McCarthy
William H. Murphy, Jr.
Steve Nevin
Peter Nichols
Dennis O’Brien
Stuart Salsbury
Nicole Schultheis / Simon Walton
Tom Yost
Additional Speakers:
Brian Lerman, M.D.
Drs. Stein & Lerman, P.A.
Dr. Lerman is the first speaker of the day; his multimedia presentation will focus on proving
injuries and damages in low-impact accidents, GET IN YOUR SEAT EARLY!!
Adam Miller
Evergreen Structured Settlements
Mr. Miller will speak about the pit falls to watch for, and how to make structured settlements
better serve your clients.
For Registration information: Call MTLA at 410-539-4336, e-mail us at
jbond@mdtriallawyers.com or visit MTLA website www.mdtriallawyers.com.
12
Trial Reporter
Fall 2003
Miracles Can Happen
quent injury is to blame, the defense generally must offer expert testimony. S.B.
Thomas, Inc. v. Thompson, 114 Md. App.
357 (1997). Bear in mind that many of
the plaintiff ’s treating medical records
may also reference the unrelated injuries.
LITIGATION ISSUES
Why a Jury Trial
The threshold for a jury trial prayer is
when the “amount in controversy exceeds
the sum of $ 10,000.” Md. Const., Declaration of Rights., Art. 23. What this
means is that a case can be filed as nonjury in either the district court or the
circuit court, provided the amount
claimed does not exceed $10,000.00. Md.
Cts. Jud. Proc. Art. §§ 4-401, 4-402.
Before filing in a given county or Baltimore city, it is wise to investigate whether
a court or jury trial is advisable. Keep in
mind that an $8,000.00 verdict from a
judge, based upon $5,000 to $6,000 in
“specials” is better than “0.00” from a
jury.
Venue
There are venues where the juries are
less critical of minimal property damage
plaintiffs. Keep in mind that venue lies
not only where a defendant “resides,” but
also where that party “carries on a regular
business, is employed, or habitually engages in a vocation.” Md. Cts & Jud. Proc.
Art. §6-201(a). Un/underinsured motorist carriers do business statewide; an
action against a “non-resident individual”
can be brought in any venue. Md. Cts. &
Jud. Proc. Art. §6-202(11).
Liability
Given Mason’s citation of liability as a
reason supporting the admission of photographs, a motion for summary
judgment adjudicating liability issues is
of greater importance.
Motion for New Trial
Not every jurist is pleased with a defense victory, especially when the plaintiff
has presented a compelling case. A motion for new trial, if timely filed, affords
the court the opportunity to give that
plaintiff another day in court. Md. Rule
2-533. Once granted, the decision is virtually not reviewable on appeal. Cf
Mason, 151 Md. App at 28 (upheld refusal to grant a new trial upheld, despite
the defense expert’s testimony that that
plaintiff was injured). But see Lemon v.
Fall 2003
Ernst, 822 A.2d 768 (Pa. Super. 2002)
(failure to grant new trial error where defense expert states the plaintiff is injured).
FACTUAL ISSUES
Preparation of the Plaintiff ’s Testimony
Any contradictions, no matter how
small, are magnified in the eyes of a jury
already predisposed by “common sense”
to disbelieve the plaintiff. Contradictions
between trial testimony, depositions and/
or interrogatory answers only serve to
“confirm” what skeptical jurors are thinking. It is important to caution the plaintiff
that the jury is unlikely to “buy” the notion that a minor property damage
accident caused “excruciating” or disabling pain.
Corroboration of the Injury
Testimony from family members, coworkers, ministers and friends confirms
what the plaintiff has said all along: the
accident caused injury. These witnesses
help frame the question “are all of these
people really lying?”
Testimony of Treating Health Care Provider
With the adoption of Md. Cts. & Jud.
Proc. Art. §10-104, most minor property
damage personal injury cases are tried
without the testimony of the treating
health care providers. On some occasions,
the testimony of a family doctor might
go a long way toward validating the client’s
injuries. A district court judge, quick to
cut bills, may think twice if there is a live
witness there to explain them. However,
calling an expert to the stand allows the
defense to cross-examine about lawyer
referred patients and the income derived
from such referrals.
ATTACK THE COMMON SENSE –
EXPERT TESTIMONY
Maryland permits expert testimony “in
the form of an opinion or otherwise, if
the court determines that the testimony
will assist the trier of fact to understand
the evidence or determine a fact in issue.”
Md. Rule 5-702. Although the Mason
decision ruled that expert testimony is not
a precondition to the admission of property damage photographs, it is silent on
whether the plaintiff can call a biomechanics expert to refute the notion that
injury requires property damage.
The Rules require that the court “shall
determine (1) whether the witness is qualified as an expert by knowledge, skill,
experience, training, or education; (2) the
appropriateness of expert testimony on
the particular subject; and (3) whether a
sufficient factual basis exists to support
the testimony. Md. Rule 2-702. The biomechanics expert, before being allowed to
testify, must show that he or she is sufficiently trained in the scientific issues
involved, Sloan v. Clemmons, 2001 Del
Super. LEXIS 535 (Del. Super. 2001)
(“whether a particular trauma caused a
particular injury requires and answer form
an expert trained in the healing arts”), that
the “science” behind the opinions offered
passes muster under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S.Ct. 2786 (1993); Martel v. Allstate,
790 So.2d 767 (La. App. 2001) (former
police officer rendered opinion based
upon improper science); and that there is
a sufficient, factual basis to support the
opinion offered.
CONCLUSION
As this article began, so shall it end.
There is no incantation or spell that will
protect accident victims who are not
“lucky” enough to have their cars totaled.
But, start with an appreciation of the nature of the defense, add a plan to minimize
the stigma of minor property damage,
toss in a dash of good luck and the right
jury – and miracles can happen.
get published. . .
Do you have an idea for an article that you would like to see
published in MTLA’s Trial Reporter? Would you like to see
one of your briefs converted into an article?
YOU CAN!
Contact Robert Lembo at
410-539-4336
Trial Reporter
13
3UHVLGHQW
V&OXE
$V RI 1RYHPEHU 07/$ ZRXOG OLNH WR DFNQRZOHGJH WKRVH PHPEHUV ZKR FXUUHQWO\ PDNH VXEVWDQWLDO PRQWKO\ GRQDWLRQV EH\RQG WKH UHTXLUHG DQQXDO PHPEHUVKLS
GXHV 7KH JHQHURVLW\ RI WKHVH PHPEHUV DQG WKHLU FRPPLWPHQW WR WKH JRDOV RI WKH DVVRFLDWLRQ VLJQLILFDQWO\ HQKDQFHV RXU OHJLVODWLYH HIIRUWV DQG RXU
DELOLW\ WR SURYLGH YDOXHG PHPEHU VHUYLFHV DQG EHQHILWV
($*/(6PRQWKO\
'DYLG ) $OEULJKW -U
+HUEHUW $UQROG
5RJHU %HQQHWW
$XJXVWXV ) %URZQ
:LOOLDP & %XUJ\
%DUU\ 0 &KDVHQ
3DWULFN - &KULVWPDV
$OIUHG ( &ODVLQJ ,,,
'DQLHO 0 &OHPHQWV
(YHO\Q 2$ 'DUGHQ
3KLOLS & )HGHULFR
'DYLG $ +DUDN
5LFKDUG / -DNOLWVFK
5REHUW . -HQQHU
5REHUW : .DW]
$OLVRQ ' .RKOHU
:DOWHU ( /DDNH -U
- 0LWFKHOO /DPEURV
.HYLQ - 0F&DUWK\
:LOOLDP + 0XUSK\ -U
3HWHU 7 1LFKROO
'HQQLV ) 2·%ULHQ
-DFN + 2OHQGHU
%UXFH 0 3OD[HQ
'RQDOG 6 6DLRQW]
-RQDWKDQ 6FKRFKRU
0DUFXV = 6KDU
.HUU\ ' 6WDWRQ :D\QH 0 :LOORXJKE\
7KRPDV ) <RVW -U
)281'(56PRQWKO\
'RY $SIHO
$QGUHZ ( %HGHUPDQ
3DXO ' %HNPDQ
+HQU\ / %HOVN\
.HQQHWK 0 %HUPDQ
:LOOLDP - %ORQGHOO -U
-RQ : %UDVVHO
& &KULVWRSKHU %URZQ
3 3DXO &RFRURV
%DUU\ 0 &RKHQ
6WHYHQ 0 &RRSHU
-RKQ ); &RVWHOOR
-DPHV - 'HEHOLXV
3KLOLS + 'RUVH\ ,,,
+DUROG 3 'ZLQ
$ODQ / )LVKEHLQ
3KLOLS 2 )RDUG
0LFKDHO $ )UHHGPDQ
0LFKDHO / )UHLOLFK
(OL]DEHWK -HVXNLHZLF] )UH\
(ULN ' )U\H
5RGQH\ 0 *DVWRQ
$ $OODQ *HUWQHU
/HVOLH / *ODGVWRQH
-HIIUH\ 6 *ROGVWHLQ
+HQU\ , *UHHQEHUJ
.HQQHWK 2 +DVVDQ
$OODQ +HQHVRQ
+HQU\ +RO]PDQ
$ODQ * +RUZLW]
+RZDUG $ -DQHW
$QGUHZ + .DKQ
%XUW 0 .DKQ
5RQDOG $ .DUS
&XUWLV - .DUSHO
-RHO / .DW]
&KDUOHV 0 .HUU
'DYLG 0 /D&LYLWD
/HRQDUG - /HYLQH
1HLO - /HZLV
-XGVRQ + /LSRZLW]
'LDQH 0 /LWWOHSDJH
/RXLVH $ /RFN
&KULVWLDQ /RGRZVNL
6KHOGRQ 0D]HOLV
.DWKOHHQ + 0HUHGLWK
5REHUW 5 0LFKDHO
-DPHV 6 1LFNHOVSRUQ
/HRQDUG $ 2UPDQ
3KLOOLSV 3 2·6KDXJKQHVV\
.DUO 3URWLO
0DUF 6 5RVHQ
6WXDUW 0 6DOVEXU\
/HH 6DOW]EHUJ
5REHUW * 6DPHW
-RKQ - 6HOOLQJHU
+DUU\ % 6LHJHO
%DUU\ / 6WHHOPDQ
3DXO 7 6WHLQ
*HRUJH 6 7ROOH\ ,,,
3DXO * 7RO]PDQ
*HUDUG 3 8HKOLQJHU
*UHJRU\ . :HOOV
(XJHQH 0 =RJOLR
&2175,%87256PRQWKO\
( 'DOH $GNLQV ,,,
(OOLRWW $QGDOPDQ
0RUULV ( %DOVHU
'DYLG 5 %DW]HU
%UXFH 0 %HQGHU
+DUU\ : %ORQGHOO
&KULVWRSKHU 3 %URZQ
'ZD\QH $ %URZQ
:DUUHQ $ %URZQ
7KRPDV &DUGDUR
5REHUW 9 &ODUN -U
$GDP 6HDQ &RKHQ
-RKQ - &RQGOLIIH
/HRQDUG , 'HVVHU
:LOOLDP 6 *DQQ
.HYLQ , *ROGEHUJ
0LWFKHOO $ *UHHQEHUJ
$QGUHZ ( *UHHQZDOG
6WHSKHQ - +XJKHV
'DYLG 0 .RSVWHLQ
$ODQ ' /HYHQVWHLQ
(PDQXHO 0 /HYLQ
/DXUHQFH $ 0DUGHU
6WHSKHQ $ 0DUNH\ ,,,
/DUU\ 0HOID
0LFKDHO 6 0RUJHQVWHUQ
0DWWKHZ 0 3DDYROD
6WHYHQ 0 3DYVQHU
-HIIUH\ - 3OXP
3KLOOLS / 3RWWV
0LFKDHO $ 3XOYHU
%UXFH 0 5RELQVRQ
(ULF 1 6FKORVV
-DFN -D\ 6FKPHUOLQJ
-HIIUH\ 5 6FKROQLFN
-HURPH - 6HLGHQPDQ
:HQG\ / 6KLII
0HOYLQ 1 6LHJHO
3DWULFN - 6PLWK
0LFKDHO :DUVKDZ
5RJHU 6 :HLQEHUJ
,UZLQ ( :HLVV
5REHUW -XOLDQ =DUELQ
6833257(56PRQWKO\
+DUU\ 5 $GOHU
5LFKDUG 0 %DGHU
$ODQ - %HOVN\
'RQ %HQWHU
0LFKDHO %HUHVWRQ
%UXFH $ %OD\ORFN
5LFKDUG 1 %ORRP
%HQMDPLQ 7 %RVFROR
5 5RODQG %URFNPH\HU
'ZD\QH $ %URZQ
:LOOLDP 5 %XLH ,,,
'DQLHO : &DJDQ
)UDQFLV - &ROOLQV
$QGUHZ & &RRSHU
3 0DWWKHZ 'DUE\
-RVHSK ( 'HYHU
9LFNL / 'H[WHU
'DYLG 9 'LJJV
3DWULFN 0 'RQDKXH
/RQ (QJHO
'DYLG )HOGVWHLQ
.HYLQ - )LQQHJDQ
$QGUHZ ' )UHHPDQ
-RVHSK ( *ODVV
6XVDQ 5 *UHHQ
/DUU\ 6 *UHHQEHUJ
&KDUOHV ) *RUPO\
&DOYLQ , +DPEXUJHU
5D\PRQG 0 +HUW]
3HWHU $ +ROODQG
*HUDOG , +ROW]
-DPHV % +RSHZHOO
-RVHSK %DUU\ +XJKHV
9DLO $ .DXIPDQ
7KRPDV .OHLQ
5RQDOG - .OHPNRZVNL
-DPHV 3 .RFK
) .LUN .RORGQHU
6WHYHQ % /HEDX
$OEHUW + /HFKQHU
(PDQXHO 0 /HYLQ
6KHOGRQ + /HYLWW
(ULF 6 /LSVHWWV
*UHJRU\ /RFNZRRG
0LFKDHO 0DUPHOVWHLQ
-DPHV . 0DF$OLVWHU
&KDUOHV ( 0DW]
-DPHV 0 0RUULVVH\
* 0DF\ 1HOVRQ
5LFKDUG 3 1HXZRUWK
6FRWW 1HYLQ
0DU\ (OOHQ 1LOHV
-RVHSK + 2VWDG
(GZDUG 7 3LQGHU
'HERUDK / 3RWWHU
7UR\ 3RZHUV
)UHGHULFN 5DDE
:LOOLDP ) 5LGGOH
-RQDWKDQ % 5XGLH
/HR 5\DQ -U
&DUO % 6DLRQW]
(ULF $ 6DLRQW]
, 6WHYHQ 6HLJHO
(XJHQH $ 6KDSLUR
-RHO - 6KXJDUPDQ
6WHYHQ ' 6LOYHUPDQ
'DYLG 0 6LPSVRQ
$QGUHZ * 6OXWNLQ
0LFKDHO % 6Q\GHU
: 6FRWW 6RQQWDJ
)UDQN : 6SHFWRU
<DOH 6SHFWRU
-DPHV & 6WURXVH
0LWFKHOO ' 7UHJHU
-RVHSK $ 7UHYLQR
.HQQHWK 0 7URPEO\
0RQLFD 0H\HUV 7XUQER
'XDQH 9HUGHUDLPH
6WHYHQ 0 9RJHOKXW
7KRPDV ( :DONHU
3DXO - :HEHU
$ 'DYLG =HULYLW]
0RQWH <ROOHV
14 Year Club Member. Denotes that the donor has been aTrial
Reporter
Fallor2003
* Ten
member
of the President’s Club for ten (10) consecutive years
more.
Is Common Sense
Non-Sense?
by Dr. Brian Lerman
Dr. Brian Lerman, (Dr. Stein & Dr. Lerman, P.A.) is a chiropractor in Owings Mills, MD and a qualified expert in Human Occupant Dynamics. He teaches “The
Biomechanical Reality of Low Speed Crashes” to first responders, including police officers and paramedics. He is certified in Whiplash Traumatology, has participated in
three full scale research crash test projects involving live human subject volunteers and has consulted for numerous insurance companies on the peer review process. He is a
member of the Society of Automotive Engineers and maintains a private practice.
If you have ever litigated a low property damage crash case, more than likely
you have encountered the defense argument that bodily injury must have been
minimal or absent. This erroneous position has no foundation and makes about
as much sense as paying the survivor benefit to the occupant of a vehicle just
because his car was totaled.
Lay people, without knowledge of human crash dynamics, attempt to equate
vehicle property damage with the likelihood or even severity of personal injury
as though bumper damage was some sort
of bodily injury index. Common sense is
based on common experience. People
know that if a chair is tipped backwards
far enough, it will fall over. On the other
hand, judging the speed, force and injury
potential of a collision based on photographs of vehicle damage is not part of
common experience. Experts in Human
Occupant Dynamics, which instructs in
both physics and medicine; however,
are trained to evaluate many of the factors that must be considered in assessing
personal injury. They know that consideration must be made for an infinite
number of human variables, and that
people cannot be rigidly categorized or
systemized into charts, graphs or algorithms for the purpose of establishing
prognosis and treatment. The job of an
expert in Human Occupant Dynamics is
to assess each person individually and to
consider the following factors in their
evaluation process:
Pain Threshold
People experience different levels of
pain based on their genetically encoded
quantum of opiate receptors.
History of a Previous Crash
If a person has been in a previous
crash, they may be more vulnerable to
trauma as a result of the first crash.
Abnormal Physiological Movement of
the Vertebrae
Normally, when the head moves
forward and backwards, all of the vertebrae participate equally and safely in
the movement. With cervical acceleration/deceleration trauma, the injury
occurs due to shear, an abnormal
physiological movement where one
bone slides over another. The injury
producing mechanism occurs even before the head touches the head
restraint.
Spinal Degeneration
The degenerated spine is biomechanically stiffer, causes the deforming
(Continued on page 16)
THE CENTER FOR FORENSIC
ECONOMIC STUDIES
Gender
Females are twice as likely to be injured as males. In general, females have
weaker muscles, slower reflexes, a thinner column of bones and a relatively
longer neck supporting the 10-12
pound head.
Height
There is a greater risk for the taller
occupant as his head is further from
the center of gravity.
Age
With advancing age, connective tissues become more inelastic and are
more easily torn.
Fall 2003
Trial Reporter
15
Is Common Sense Non-Sense?
forces to be less evenly distributed and
results in greater damage.
Awareness of the Crash
Occupants caught by surprise are
15 times more likely to develop
chronic symptoms. Being aware and
braced, increases the duration of the
crash and allows the force to be more
tolerable.
Preparedness for the Crash
Awareness is not the same as preparedness.
Crash Duration
The occupant of the bullet vehicle
undergoes a long duration crash with
ride down time. The occupant of the
target vehicle undergoes a very short
duration crash.
Position in Vehicle
People do not always sit in a perfect position. Higher loads have been
found when the body was leaned forward as the head creates downward
pressure on the spine.
Head position
Occupants are more likely to be injured if their head is rotated at the time
of impact. Rotation pre-stresses the
facets, capsule and disc and produces
less motion before the pliability of
muscle bottoms out. A 45 degree rotation decreases extension by 50%.
Head Restraint
Neck stresses are higher with a
lower head restraint than with no restraint at all. According to the
Insurance Institute for Highway Safety,
only 3% of head restraints are good
and 90% of the time they are improperly adjusted.
Seat Belt
Seatbelts only prevent acceleration
of the trunk, not the head. The lap
belt and shoulder harness cause a relative increase in the head acceleration
in relation to the torso.
Seatback
A soft seatback is undesirable as a
driver may end up in the rear seat when
the car is accelerated beneath him. A
stiff seatback is undesirable as it may
accelerate the torso forward while the
head continues to move rearward and
amplify the extension phase of injury.
An inclined seatback increases cervical compressive loads and causes injury
to the facet.
Heavy Braking
Heavy braking places the occupant
forward in the seatback and increases
back set - the distance between the base
of the skull and the top of the head
restraint.
Relative Size of Vehicles
Impact speed alone is of little relevance since the consequence of a low
speed crash is largely dependent on the
relative sizes of the involved vehicles.
Size and Speed of the Striking Vehicle
The speed and size of the bullet vehicle are equally important in
determining the acceleration of the
struck vehicle.
Size and Speed of the Stuck Vehicle
Smaller vehicles give more acceleration to the occupant and therefore are
not as safe. In addition, static friction
is greater than motion friction. A moving vehicle will accelerate faster than a
stationary one.
Experts in Human Occupant Dynamics also help elucidate the
misconceptions regarding low speed
rear impact crashes (LOSRIC). Some
common misconceptions are:
Injuries can be assessed by looking at
the damage to a vehicle
The repair to a damaged vehicle is
likely subjective depending on the adequacy of the examination to the
vehicle. It is important that the vehicle be thoroughly examined. It is
often difficult to estimate damage
without removing the bumper cover
and getting underneath to look for
signs of structural damage, which can
sometimes be subtle.
Bumpers are designed to protect occupants
Bumpers are not designed to protect occupants, but are designed to
decrease override and under ride in
high speed crashes and to minimize the
cost of the repair to the vehicle following a low speed crash.
Photographs of a crash can indicate occupant injury
Photographs cannot reveal many of
the factors needed to evaluate occupant
injury, such as speed, acceleration,
force, tissue tolerance, occupant position at the time of impact, previous
medical conditions, etc. The only way
to determine if an occupant is injured
is to perform a physical examination.
The distance a vehicle travels after a
crash correlates to occupant injury
Target vehicle rollout is a poor indicator of impact velocity and does not
correlate to occupant injury.
Pain is subjective
Pain is clearly objective when accompanied by an abrupt withdrawal
from the stimulus or a painful facial
expression.
The practice of estimating injury based
on property damage must be abandoned
and laid to rest. There is absolutely no
correlation between the two. In no other
area of medicine are opinions polarized
to the point where one party claims injury and the other categorically denies the
possibility. In evaluating an injury caused
by a low speed rear impact crash we must
consider all of the contributing facts and
avoid common misconceptions.
16
Trial Reporter
Fall 2003
Fall 2003
Trial Reporter
17
Crash Data Record Systems:
What They Can Do For You
by R. Scott Wills and Dennis F. O’Brien
R. Scott Wills is an accident reconstruction expert and partner in the firm of Cover & Wills, LLC in
Cockeysville, MD. His expertise is in the areas of Highway Accident reconstruction specializing in collision
dynamics, vehicle speed calculations, direction of principal force and occupant positioning. From 19791999 he was with the Baltimore City Police Department where he served as Instructor and Lead Accident
Reconstructionist. He has been involved in over 1200 collisions as primary reconstructionist and over 3600
cases in a secondary capacity. He is certified and fully accredited as a Traffic Accident Reconstructionist. He
is a frequent lecturer and has served as instructor for many seminars for bar associations, insurance companies and law enforcement entities. He has testified in many jurisdictions in the state of Maryland as an
expert witness during trials and at depositions.
Dennis F. O’Brien (Foard, Gisriel & O’Brien, Towson) received his J.D. from the University of Baltimore
School of Law. He is a member of MTLA’s President’s Club as an Eagle and is the former Editor In-Chief of
Trial Reporter. He also serves as a member of the Legislative Committee and is chair of the Public Realtions
Committee. Mr. O’Brien is a member of the Baltimore County and Maryland State Bar Associations and
ATLA. His practice concentrates in serious personal injury, products liability, medical malpractice and appellate work.
An accident occurs on a Western
Maryland highway. Three young women
in a car are involved in a relatively minor
collision with another vehicle. The car,
driven by a teenage girl, is pushed against
the jersey wall and comes to rest disabled.
As the driver of the car calls for help on
her cell phone she is stuck in the fast lane
of I-68, and several vehicles go around her.
Unfortunately, a large pickup truck does
not. It strikes the vehicle on the driver’s
side door and kills the driver while she is
speaking with her mother on the cell
phone. The vehicles traveled several hundred feet together after impact. Another
vehicle strikes the pickup truck in the rear,
after the first vehicles had come to rest.
The pickup truck driver tells police he
was operating below the speed limit and
braked for a substantial time prior to im-
R. Scott Wills
Dennis F. O’Brien
pact. While much of the evidence at the
scene is preserved, the accident, particularly the speed at which the pickup truck
driver was operating at the moment he
could have perceived the danger, will be
difficult, if not impossible to determine
using conventional methods. Crush
analysis, conservation of momentum, and
skid mark length are the usual methods
used.
For the attorney and accident
reconstructionist, the Crash Data Recorder (CDR) system provides a reliable,
and in this case, telltale method for determining critical information about the
pre-impact speed and braking of the
truck. Crash data recorders or retrieval
systems, also known as “black boxes,” are
part of the air bag sensor systems that
determine when an airbag will deploy.
What Are CDRs and What Do They Do.
In the event of an accident, the Crash
Data Recorder (CDR) is a component of
the system that determines if the vehicle’s
airbag will deploy or not. To be of use,
the airbag must deploy in time to protect
the vehicle’s occupants. A variety of sensors collect vehicle data and transmit it to
an “Electronic Control Monitor” or ECM
(the black box), which evaluates the data
and when threshold values are reached,
the airbag deployment sequence is initiated. Typical vehicle functions/data that
are monitored and sent to the ECM include: vehicle speed, engine speed,
throttle position, brake status, seat belt
status and Delta-V.
History of the System.
Automotive airbags were first introduced commercially in the early 1970’s
18
Trial Reporter
Fall 2003
by General Motors. In 1976, General
Motors introduced a diagnostic module
in a very limited number of vehicles. In
1990, General Motors added the Diagnostic and Energy Reserve Module
(DERM). This module recorded the following data: crash sensing activation
times, time from vehicle impact to deployment, fault codes present at the time of
deployment and ignition key cycles at the
time of deployment.
In 1994, General Motors introduced
the Sensing and Diagnostic Module
(SDM) to that year’s production vehicles.
This version of the module recorded all
of the previous data plus, status of driver’s
seat belt switch, maximum Delta-V for a
near deployment event, Delta-V vs. time
for a deployment event, and time between
near deployment and deployment events,
if within five seconds.
In 1999, the General Motors module
began recording the following data: passenger airbag enabled/disabled status,
engine speed in one second increments
for five seconds prior to impact, vehicle
speed in one second increments for five
seconds prior to impact, brake status (on/
off ) in one second increments for five seconds prior to impact and throttle position
in one second increments for five seconds
Fall 2003
prior to impact. For most passenger vehicles manufactured since 1999 and
which are equipped with a CDR, the
above is available.
Data Retrieval Methods.
The “black boxes” are typically found
in one of three locations: under the center console, under the front passenger seat
or in the dashboard under the radio or
climate controls. There are two ways to
access the information: through the vehicle diagnostic link connection (DLC)
or directly from the module. The DLC
requires an intact electrical system and the
ability to turn the ignition switch. The
airbag module can be directly accessed
through the data collector port on its side
or by removing it from the vehicle (which
can be destructive to the vehicle). Proprietary software is required to download
and interpret the data.
What Data Can be Recovered.
• Vehicle Speed – In five one-second
intervals preceding impact.
• Engine Speed – In five one-second
• Throttle Position - In five one-second intervals preceding impact.
• Brake Status - In five one-second
Trial Reporter
• Time from vehicle impact to time
of maximum Delta-V.
• Time from vehicle impact to airbag
deployment.
• Airbag warning lamp status (on/
off ).
• Maximum Delta-V for near deployment.
• Driver’s seatbelt status (on/off ).
• Passenger’s airbag enabled or disabled status (on/off ).
• Delta-V vs. time for frontal airbag
deployment event.
Use of the Data.
The information available does not replace real world investigation and
analytical procedures. It can, however,
supplement the information and conclusions reached by qualified reconstructionists. The importance of getting
to the vehicle in a timely fashion goes
without saying. If the airbag did not deploy in an accident, the data will not be
recorded. If the vehicle is destroyed, or
repaired, the data will be lost. To prevent
loss of the data, it is incumbent upon the
practitioner to take the necessary steps to
19
Crash Data Record Systems
CDR Software Vehicle Coverage
secure the vehicle and module after an
accident. This may not always be easy
when the potential defendant owns the
car. A motion to preserve evidence, preservation letters to defendant(s), adjusters,
police agencies, suit filing, etc. may be
necessary to preserve the vehicle data.
Once preserved, access by a qualified
accident reconstructionist, with the software and experience to use it, is required.
Without adjustment for extensive time
and travel, $2,500 - $5,000 is the ballpark
cost for obtaining the data and having it
interpreted along with the other necessary
elements of the case. Time is of the essence and failure to act could expose the
practitioner to criticism.
An Illustration of What the CDR Can Do.
The facts outlined above, with the exception of some missing details, are from
an actual collision. The pickup truck operator claimed that he was within the
speed limit. Information obtained from
the CDR revealed that the vehicle’s prebraking speed was 67 mph (in a 55 mph
zone), and that braking occurred just two
seconds prior to impact. Impact speed
was 63 mph. That, standing alone, is
helpful, but not dispositive. However, in
conjunction with an analysis by an accident reconstructionist, it was determined
that the disabled vehicle was visible 333
feet from the point of impact. Thus, if
moving at the speed limit of 55 mph, and
utilizing the usual formula for perception/
braking and the coefficient of friction
between the highway surface and the tires,
the State Police concluded that the driver
of the truck could have stopped his vehicle 38 feet prior to impact with prompt
braking at the time of perception. However, without knowing the sight distance
that is based on other evidence gathered
in the usual course of the investigation,
the CDR data would not have been as
useful.
Conclusion
CDR’s, as they become more commonplace, can provide a valuable tool in
accident reconstruction and analysis.
Caution is the watchword; however, as
they are not the “all knowing oracle” and
the data must be obtained promptly and
used in conjunction with a proper investigation and accident reconstructionist.
Some useful links are appended to this
article, for additional information on accident reconstruction and CDR’s.
General Motors
Buick, Cadillac, Chevrolet and Pontiac
Buick, Cadillac, Chevrolet, Oldsmobile, Pontiac and Saturn
Buick, Cadillac, Chevrolet, Geo, GMC, Oldsmobile, Pontiac and Saturn
Buick, Cadillac, Chevrolet, Geo, GM EV1, GMC, Oldsmobile, Pontiac and
Saturn
Buick, Cadillac, Chevrolet, Oldsmobile, Geo, GMC, GM EV1, Pontiac and
Saturn (More models/More data)
Buick, Cadillac, Chevrolet, Oldsmobile, Geo, GMC, GM EV1, Pontiac and
Saturn (More models/More data)
Buick, Cadillac, Chevrolet, Oldsmobile, Geo, GMC, GM EV1, Isuzu, Pontiac
and Saturn (More models/More data)
Buick, Cadillac, Chevrolet, Oldsmobile, Geo, GMC, GM EV1, Hummer,
Isuzu, Pontiac and Saturn (More models/More data)
Ford Motor Company
Crown Victoria, Taurus, Windstar, Lincoln Town Car, Mercury Grand Marquis and Mercury Sable
Crown Victoria, Windstar, Lincoln Town Car and Mercury Grand Marquis
Crown Victoria, Windstar, Lincoln Town Car and Mercury Grand Marquis
Links for Further Information
Vetronix Corporation
National Highway Transportation
Safety Administration
Insurance Institute for Highway Safety
Accident Reconstruction Network
Collision Safety Institute (CSI)
Accreditation Commission for
Accident Reconstruction
Cover & Wills, LLC
Dennis F. O’Brien, P.A.
The Debate Over Event Data
Recorders
www.itsa.org
20
Trial Reporter
Manufacturer of data collection software equipment.
www.vetronix.com/diagnostics/cdr/
index.html
Federal transportation department
articles concerning data.
collectors.
w w w. n h t s a . d o t . g ov / e d r - s i t e /
media.html
Testing group funded by the insurance industry.
www.hwysafety.org
Accident Reconstruction website
with numerous articles about data
recorders.
www.accidentreconstruction.com/research/edr/index.asp
Private company that is the leader in
CDR testing and education.
www.collisionsafety.net
Accreditation commission for accident reconstructionists.
www.actar.org
Cover & Wills website.
www.coverwills.com
Dennis F. O’Brien website.
www.obielaw.com
Discussions of data collectors by a
non-profit society that
assists in the development of “Intelligent Transportation Systems”.
(Enter “data recorder” under search)
Fall 2003
:HOFRPH
1HZ 0HPEHUV RI 07/$
V 3UHVLGHQW
V &OXE
August 27, 2003 thru November 21, 2003
6JG $QCTF QH )QXGTPQTU GZVGPFU C YCTO YGNEQOG VQ VJG PGYGUV OGODGTU QH /6.#IU 2TGUKFGPVIU %NWD
'#).'5
Kenneth M. Berman
Philip H. Dorsey, III
Peter L. Scheer
Berman, Sobin & Gross
Gaithersburg, MD
The Dorsey Law Firm
Leonardtown, MD
Futrovsky, Nitkin & Scheer
Rockville, MD
P. Paul Cocoros
Lee Saltzberg
Law Office of P. Paul Cocoros
Baltimore, MD
Law Office of Lee Saltzberg
Towson, MD
(170&'45
Gerald C. Baker
Evan K. Thanlenberg
Baker & Associates, LLC
Lanham, MD
Law Office of Evan K. Thalenberg
Baltimore, MD
Steven H. Heisler
David J. Wildberger
Law Offices of Steven H. Heisler
Baltimore, MD
Iliff & Meredith
Pasadena, MD
%1064+$76145
Elliott Andalman
Robert V. Clark, Jr.
Alan D. Levenstein
Bruce M. Robinson
Andalman & Flynn
Silver Springs, MD
Clark, Steinhorn & Zanelotti
Beltsville, MD
Houlon, Berman, Bergman,
Cerullo, Finci & Levenstein
Law Office of Bruce M. Robinson
Pikesville, MD
Gerald C. Baker
William Gann
Baker & Associates
Lanham, MD
Cagan & Gann
Baltimore, MD
Christopher P. Brown
Andrew E. Greenwald
Brown, Getka & O'Connor
Glen Burnie, MD
Joseph, Greenwald & Laake
New Carrollton, MD
Laurence A. Marder
Salsbury, Clements, Bekman, Marder
& Adkins
Greenbelt, MD
Baltimore, MD
Michael Pulver
The Yost Legal Group
Jerome J. Seidenman
Jerome J. Seidenman
Baltimore, MD
Roger Weinberg
Law Office of Roger S. Weinberg
Towson, MD
Baltimore, MD
5722146'45
Richard M. Bader
Lon Engel
Frederick Raab
Bader & Cooper
Baltimore, MD
Engel & Engel
Baltimore, MD
Mignini, Raab & Lidinsky
Baltimore, MD
Michael H. Bereston
James B. Hopewell
Joel Shugarman
Michael H. Bereston
Annapolis, MD
Gaegeer & Hopewell
Riverdale, MD
Shugarman & Mehring
Baltimore, MD
Dwayne A. Brown
Joseph Barry Hughes
David M. Simpson
Law Office of Dwayne A. Brown
Hollman, Hughes, Maguire,
Timchula & Titus
Westminster, MD
David M. Simpson
Greenbelt, MD
Baltimore, MD
Francis J. Collins
Kahn, Smith & Collins
Gregory Lockwood
Baltimore, MD
Pope & Hughes
Towson, MD
Andrew C. Cooper
Steven M. Vogelhut
Vogelhut & Vogelhut
Baltimore, MD
Bader & Cooper
Baltimore, MD
Fall 2003
Trial Reporter
21
From the Listserve
Edited by Louise A. Lock
Louise A. Lock (Louise A. Lock, P.A.) received her J.D. from the University of Baltimore School of Law and an L.L.M. in Health Law
from the Widener University School of Law. She serves on the MTLA’s Board of Governors and is a member of the President’s Club as a
Founder. Ms. Lock is also Editor-in-Chief of the Trial Reporter. Her practice concentrates in the areas of medical malpractice, drug
products liability and personal injury.
Subject: Admissibility of
Criminal Act in Civil Case
From: Steve Burgoon:
ssburgoon@gblaw.us:
I should know this, but. . . we have an
issue in a civil case in federal court, and
our client has committed an unrelated
crime (shoplifting). Her credibility will be
at issue in the civil case. Would that crime
come in to impeach her, or is it only
“crimens falsi” like passing a bad (check?
Thanks for any insight.
From: Steven Campen:
steve_campen@yahoo.com:
Steve - I think the latter. My recollection is that the crime must be one of
“moral turpitude” to be admissible, i. e.,
a crime that involves, at its core, dishonesty such as fraud. I believe you and I
researched the matter for Swecker, so if
you give me a call on Monday, I will try
to dig out the motion in limine we filed
on the issue.
From: Charles Matz:
matz@comcast.net:
The issue would not be whether shoplifting is a crime of “moral turpitude.”
“Moral turpitude” was a standard that was
used in some common law evidence cases
on the issue of whether a prior criminal
conviction was admissible for impeachment purposes. See McGee v. State, 332
S.W.2d 507 (Tenn. 1960); State v. Jenness,
ECONOMIC ANALYSIS
Lost Income Determination for:
Contract Disputes
Bankruptcies
Personal Injuries
Wrongful Death
Valuation of Businesses, Securities and
Pension Funds for Divorce and Business Cases.
University Professor with Extensive Experience
DR. RICHARD B. EDELMAN
8515 Whittier Boulevard
Bethesda, Maryland 20817
301-469-9575 1-800-257-8626
References and Vita on Your Request
a
Visit at
HTTP:/ /WWW.ECONOMIC-ANALYSIS.COM
b
62 A.2d 867 (Me. 1948). In a federal
court case, the issue of whether the prior
shoplifting conviction is admissible for
impeachment purposes is governed by
Federal Rule of Evidence 609. And the
issue is more complicated than whether
the rule only applies to “crimen falsi.”
Rule 609(a) provides:
For the purpose of attacking the credibility of a witness, (1) evidence that a
witness other than an accused has been
convicted of a crime shall be admitted, subject to Rule 403, if the crime
was punishable by death or imprisonment in excess of one year under the
law under which the witness was convicted, and evidence that an accused
has been convicted of such a crime
shall be admitted if the court determines that the probative value of
admitting this evidence outweighs its
prejudicial effect to the accused; and
(2) evidence that any witness has been
convicted of a crime shall be admitted
if it involved dishonesty or false statement, regardless of the punishment.
There are two prongs to the rule. Part
(a)(1) permits the admission, for impeachment purposes, of prior convictions for
crimes that were “punishable by death or
imprisonment in excess of one year under the law under which the witness was
convicted.” Part (a)(2) requires the admission for impeachment purposes of prior
convictions for crimes that “involved dishonesty or false statement.”
The difference between the two prongs
in civil cases is that, for convictions that
are admissible under Rule 609(a)(1), the
trial court has the authority to bar admission of those convictions under Rule 403.
But if the prior conviction is admissible
under Rule 609(a)(2) - that is, if it was
for a crime that involved “dishonesty or
false statement” - then the trial court is
required to admit the conviction for impeachment purposes. The court has no
authority - not even under Rule 403 - to
exclude a prior conviction that involved
“dishonesty or false statement.” See United
States v. Wong, 703 F.2d 65 (3rd Cir.
22
Trial Reporter
Fall 2003
Fall 2003
Trial Reporter
23
From the Listserve
1983). As stated in the Conference Report for the rule (when Congress enacted
the Federal Rules of Evidence): “The admission of prior convictions involving
dishonesty and false statement is not
within the discretion of the Court. Such
convictions are peculiarly probative of
credibility and, under this rule, are always
to be admitted.” Rule 609(a)(1).
You stated that your client’s prior conviction was for “shoplifting.” There is one
preliminary question. When did this conviction occur? Maryland has not had a
separate “shoplifting” statute since 1979.
See former Art. 27, section 551A. In 1978,
the statute was repealed, effective July 1,
1979, See 1978 Md. Laws ch. 849, sec. 4,
and shoplifting is now handled under
Maryland’s theft statute. See Section 7-104
of the Criminal Law Article. (If your
client’s conviction was more than 10 years
old, then see Rule 609(b) for the procedure that must be followed.
In any event, under Rule 609(a)(1), the
issue is whether shoplifting was punishable by imprisonment of more than one
year. In Maryland, it is. (I am assuming
that your client’s shoplifting conviction
was in Maryland.) Under Section 7104(g) of the Criminal Law Article, theft
of property or services worth $500 or
more is punishable by imprisonment of
up to 15 years and a fine of up to $25,000,
and restitution. Theft of property or services worth less than $500 is punishable
by imprisonment of up to 18 months and
a fine of up to $500, and restitution.
Heightened penalties for “petty theft” are
authorized if the defendant was a repeat
offender.
Thus, a Maryland conviction for theft
is punishable by imprisonment of more
than one year. Accordingly, it can be used
to impeach your client’s testimony, unless the trial court excludes the conviction
(as it has the authority to do) under Rule
403. Rule 609(a)(2) (The next issue is
whether a conviction for shoplifting or
theft involves “dishonesty or false statement,” and thus is automatically
admissible under Rule 609(a)(2). If your
case is pending in the United States District Court for the District of Maryland,
See United States v. Carroll, 663 F. Supp.
210 (D. Md. 1986).
At first blush, it seems obvious that
theft involves “dishonesty.” As stated by
future Chief Justice Warren Burger, “In
common human experience acts of deceit,
fraud, cheating, or stealing, for example,
are universally regarded as conduct which
reflects adversely on a man’s honesty and
integrity.” Gordon v. United States, 127
U.S. App. D.C. 343, 347, 383 F.2d 936
(1967). (However, the federal courts have
shied away from that “first blush” view of
theft, and have held that larceny and similar crimes are not crimes of “dishonesty,”
at least when they don’t involve affirmative lies. The federal courts tend to regard
these crimes as crimes of “stealth,” and
not dishonesty.
The leading cases are a trio of cases
from the D.C. Circuit. In United States v.
Smith, 551 F.2d 348, 362 (D.C. Cir.
1976), the court said that “dishonesty or
false statement” in Rule 609(a)(2) was
intended by Congress “to denote a fairly
narrow subset of criminal activity.” The
court held that attempted robbery did not
fall within that subset. In United States v.
Dorsey, 591 F.2d 922 (D.C. Cir. 1978),
the court held that a Maryland “shoplifting” conviction (under former Article 27,
section 551A) was not admissible under
Rule 609(a)(2). Shortly thereafter, in
United States v. Fearwell, 595 F.2d 771
(D.C. Cir. 1978), the court held that
“petty larceny” did not qualify as a crime
involving “dishonesty or false statement.”
For other federal cases in this regard, See
United States v. Dunson, 142 F.3d 1213
(10th Cir. 1998) (prior robbery conviction
not admissible under Rule 609(a)(2));
WALLS REPORTING, INC.
410-647-6434
24
Trial Reporter
Fall 2003
Fall 2003
Trial Reporter
25
From the Listserve
United States v. Alexander, 48 F.3d 1477
(9th Cir. 1995) (prior robbery convictions
not admissible under Rule (609(a)(2));
United States v. Sellers, 906 F.2d 597, 603
(11th Cir. 1990) (“It is established in this
Circuit . . . that crimes such as theft, robbery, or shoplifting do not involve
`dishonesty or false statement’ within the
meaning of Rule 609(a)(2).”) Many federal cases look to the Conference Report’s
discussion of Rule 609(a)(2), which
stated: “By the phrase `dishonesty and
[sic] false statement” the Conference
means crimes such as perjury or suborna-
tion of perjury, false statement, criminal
fraud, embezzlement, or false pretense, or
any other offense in the nature of crimen
falsi, the commission of which involves
some element of deceit, untruthfulness,
or falsification bearing on the accused’s
propensity to testify truthfully.” Thus,
these federal cases limit the reach of Rule
609(a)(2) to “crimen falsi” (the crime of
falsifying). State courts, when construing
their own versions of Rule 609(a)(2), have
reached differing results on the issue of
whether crimes like “larceny” are crimes
that involve “dishonesty.” In State v. Shaw,
492 S.E.2d 402 (S.C. Ct. App. 1997), the
court held that “shoplifting” does involve
dishonesty. In People v. Parcha, 575
:HOFRPH1HZRU5HLQVWDWHG
07/$0HPEHUV
-XQH1RYHPEHU
-RKQ $GDPV
$ELJDLO 5 +RSSHU
'DYLG $JDWVWHLQ
-HII +RURZLW]
:DUUHQ 6 $OSHUVWHLQ
-DPHV & +XEEDUG
$P\ $XVWLQ
.DUHQ +XOPH
*HRUJH ' %DUQKDUW
(OHDQRU $ +XQW
.HYLQ / %HDUG
+XJKLH ' +XQW
0LFKDHO %HOVN\
'DYLG % -DFNVRQ
%LEL 0 %HUU\
/\OH ) -RQHV
-HURPH $ %LYHQV
.HYLQ .DQH
-DVRQ %ODYDWW
-DPHV (GZDUG .HDWWV
6WDQOH\ + %ORFN
-XVWLQ .DW]
%UDGOH\ %ORPPHU
-HUU\ 7 /DPEGLQ
.ULVW\ ' %RRQ
7KRPDV - 0DORQH\
&KULVWRSKHU 0 %UDQQLJDQ
&KHU\O $ 0F&DOO\
-RKQ % %UDWW
&KULVWRSKHU -RKQ 0F*UDG\
&KULVWLQH 6 %ULWWRQ
0LFKDHO 0LOQH
/HH + &DSODQ
-HVVRQD 0RUULVRQ
0DUQHOO $ &RRSHU
5LFKDUG 2DUH
-RKQ - &RUG
$UFKLH / 3DOPRUH
$OH[ &RUGLHU
%ULDQ . 3HDUOVWHLQ
0DULDQQH &RUGLHU
(ULF 3HOOHWLHU
$OLVD * &XPPLQV
3DXOD $ 3ULFH
.DULQ 'DOLFKRZ
'RQ ( 5LFKDUGVRQ
.DUHQ 3 'DYLG$UJXV
0DUWLQ 6FKUHLEHU
7RQL$QQ 'L0DJJLH
7RGG / 6FKXOHU
6WHSKHQ $ 'UD]LQ
0DOLN $ 6KDNXU
0LFKDHO (O\
6RQ\D $ 6PLWK9DOHQWLQH
-RHO - )DGHU
$QGUHZ 7HLWHOPDQ
6XVDQ $ )DOHV 6PLWK
$WKDQ 7VLPSHGHV
:LOOLDP ' )DQQLQJ -U
'HQLVH 7XUQHU
%DUEDUD - *RULQVRQ
+HQU\ / 9LQ\DUG
7RPHND 0 *ULPHV
0LFKDHO - :DVLFNR
0DUF * +DOO
0LFKDHO :HLQ
0DOFROP 3 +HUPDQ
9LQFHQW 0 :LOOV
7DPDUD / +RIIVWDWWHU
:LOOLDP / :RRGIRUG
/DZUHQFH 5 +RO]PDQ
*HUDOG $ =LPOLQ
N.W.2d 316 (Mich. Ct. App. 1997), leave
denied, 591 N.W.2d 40 (Mich. 1999), the
court held that “larceny” does not involve
dishonesty, and that “retail fraud” involves
dishonesty only if an affirmative misstatement was committed (such as changing
the price tag on merchandise).
For cases that held that theft-type
crimes do not involve “dishonesty,”See
State v. Bohe, 447 N.W.2d 277 (N.D.
1989); State v. Johnson, 784 P.2d 1135
(Utah 1989); and State v. Williams, 326
N.W.2d 678 (Neb. 1982).
For cases that held that theft-type
crimes do involve “dishonesty,” See State
v. Dawkins, 681 A.2d 989 (Conn. App.
Ct. 1996); People v. Elliot, 654 N.E.2d
636 (Ill. App. Ct. 1995); Reichmann v.
State, 581 So.2d 133 (Fla. 1991); State v.
Brown, 782 P.2d 1013, 1031 (Wash.
1989), opinion corrected on other
grounds, 787 P.2d 906 (Wash. 1990); and
State v.Grover, 518 A.2d 1039 (Me. 1986).
For a good discussion on the authorities on this issue, see the opinion of the
Court of Appeals of South Carolina in
State v. Al-Amin, which was decided on
March 3, 2003, and which is linked here:
http://ww.law.sc.edu/ctapp/3602.htm.
For other discussions of the issue, See
State v. Eugene, 340 N.W.2d 18, 31-33
(N.D. 1983), and State v. Anderson, 336
N.W.2d 123, 125-26 (N.D. 1983).
Finally, although Maryland’s rule on
prior convictions is different from Rule
609, our Court of Appeals has offered its
take on the issue. Maryland Rule 5-609(a)
permits admission of a prior conviction
for impeachment purposes if the crime
was “relevant to the witness’s credibility.”
In State v. Giddens, 335 Md. 205 (1994),
the Court held that the distribution of cocaine is “relevant to the witness’s
credibility,” explaining that illegal drug
dealers live lives of secrecy and concealment. In State v. Woodland, 337 Md. 519
(1995), the Court followed Giddens and
held that a conviction of possession with
intent to distribute illegal drugs was also
“relevant to the witness’s credibility.”
Giddens and Woodland remain somewhat
controversial. In a recent (dissenting opinion in Brown v. State, 373 Md. 234
(2003), Judge Wilner and two other
judges said that they should be overruled.
Subject:
Res Judicata/Collateral Estoppel?
From:Dennis O’Brien:
Obie26@aol.com:
Have a matter now that involves a
claim for breach of employment contract.
26
Trial Reporter
Fall 2003
Fall 2003
Trial Reporter
27
From the Listserve
It is a written agreement which voids several provisions for future compensation
if the employee is terminated for gross
misconduct. The guy gets fired and the
boss tells him it is for “gross misconduct”.
Unemployment is considering the issue
of gross misconduct. While I think there
is minimal risk at the moment that the
hearing officer will conclude gross misconduct, I can dismiss the appeal and
avoid the finding. My concern is whether
the finding at the administrative level
could be considered res judicata or collateral estoppel in the subsequent breach
of contract action. I have been unable to
find a case either way so thought it was
worth a query.
From: Rick Claxton:
rclaxton@garsonlaw.com:
Had this issue a few years ago in a case
in US District Court. My client was fired,
applied for unemployment, but didn’t
bother going to the appeal hearing because, frankly, he was a highly
compensated executive and felt it was embarrassing. The employer presented a
one-sided and substantially false version
of the facts and the examiner found my
client had been terminated (for cause. By
the time I got the wrongful termination
case, there was no possibility of appealing
the unemployment determination. The
defense sought to offer the DLLR ruling
to establish collateral estoppel and I filed
a motion in limine which I have attached.
Feel free to use what you want, but keep
in mind that the research needs to be up-
dated. (By the way, the motion was successful in my case and I ended up getting
a very good verdict.)
From: Bruce Bender:
Bmb@vawlaw.com:
Dennis, there is a specific case from
the 4th Circuit that states in no uncertain terms, decisions by unemployment
are not res judicata or collateral estoppel
for future litigation regarding an employment contract or litigation related to
discrimination. It was written by Judge J.
Harvey Wilkinson. I can’t remember the
case but it was from the early to mid
1980’s. If you can’t find it, I can locate it
for you.
Jogged my memory. I think the case is
Ross v. Comsat from the 4th Circuit.
MTLA’s
7ULDO/DZ\HU5HIHUUDO6HUYLFH
Another Valuable Member Benefit
exclusively available to members of
MARYLAND TRIAL LAWYERS ASSOCIATION
Join Now
MTLA’s Trial Lawyer Referral Service is approaching its first anniversary. MTLA receives at
more than 50 calls per week from around the state. Consumers typically request legal assistance for
personal injury matters, family law issues, consumer complaints, criminal law and workers comp.
MTLA screens all calls. Members can sign up to receive referrals in 5 subject matter areas of
your choosing. The “Trial Lawyer Referral Service” has placed Lawyer Referral advertising in Yellow
Books all around the state and the potential client is given a toll free number to call.
Regular and subscribing members may join the Trial Lawyer Referral Service (“TLRS”) at the
very reasonable cost of $150.00 per year. Members of the President’s Club are entitled to discounts. The
membership fee for Founders is $50 per year; for Contributors $100.00 per year and for Supporters the
TLRS fee is $125.00 per year. Eagle members of the President’s Club receive a free membership.
The Trial Lawyer Referral Service is the only truly statewide referral service sponsored, run and
operated by a bar association. All MTLA members are encouraged to join the Trial Lawyer Referral
Service and/or to refer conflict of interest and other matters they cannot handle to the TLRS. To receive
an application to join the Trial Lawyer Referral Service, e-mail the Association at
mtla@mdtriallawyers.com. You can also request an application form by Fax (410-783-5981) or register
on-line on the MTLA website: http://www.mdtriallawyers.com.
Enhance your practice by joining the TLRS!
28
Trial Reporter
Fall 2003
Fall 2003
Trial Reporter
29
Appellate Watch
by Walter E. Laake
Walter E. Laake, Jr. is a founding partner in the firm Joseph, Greenwald & Laake, P.A. of Greenbelt. He received his J. D. from the
Univ. of Maryland School of Law. Mr. Laake holds the office of President-Elect of MTLA, and is a Member of its Board of Governors
and a member of its President’s Club as an Eagle. Mr. Laake is a Past President of the Prince George’s County Bar and serves on its Trial
Courts Judicial Nominating Commission. He is also a member of the Attorney Grievance Commission’s Peer Review Panel, the TLPJ,
and is a Life Member of ATLA. His practice includes professional negligence, product liability, and general personal injury law.
The Appellate Watch Program and articles in the quarterly Trial Reporter have been a part of MTLA member services for several years.
Appellate Watch was instituted for several reasons: First, the Program alerts our Amicus Committee about any cases and issues of
importance to the MTLA. Second, members are advised of the issues pending before the Court of Special Appeals. Finally, due to the
gracious assistance of Court of Special Appeals Clerk, Leslie Gradet, MTLA is able to provide members with copies of appellate briefs
cited in these articles. To obtain a copy of a brief at nominal cost, contact MTLA’s Executive Director, Robert Lembo. Please use the
order form that appears at the end of Appellate Watch.
Counsel for Appellant
Area of Law
Judge
Jurisdiction
John M. Quinn,
(301) 762-1696
Employment Law/
Breach of Contract
Mason/Montgomery
County
Did the trial court err in granting summary judgment in
favor of Comsec Corporation who that claimed through a
series of stock sales and mergers to have legally extinguished
the stock options and stock awards that employees had previously been granted?
222-1362-02 Kymberly A. Klosowski
Joseph C. Ruddy, Jr.,
v Marcus Lionel Jones, et al. (301) 699-5666
Motor Vehicle Law/
Evidentiary Issues
Shepherd/Prince
George’s County
Did the trial court err in admitting into evidence an edited
“highlight” tape from six hours of surveillance ordered by
Albert Randall, Esq., and further err in allowing the surveillance detective to give his opinion based upon his six
hours of observation as to whether the Plaintiff appeared
to be “permanently disabled” in a case where the jury
awarded nothing for future damages or permanent disability?
223-1630-02 Henry Rehn v
Westfield America, et al.
Alan H. Legum,
(410) 263-3001
Negligence/Slip and Fall/
Summary Judgment
Caroom/Anne
Arundel County
Did the trial court err in granting Defendant’s Motion for
Summary Judgment by ruling that Chick-Fil-A in the Annapolis Mall had no duty to Plaintiff since it did not lease
the premises in front of its counter and that Annapolis Mall
had no liability to Plaintiff since the unrefuted evidence
was that the liquid which caused the Plaintiff to slip and
fall had been on the floor for less than four minutes prior
to his accident?
224-1658-02 Erie Insurance Exchange,
et al. v John Dixon, d/b/a
Dixon Electric, et al.
Edward J. Brown,
(301) 762-7770
Fire Loss/Negligence/
Civil Procedure
Caroom/Anne
Arundel County
In this fire loss claim for subrogation by the appellant, which
resulted in a verdict for the Defendant contractor, did the
trial court err as a matter of law in awarding separate defendants peremptory strikes, and allowing defendants to confer
regarding the exercise of those strikes; and in instructing
the jury on the “mere happening” of an accident; and in
refusing to strike for cause a juror who advised in voir dire
that she was a close personal friend of the defendant’s expert witness and that she worked at a forensic engineering
firm?
225-1772-02 Washington Metropolitan
Area Transit Authority
v Kenneth D. Hewitt
Cheryl C. Burke,
(202) 962-2557
Workers’ Compensation/
Attorney’s Fees/Penalty
for Late Payment
Lamasney/Prince
George’s County
Did the trial court err in awarding sanctions for late payment of attorneys’ fees where the employer established good
cause for the delay in payment and the claimant suffered
no prejudice by reason of the delay?
226-2019-02 Betty L. Manders v
Gloria Julius
Jonathan A. Kopin,
(410) 730-7730
Negligence/Slip and Fall/
Governmental Immunity/
Res Judicata
Spellbring/Prince
George’s County
Did the trial court err in granting the Defendant’s Motion
for Summary Judgment based on res judicata as to the Defendant an individual employee of the Town of Riverdale
Park which was previously sued but dismissed based on governmental immunity?
Case #
Case Name
221-902-02
Raymond D. Thomas, et al.
v Deneb Corporation, et al.
30
Trial Reporter
Issues
Fall 2003
Area of Law
Judge
Jurisdiction
227-2057-02 Roland Brown, et ux. v
Shawn Lamont Douglas,
et al.
Wendy L. Shiff,
(410) 439-6633
Motor Vehicle Accident/
Instructions
Martin/Prince
George’s County
Did the trial court err in giving the “unavoidable accident,”
“mere happening of an accident,” and “reciprocal duties”
instructions to the jury and by incorrectly instructing as to
the Maryland Boulevard Rule?
228-2358-02 Pennsylvania National
Mutual Casualty Insurance
Company v Jeffrey Frazier,
and Liberty Mutual
Insurance Company
Kevin Karpinski,
(410) 727-5000
UM/UIM Coverage/
Statute of Limitations
Caroom/Anne
Arundel County
Did the trial court err in ruling that the statute of limitations ran on the UIM carrier’s pursuit of subrogation when
its settlement of the UIM claim and subrogation lawsuit
both occurred after three years from the date of accident?
229-2370-02 Harris & Folick, Inc. v
Tyrone Jones, Infant
Thomas J. Cullen, Jr.,
(410) 783-4000
Lead Paint Poisoning/
Evidentiary Rulings
Holland/
Baltimore City
Following the Plaintiff’s verdict the Defendant appealed
claiming the trial court erred in allowing the question of
economic damages to be presented to the jury and in refusing to grant judgment for the Appellant because of Appellee’s
failure to prove the presence of lead-based paint within the
subject premises during the minor’s residency.
230-2495-02 CP Holdings, Inc. v
Colgate Investments, LLP
Sidney S. Friedman,
(410) 559-9000
Motion for Summary
Judgment/Adverse Ruling
Without Hearing
Marshall/Harford
County
Did the trial court err in granting Defendant’s Motion for
Summary Judgment without a hearing notwithstanding
Appellant’s Request for Hearing on the Motion?
231-2552-02 John Crane, Inc., et al. v
Frances Brockmeyer, et al.
Gerry H. Tostanoski,
(410) 752-9700
Product Liability/
Asbestos Various Issues
Rombro/Baltimore
City
Following a $2.7 million verdict against Owens-Illinois, Defendants appeal raising the following issues: 1) was
Owens-Illinois entitled to judgment on its cross-claims
against Hopeman and Uniroyal as a matter of law? 2) Did
the trial court err in ruling on when Plaintiff ’s
mesothelimona existed for purposes of applying the Maryland damages cap, ignoring the rule against marrying into
a loss of consortium claim, and ignoring the plain terms of
the release given by the Plaintiffs to Owens-Illinois? 3) Did
the trial court err in failing to apply a single cap to the
personal injury and loss of consortium damage awards?
Case #
Case Name
Issues
Fall 2003
Trial Reporter
31
Area of Law
Judge
Jurisdiction
Robert J. Lynott,
(410) 752-2468
Insurance Law/
Motor Vehicle Exclusions
Levitz/Baltimore
County
Did the trial court err in ruling for Progressive with respect
to this motor vehicle accident by a pizza delivery man upholding an exclusion in the Progressive policy denying
coverage for any accident that occurred while the driver
was delivering food for compensation or a fee?
Nichols/Prince
George’s County
Following a jury verdict of $210,000 against WSSC for
damages to a house caused by excavation work, judgment
was entered and an appeal taken. The Court of Special
Appeals remanded for reconsideration by the trial court as
to the issue of limitations and judgment was again entered
with post judgment interest to run from the original judgment date. The Defendant appeals not only the awarding
of post judgment interest but also the ruling by the trial
court that the local government tort claims act cap on damages did not apply to this judgment.
234-2571-02 Davine Snead, et al.
v John M. Woods, et al.
Joseph A. Miklasz,
Heller/Anne
(410) 768-3337
Arundel County
Medical Malpractice/
Jurisdiction/Venue/
Notice of Voluntary Dismissal
This claim for medical negligence against Johns Hopkins
and S. Lee Marban M.D., Peninsula Regional Medical
Center and John M. Woods, M.D. was brought by Salisbury
Plaintiffs in Baltimore City. Judge Byrnes transferred the
case to Anne Arundel County (where no Defendants lived
or worked). Plaintiff sought to simplify matters by merely
dismissing without prejudice Peninsula Regional and Dr.
Woods neither of whom had ever filed an answer to the
lawsuit. But Judge Heller refused to dismiss them and denied the Motion to Remand. Following Judge Heller’s
retirement, Judge Manck granted the Defendant’s Peninsula Regional and Woods’ Motion to Transfer (after they
had answered the lawsuit) and sent the case to Wicomico
County. The issues on appeal are whether the trial court
erred in failing to dismiss without prejudice the two Defendants who had not answered (Peninsula Regional and
John Woods); whether the trial court erred in failing to
remand the case back to the Circuit Court for Baltimore
City where Johns Hopkins and Dr. Marbann had answered
the lawsuit and accepted jurisdiction; and whether considerations of race should be given weight in the context of
fairness and justice on a forum non convenience transfer?
235-2574-02 Certainteed Corporation,
et al. v Cherry L. Anderson
Robert E. Rockwell,
(301) 739-4558
Workers’ Compensation/
Evidence/Instructions
Did the trial court err in giving the jury an instruction that
it was to take into consideration “the claimant’s age, education, and experience” in assessing permanency and did the
trial court err in excluding evidence of claimant’s application for unemployment benefits?
Case #
Case Name
232-2586-02 Michael J. Salamon v
Progressive Classic
Insurance Company
233-2548-02 WSSC v Bergon E. Sigmon, Russel L. Beers,
et ux.
(301) 206-7096
Post Judgment Interest/
Local Gov’t Tort Claims
McDowell/
Washington County
Issues
Rehabilitation Experts of Maryland, Inc. (REx)
(301) 962-6800
Vocational Expert and Life Care Planning Services
Steven D. Shedlin, M.Ed., CRC
Lianne Friedman, M.A., CRC
Over 45 years of combined case management and courtroom experience. Qualified
in circuit and federal district courts throughout Maryland, the DC metro area and the
mid-Atlantic region.
32
Trial Reporter
Fall 2003
Fall 2003
Trial Reporter
33
Area of Law
Judge
Jurisdiction
236-2705-02 Samsun Corporation t/a
Singer Exxon v
Jeffrey G. Bennett
Ami C. Dwyer,
(410) 752-8700
Slip and Fall/
Evidentiary Rulings
Baldwin/Harford
County
Did the trial court err in denying Defendant’s Motion in
Limine and allowing Plaintiff’s orthopedic witness to testify that the Plaintiff’s erectile dysfunction was causally
related to his lower back injury following which the jury
awarded $111,662.50?
237-2784-02 WSSC v
Mark E. Riley, et al.
Ben Bialek,
(301) 206-7096
Vacating an Enrolled
Settlement/Judgment
Smith/Prince
George’s County
Did the trial court err in reopening a case following an
order dismissing the case with prejudice subject to the “right
of a party to move for good cause shown within 30 days to
reopen this action, if settlement is not consummated,” Plaintiff, after 30 days, filed its motion to set aside the settlement
on the issue of whether his attorneys were authorized to
enter into it?
238-2810-02 Steven D. Bryant v
Thomas B. Ducker, M.D.
Steven D. Bryant, pro se,
(301) 855-4583
Medical Malpractice/
Appeal of Motion for
Summary Judgment
Silkworth/Anne
Arundel County
Did the trial court err in granting Summary Judgment notwithstanding expert testimony presented by the Plaintiff
with respect to the Defendant’s use of a new FDA-approved
medical procedure, i.e. a BAK fusion system for his spinal
fusion?
239-2820-02 Diane M. Johnson, et al.
v Baltimore County
Gilbert A. Hoffman,
(410) 252-5737
Local Gov’t Tort Claims/
Notice Provision
Cox/Baltimore
County
Did the appellant substantially comply with the 180-day
notice to county requirement and, was the county prejudiced by the delay?
240-2841-02 Samuel Smith v Town of
Morningside and
Officer Mark Marshall
Veronice A. Holt,
(202) 237-8870
Constitutional/
Common Law Torts
Shepherd/Prince
George’s County
Did the trial court err in directing a verdict on behalf of the
municipality with respect to the allegations brought against
it on the grounds that the Plaintiff had not shown the requisite degree of malice?
241-2886-02 Dushko S. Zdravkovich v
Shoppers Food Warehouse
Ralph W. Powers, Jr.,
(301) 627-5400
Slip and Fall/
Directed Verdict
Dawson/Prince
George’s County
Did the trial court err in ruling that the Defendant Shoppers Food Warehouse had no legal responsibility for the
dangerous condition directly adjacent to its store as maintenance of the parking area was the shopping center’s
responsibility under the lease?
242-0014-03 Reginald L. Robinson v
Prophecy Homeowners
Association, Inc., et al.
Michael C. Worsham,
(410) 557-6192
MD Debt Collection Act
and Attorneys’ Fees
Martin/Prince
George’s County
Did the trial court err in failing to award attorneys’ fees or
costs after a successful jury trial where damages were awarded
under the Maryland Consumer Debt Collection Act and
in not requiring the production of attorney time and billing records by Defendants’ counsel?
243-??-03
Lawrence Eiser,
(301) 587-7080
Motor Vehicle/Mistrial
Hotten, Prince
George’s County
Did the trial court err in not granting a mistrial requested
when Defense counsel Michael DeSantis erroneously alleged during cross-examination of the Plaintiff that she had
a prior felony theft conviction? The Motion for Mistrial
was again sought when the jury returned a Defendant’s verdict on this dump truck rear-end accident with $26,000 in
medical expenses and over $6,000 in loss of income with
permanent injury.
Case #
Case Name
Tawan Patrick v
Eric Gordon
Issues
Copies of any of the appellants’ briefs cited in this article are available to members for $20 each.
Please be sure to note the Case # as shown in the “Appellate Watch” table.
$
!
"#
$%$&'!!()"*+,+-))(,$.))*/%0)1-21342)
34
Trial Reporter
Fall 2003
Â 2UWKRSHGLF 6XUJHU\ Â 3DLQ 0DQDJHPHQW Â &KLURSUDFWLF
Â *HQHUDO 6XUJHU\ Â 3K\VLFDO 7KHUDS\ Â ,QWHUQDO 0HGLFLQH
Â (OHFWUR GLDJQRVWLF 7HVWLQJ Â )XQFWLRQDO 5HVWRUDWLRQ
Â $TXDWLF 7KHUDS\ Â :RUN +DUGHQLQJ
Â )XQFWLRQDO &DSDFLW\ (YDOXDWLRQV
Â ,QGHSHQGHQW 0HGLFDO (YDOXDWLRQV
Â )XOO 5DGLRORJ\ 6HUYLFHV 05, ;5D\
)RUHLJQ ODQJXDJH VXSSRUW · +RXUV RI RSHUDWLRQ PD\ YDU\ SHU ORFDWLRQ
· 0RQGD\²)ULGD\ $0 WR 30
$QQH$UXQGHO&R
$QQDSROLV 3DVDGHQD*OHQ %XUQLH )HVWLYDO DW 5LYD 5RDG
)RUHVW 'ULYH
1RUWK $UXQGHO 3K\VLFLDQV &HQWHU
+RVSLWDO 'ULYH 6XLWH 6HYHUQD 3DUN *OHQ %XUQLH 5LWFKLH +LJKZD\
:RUN +DUGHQLQJ$TXDWLF 7KHUDS\
3DUN 3OD]D
5LWFKLH +LJKZD\
5LWFKLH +LJKZD\
%DOWLPRUH&RXQW\
&DWRQVYLOOH (VVH[ 'XQGDON 5RVHGDOH 5DQGDOOVWRZQ 3DWWHUVRQ )RUW\ :HVW 6KRSSLQJ &WU
1 5ROOLQJ 5RDG
6DW KRXUV IRU QHZ SDWLHQWV RQO\
(DVWHUQ %RXOHYDUG
:KLWHVTXDUH 3URI %OGJ 6XLWH )UDQNOLQ 6TXDUH 'ULYH
+RODELUG $YHQXH
/LEHUW\ &RXUW 6KRSSLQJ &WU
/LEHUW\ 5RDG
:RRGKROPH 0HGLFDO &WU *UHHQ 7UHH 5RDG 6XLWH %DOWLPRUH&LW\
'RZQWRZQ 1 &KDUOHV 6WUHHW 6XLWH (GPRQGVRQ 7KH 9LOODJH 0HGLFDO &WU
(GPRQGVRQ $YH 6XLWH (UGPDQ (UGPDQ 6KRSSLQJ &HQWHU
(GLVRQ +LJKZD\
2YHUOHD3HUU\ +DOO %HODLU 5RDG
%HOYHGHUH 6TXDUH ( %HOYHGHUH $YH 6XLWH +DUIRUG&RXQW\
6DW KRXUV IRU QHZ SDWLHQWV RQO\
3DWWHUVRQ 9LOODJH 6KRSSLQJ &WU
3DWWHUVRQ $YHQXH
&DOO2XU$SSW/LQH
&DOO2XU$SSW/LQH
08/7,63(&,$/7<+($/7+&$5(
&HFLO&RXQW\
%R[ +LOO%HO $LU (ONWRQ (PPRUWRQ 5RDG
( +LJK 6WUHHW
(GJHZRRG 3XODVNL +LJKZD\
Fall 2003
Trial Reporter
35
Appellate Decisions
Edited by Mark E. Herman
Mark E. Herman, of the Law Office of William G. Koldner, PA of Baltimore. Mr. Herman is certified in trial advocacy by the National
Board of Trial Advocates. He is also a member of the Baltimore City Bar Association and is an arbiter/mediator on its Fee Arbitration
Committee.
COURT OF
SPECIAL APPEALS
WORKERS’ COMPENSATION - CAUSATION - COMPLEX MEDICAL QUESTION - EXPERT EVIDENCE REQUIRED
TO SUPPORT CAUSATION - EXPERT TESTIMONY MUST HAVE SUFFICIENT FACTUAL BASIS - EXPERT TESTIMONY MUST BE PRODUCT OF RELIABLE PRINICPLE AND METHODS - MOTION FOR JUDGMENT AND
MOTION FOR JUDGMENT NOT WITHSTANDING THE VERDICT.
Giant Foods, Inc. et. al. v. Booker, No. 1934, September Term 2002, filed September 3, 2003 Opinion by Sharer, J.
MTLA Wins Award From Maryland State Bar
for The MTLA Bicycle Helmet Program
We are very pleased to announce that the Maryland Trial Lawyers Association has been awarded the MSBA’s “best
service to the public project award” in the category of large specialty bar associations for our ongoing, and very
successful, bicycle helmet program sponsored by MTLA and MTLA’s affiliate entity— the Gary I. Strausberg Foundation, Inc. (GISFI). GISFI is headed by MTLA President-elect Walter Laake. The award was made in late
October during a meeting of the Local and Specialty Bar Association in Solomon’s Island hosted by the Maryland
State Bar Association.
The MTLA Bicycle Helmet Program has benefited from strong leadership provided by past Chairmen Niel Fick
and Larry Greenberg and last year’s Chair Roger Weinberg and then President Rob Jenner. We have also benefited
from our liaison with the Baltimore SAFE KIDS Coalition and its leader Karen Hardingham. We have been
successful in distributing thousands of helmets to youngsters and distributing important safety information tor
them. We look forward to more good work from the Bicycle Helmet program this year and into the future under our
new Chair Matt Paavola.
We wish to thank all who have been active in the bicycle helmet program and all who have donated their time and
money to help us purchase and distribute helmets in the past. The program will continue. Everyone should feel
proud and very satisfied that our effort to keep families safe through the bicycle helmet program has received formal,
statewide recognition from the Maryland State Bar. We thank MSBA for recognizing this important project.
Sincerely,
Mitch
J. Mitchell Lambros, President, MTLA
Lambros & Lambros
9900 N. York Road
Cockeysville, Maryland 21030
Andrew H. Kahn
Chair, MTLA Awards Committee
Kahn, Smith & Collins, P.A.
201 N. Charles St., 10th Floor
Baltimore, MD 21201
36
Trial Reporter
Fall 2003
Fall 2003
Trial Reporter
37
Recent Verdicts & Settlements
Edited by Mitchell A. Greenberg
Mitchell A. Greenberg, of the Greenberg Law Office in Baltimore, received his J.D. from the University of Baltimore School of Law. He
is a member of MTLA’s Board of Governors and serves as a member of MTLA’s Trial Reporter Committee. Mr. Greenberg is a member
of MTLA’s Membership Committee and serves as MTLA’s delegate to the Task Force for the Rehabilitation of Injured Workers. He is a
member of the Maryland State, Baltimore City, and American Bar Associations and also a member of ATLA. His practice concentrates in
workers’ compensation, criminal defense, and serious personal injury.
Arthur Serpick, M.D., internal medicine
& oncology, Balto. MD
Case Caption: EDITH PETR, Personal
Rep. & Surviving
diagnosed “dehydration”; treatment plan
“drink fluids”. In fact, Plaintiff had pneumonia. Next day, emergently went to ER
@ Good Samaritan Hospital where he
promptly expired.
Wife of Thomas Petr v Carl Sperling
Allegations of Liability:
Adjustor:
Court: Circuit Court for Balto. City
Injuries/Damages: Death
Insurance Company:
Docket #: #24C02-1833
EXPERT WITNESSES:
Special Remarks:
Facts:
Decedent had presented with 3-day history of diarrhea, nausea, shaking &
exhaustion. Defendant had his medical
resident do the entire physical exam and
Plaintiff ’s Expert
Dana Frank, M.D., internal medicine,
Balto., MD
Plaintiff ’s Counsel: Roger J. Bennett
MTLA Member) and Timothy Capurso
Medical Negligence
Defense Expert
Verdict/Settlement:
$150,000.00
settled
for
Defense Counsel: Amy Heinrich
______
Case Caption: AUTUMN CLARKSON,
MINOR, by her parents v. Bethesda Naval Hospital
Court: not filed
Docket #: n/a
9LVLWWKH07/$:HE6LWH
$QRWKHU 9DOXDEOH 07/$ 0HPEHU %HQHILW
)RUWKH/DWHVW07/$1HZV
9LVLWWKH07/$:HE6LWH
(GXFDWLRQ 3URJUDP &DOHQGDU 5HJLVWHU IRU (YHQWV
6HFWLRQ DQG &RPPLWWHH 1HZV
0HPEHUVKLS ,QIRUPDWLRQ 3URGXFWV DQG 6HUYLFHV
0HPEHUV 3DJH
'HSRVLWLRQV /LVW /HJDO 6HDUFK
7ULDO 5HSRUWHU DQG RQ OLQH 'RFXPHQW %DQN
ZZZPGWULDOODZ\HUVFRP
Member’s Can Contact MTLA to obtain their Member ID number
to gain access to the Member’s Page of the Web Site
Facts:
Angela Clarkson presented to Bethesda
Naval Hospital on 3/26/98 after spontaneous rupture of membranes; during a
prolonged second stage of labor, the fetal
heart monitor strip became worrisome
with a bradycardial episode at 9:37 P.M.
This was followed by variable & late decelerations with decreased short & long
term variability. Notwithstanding this,
Defendant allowed labor to continue until forceps delivery at 12:49 A.M. Plaintiff
born severely depressed and now has profound mental retardation, cerebral palsy
& static encephalopathy
Injuries/Damages:
EXPERT WITNESSES:
Sue Antell, Pediatric Neuropsychologist
38
Trial Reporter
Fall 2003
Fall 2003
Trial Reporter
39
Recent Verdicts and Settlements
Thomas Borzilleri, Economist
Defense Expert
Verdict/Settlement: settled $3,000,000.00
Docket #: n/a
Facts:
Decedent presented to Defendant hospital with onset of chest pain with exertion;
Defendant failed to do proper cardiac
work up, failed to get prior EKG for comparison & discharged patient; patient died
of a heart attack sitting in his car in a parking lot.
Plaintiff ’s Counsel: Roger J. Bennett, Esquire MTLA Member), Bennett &
Albright, P.A.
Defense Counsel: Lt. Col. Charles
Walters
______
Submitted-by: Name:
Kathleen Howard Meredith
Adjustor:
EXPERT WITNESSES:
Case Title:
Marion Melnick, Individually and as
Mother and Friend of Minor Children v.
MidAtlantic Cardiolvascular Associates,
P.A.
Jeffrey Quartner, M.D./cardiologist
Law Firm/Organization: Iliff & Meredith,
P.C.
Defense Expert
Work Phone: 410-685-1166
Verdict/Settlement: settled $200,000.00
Date-of-Verdict: 10/16/03
Adjustor:
Case Caption:
In the Circuit Court For Baltimore City
Insurance Company:
Injuries/Damages:
Special Remarks:
Plaintiff ’s Counsel:
Roger J. Bennett MTLA Member); David
F. Albright, Jr.*; Bennett & Albright, P.A.;
& Saiontz, Kirk & Miles, P.A.
Defense Counsel: Lt. Comm. Amanda St.
Claire
______
Case Caption:
ETHEL STEADY, Pers. Rep. & surviving wife v Kimbrough Army Hospital
Insurance Company:
Special Remarks:
Court Docket No: Case No. 24-C-02001206
Court: not filed
Adjuster:
Judith Provencher
Ins. Company:
Princeton Insurance Company
Plaintiff Counsel:
Kathleen Howard Meredith* and David
J. Wildberger*
Defense Counsel:
Kristen Kremer and Pamela Diedrich
Date:
Monday October 20, 2003
FACTS:
Michael Melnick, age 40 and previously
healthy, began to experience heart palpitations on January 14, 2000. The
following day he saw his primary care
physician who performed an EKG. This
test showed ST elevations suggestive of
infarction and a ventricular tachycardia.
Mr. Melnick was referred to St. Agnes
Hospital for evaluation by a cardiologist.
Dr. Martin Albornoz, a partner in
MidAtlantic, was the first cardiologist
with whom Mr. Melnick came in contact.
Mr. Melnick’s heart rate was so rapid in
excess of 300 beats per minute) and so
difficult to control despite the use of po-
Thomas C. Cardaro
PH: 410-752-6166
FX: 410-752-6013
40
Trial Reporter
Fall 2003
Fall 2003
Trial Reporter
41
tent anti-arrhytmia medications and
defibrillation that Dr. Albornoz thought
he might die before he could be evaluated. Mr. Melnick was transferred
emergently to Sinai Hospital where a catheterization proved his coronary arteries to
be clean and his ejection fraction to be
less than half normal. At this point, care
of Mr. Melnick was transferred to two
other Mid Atlantic doctors, Dr. Steven
Pollock and Dr. David Schamp. An
echocardiogram done five days after ad-
mission proved that his ejection fraction
had declined another 10% and established
that the right side of the heart was dilated.
At this point, Mr. Melnick’s care was
transferred to two other Mid Atlantic
doctors, Dr. Quartner and Dr. Guarnieri.
The notes written by the doctors during
the two week hospitalization indicated
that they were puzzled by Mr. Melnick’s
unusual presentation and course. One of
the doctors wrote: “is there something we
could be missing that is making this arrhythmia so hard to manage?” Mr.
Melnick was discharged from Sinai on
January 28 with a diagnosis of “dilated
cardiomyopathy of unknown etiology” or
as plaintiffs contended “bad heart but we
don’t know why.” At discharge, he was
told to follow with yet another Mid Atlantic doctor, Dr. Hillsley and also with
Dr. Albornoz who he had seen only once
during the early part of his hospitalization. He was also told he would improve
with time if he took his standard heart
failure medications. He died.
Allegations:
Plaintiffs alleged that Mr. Melnick fell
7KH07/$/LVWVHUYH"
$ 9DOXDEOH 07/$ 0HPEHU %HQHILW
+RZFDQ\RXDVVRFLDWHZLWKRYHUSDUWQHUV
ZLWKQRDGGLWLRQDOQDPHVRQ\RXUOHWWHUKHDG"
%\-RLQLQJWKH07/$0HPEHU/LVWVHUYH
0DQ\ 07/$ PHPEHUV FDOO LW WKH EHVW PHPEHU EHQHILW 07/$ RIIHUV
$Q $FWXDO /LVWVHUYH 3RVWLQJ E\ PHPEHU -RQDWKDQ .RSLQ 0D\ 2QFH DJDLQ ZH KDYH GHPRQVWUDWHG WKH YDOXH RI WKH OLVWVHUYH 7KDQN
\RX WR WKRVH ZKR UHVSRQGHG VR TXLFNO\ WR P\ UHTXHVW IRU D PRWLRQ :H
KDYH ZKDW ZH QHHG *UDWHIXOO\ \RXUV -RQ
([SHUW $GYLFH 4XLFNO\ 5HFHLYHG 2QO\ $YDLODEOH 7KURXJK 07/$
$QQXDO &RVW D ORZ SHU \HDU
7R -RLQ RU )LQG RXW LI \RX 4XDOLI\ FRQWDFW XV DW
)D[ RU HPDLO PWOD#PGWULDOODZ\HUVFRP
42
Trial Reporter
Fall 2003
Fall 2003
Trial Reporter
43
between the cracks of the Mid Atlantic
organization. They alleged that Mr.
Melnick’s presentation was very unusual,
that his course was rapidly progressive,
that the Mid Atlantic doctors were puzzled
by his condition and yet did not make a
referral to a tertiary care facility where a
diagnosis could have and would have been
made and appropriate treatment provided.
Injuries Damages:
Death
44
Expert Witness Plaintiff:
Dr. John Schroeder — Stanford Medical
Center
Dr. Kenneth Baughman — Brigham and
Womens’ Medical Center
Dr. Louis Maccini — Johns Hopkins
University
Expert Witness Defense:
Dr. Arthur Feldman — Thomas Jefferson
Medical Center
Trial Reporter
Dr. Stephen Gottlieb — University of
Maryland Hospital
Case Outcome Verdict:
$1,271,947
Special Remarks:
This case was difficult in that Mr. Melnick
had a disease that was almost inevitably
fatal absent successful heart transplant.
Moreover, even with successful heart transplant, the evidence was clear that his life
expectancy would not be normal. The
insurance company made no offer prior
to or during trial.
Fall 2003
ARE YOU A MEMBER OF AN MTLA SECTION?
MTLA SECTIONS & CHAIRS
Family Law
Harry B. Siegel, Chair
Nursing Home
Roger S. Weinberg, Chair
Medical Negligence
Dov Apfel, Chair
Workers Compensation
Robert J. Zarbin, Chair
New Lawyers Section
Albert H. Lechner, Chair
Coming Soon
Product Liability
JOIN NOW
MTLA Sections play an important role in your practice. The interchange of practice tips and networking among
colleagues with similar practices occurs mostly within MTLA’s sections, whether during special section programs,
meetings of section members or on a listserve. To find out what is going on in your specialty area, joining an MTLA
section is the best way to stay up to date on current issues affecting your practice.
To join an MTLA section fill out the form below and return it to MTLA
FAMILY LAW
___ I would like to join the Family Law Section. Section Dues $20.
M E D IC A L N E G L IG E N C E
___ I would like to join MTLA’s Medical Negligence Section. Section Dues $100.
(Plaintiff Only, includes exclusive Listserve for section members and free section programs).
NEW LAW YERS
___ I would like to join MTLA’s New Lawyers Section. FREE
I am 35 years old or younger or have been in practice less than 7 years
NURSING HOME
___ I would like to join the Nursing Home Section. Plaintiff Only. Section Dues $20.
WORKERS’ COMPENSATION
___ I would like to join MTLA’s Workers’ Compensation Section. Section Dues $30.
COMING SOON: PRODUCT LIABILITY
___ I am interested in participating in a potential Product Liability Section. -- FREE in 2004
Name __________________________________________________
Firm ___________________________________________________
Address ________________________________________________
City/State/Zip ____________________________________________
Phone _______________________Fax _______________________
email __________________________________________________
PAYMENT METHOD
____ Check Enclosed
___ Credit Card: __ Visa
__ MasterCard
__ Discover
__ AmEx
C a rd # _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ E x p . D a te _ _ _ / _ _
S ig n a tu re _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
R e tu r n to : M T L A , 1 2 0 W . F a y e tte S t., S u ite 7 1 1 , B a ltim o r e , M D 2 1 2 0 1 F x : 4 1 0 -7 8 3 -5 9 8 1
Fall 2003
Trial Reporter
45
.12:<2850(0%(5%(1(),76
07/$(PDLO/LVWVHUYH
&RQQHFW DQG QHWZRUN ZLWK RWKHU 07/$ PHPEHUV WKURXJK RXU HPDLO OLVWVHUY $VN TXHVWLRQV DQG JHW DQVZHUV IURP
\RXU FROOHDJXHV DFURVV WKH VWDWH %URDGFDVW WR WKH HQWLUH OLVW RU HPDLO PHPEHUV SULYDWHO\ 6XEVFULELQJ PHPEHUV H[FOXGHG $QQXDO VXEVFULSWLRQ ZZZPGWULDOODZ\HUVFRP7KH07/$:HE6LWH
07/$
V ZHEVLWH LV DQ HDV\ ZD\ WR DFFHVV DGGLWLRQDO LQIRUPDWLRQ RQ PHPEHUVKLS EHQHILWV DQG VHUYLFHV ILQGLQJ
D ODZ\HU VHDUFKLQJ 07/$
V 'HSRVLWLRQ %DQN LQGH[ GRZQORDGLQJ VDPSOH PRWLRQV FRPSODLQWV DQG RWKHU OHJDO GRFXPHQWV SOXV PXFK PRUH
6HFWLRQ0HPEHUVKLS,Q.H\3UDFWLFH$UHDV
)DPLO\/DZ6HFWLRQ
6SRQVRUV VHPLQDUV QHWZRUNLQJ RSSRUWXQLWLHV DQG GRFXPHQW H[FKDQJH IRU )DPLO\ /DZ\HUV $QQXDO )HH 0HGLFDO1HJOLJHQFH6HFWLRQ
)RU SODLQWLII V ODZ\HUV RQO\ WKLV QHWZRUNLQJ VHFWLRQ VSRQVRUV PHGLFDO QHJOLJHQFH IRUXPV HYHQWV DQG VHPLQDUV
$OVR KDV DQ H[FOXVLYH VHFWLRQ OLVWVHUY $QQXDO )HH 1HZ/DZ\HUV6HFWLRQ
7KLV VHFWLRQ SURYLGHV QHWZRUNLQJ RSSRUWXQLWLHV IRU QHZ ODZ\HUV DQG LV RSHQ WR DOO UHJXODU PHPEHUV ZKR DUH
\HDUV ROG RU \RXQJHU RU ZKR KDYH EHHQ DGPLWWHG WR SUDFWLFH ODZ IRU VHYHQ \HDUV RU OHVV )UHH
1XUVLQJ+RPH6HFWLRQ
6SRQVRUV PHHWLQJV DQG H[FKDQJHV FDVH HYDOXDWLRQ DQG RWKHU LQIRUPDWLRQ IRU SODLQWLII DWWRUQH\V $QQXDO )HH :RUNHUV
&RPSHQVDWLRQ6HFWLRQ
7KLV VHFWLRQ SURYLGHV QHWZRUNLQJ RSSRUWXQLWLHV IRU PHPEHUV SUDFWLFLQJ ZRUNHUV
FRPSHQVDWLRQ ODZ 7KH VHFWLRQ
VSRQVRUV ZRUNHUV FRPS VHPLQDUV DQG SURYLGHV LQSXW IRU OHJLVODWLYH LQLWLDWLYHV $QQXDO )HH (TXLSPHQW5HQWDO
5HQW IURP 07/$ DQG VDYH LQ FRVWV IRU HTXLSPHQW XVHG IRU WULDO ZRUN 2YHUKHDG SURMHFWRU IRU WUDQVSDUHQFLHV DQG DQ /&' SURMHFWRU
IRU GLVSOD\LQJ GHPRQVWUDWLYH HYLGHQFH GLUHFWO\ IURP \RXU FRPSXWHU WR D ODUJH VFUHHQ 07/$ SURYLGHV WUDLQLQJ IRU XVH RI /&' SURMHFWRU &/(6HPLQDUV/XQFK3URJUDPV
5HJXODU PHPEHUV UHFHLYH RII QRQPHPEHU UDWH IRU DWWHQGDQFH DW VHPLQDUV GHVLJQHG DQG SUHVHQWHG IRU WULDO ODZ\HUV E\ WULDO ODZ\HUV
)RU 5HJXODU DQG 6XVWDLQLQJ PHPEHUV RQO\ 07/$
V LQKRXVH OXQFK SURJUDPV RIIHU WLPHO\ VPDOOJURXS RSHQ GLVFXVVLRQV ZLWK
H[SHUWV MXGJHV DQG ODZ\HUV RQ D YDULHW\ RI VSHFLILF OHJDO WRSLFV $ QRPLQDO IHH LQFOXGHV D ER[ OXQFK
:((./<%/$67(&OLSV
07/$ SURYLGHV DQ HPDLO QHZV VXPPDU\ WKH %/$67 RI 7ULDO DQG $SSHOODWH 'HYHORSPHQWV ,QWHUQHW /LQNV DQG 07/$ 8SGDWHV
'DLO\ OHJDO QHZV EULHIV UHSRUWLQJ VLJQLILFDQW OHJDO GHFLVLRQV WKURXJKRXW WKH FRXQWU\ GHOLYHUHG IUHH YLD HPDLO
7ULDO5HSRUWHU
0HPEHU GXHV LQFOXGH D VXEVFULSWLRQ WR 7ULDO 5HSRUWHU 07/$
V TXDUWHUO\ MRXUQDO HGLWHG DQG ZULWWHQ E\ WULDO ODZ\HUV
$GYHUWLVLQJ UDWHV IRU PHPEHUV DUH OHVV WKDQ WKH QRQPHPEHU RU YHQGRU UDWHV
/HJLVODWLYH5HSUHVHQWDWLRQ
)XOOWLPH SURIHVVLRQDO OREE\LQJ UHSUHVHQWDWLRQ LQ $QQDSROLV WR WUDFN DQG LQWURGXFH OHJLVODWLRQ RI LQWHUHVW WR WKH WULDO EDU
/HJLVODWLYH$OHUWV
$G KRF SXEOLFDWLRQ WR NHHS PHPEHUV DSSULVHG RI WKH ODWHVW OHJLVODWLYH GHYHORSPHQWV LPSDFWLQJ FLYLO SUDFWLFH
'HSRVLWLRQDQG'RFXPHQW%DQN
)RU 5HJXODU DQG 6XVWDLQLQJ PHPEHUV RQO\ 07/$ VWRUHV QHDUO\ H[SHUW GHSRVLWLRQV 0HPEHUV DUH ZHOFRPH WR UHYLHZ GHSRVLWLRQV LQ WKH
07/$ 2IILFH DW QR FKDUJH 'HSRVLWLRQ GRQRUV UHFHLYH UHGXFHG UDWHV IRU SXUFKDVHG FRSLHV DQG HOHFWURQLF FRSLHV RI WKHLU RZQ GRQDWHG GHSRVLWLRQV
07/$ LV EXLOGLQJ D ILUVW UDWH GRFXPHQW EDQN RI IUHTXHQWO\ QHHGHG SUDFWLFH GRFXPHQWV WKDW ZLOO EH DYDLODEOH IURP WULDOVPLWK
0HPEHUVKLS'LUHFWRU\
$ OLVWLQJ RI DOO 07/$ PHPEHUV LQFOXGLQJ OLVWLQJV E\ HPDLO DGGUHVVHV FRXQW\ ILHOGV RI SUDFWLFH DQG E\ RXWRIVWDWH OLFHQVHV
$PLFXV&XULDH
$VVLVWDQFH IURP 07/$ IRU \RXU FDVHV RQ DSSHDO ZKLFK UDLVH EURDG SROLF\ LVVXHV
6HPLQDU$XGLRWDSHV
07/$ VHPLQDUV RQ DXGLRWDSH ZLWK ZULWWHQ PDWHULDOV
9,6$*ROGRU3ODWLQXP&DUG
07/$
V RZQ 9,6$ FDUG H[FOXVLYHO\ IRU PHPEHUV ² (DUQ IUHTXHQW IO\HU PLOHV ZLWK WKH SODWLQXP FDUG
7ULDOVPLWK
$FFHVV WR D QDWLRQDO RQOLQH GHSRVLWLRQ DQG OHJDO GRFXPHQWV VHUYLFH IRU SODLQWLIIV
ODZ\HUV RQO\ WKURXJK 07/$ PHPEHUVKLS
6XEVFULELQJ PHPEHUV H[FOXGHG
&RPPLWWHHV
1HWZRUNLQJ DQG PHPEHU SDUWLFLSDWLRQ LQ DVVRFLDWLRQ SURMHFWV DQG DFWLYLWLHV WKURXJK FRPPLWWHH ZRUN
0HHWLQJ6SDFH
0HPEHUV PD\ VFKHGXOH IUHH XVH RI D FRQIHUHQFH URRP DW WKH 07/$ RIILFHV IRU FOLHQW PHHWLQJV HWF &RQIHUHQFH URRPV DURXQG WKH VWDWH RQ WKH 07/$ ZHE VLWH
0$5</$1' 75,$/ /$:<(56 $662&,$7,21
0(0%(56+,3 $33/,&$7,21
Bar Admission Date ____________
<RXU ILUVW DGPLVVLRQ WR DQ\ 6WDWH %DU 'XHV VWUXFWXUH EDVHG RQ \HDUV LQ SUDFWLFH
All applicants must complete the following:
I certify that my personal injury and/or workers’ compensation practice involves _______% insurance defense work and
That my firm's personal injury and/or workers’ compensation practice involves _______% insurance defense work.
Signature ____________________________________________
MTLA's 50% Rule: If your personal injury and/or workers’ compensation insurance defense work, or that of your firm's, exceeds 50%, you are
welcome to join MTLA as a non-voting, Subscribing Member at the Regular Member rates. Subscribing Members do not have access to MTLA's
Document Bank, DepoConnect, MTLA's Listserv and the member area of MTLA's website. Other restrictions may also apply.
R egular M em bership
___ Law Student
___ New Admittee*
___ 1-4 years
___ 5-9 years
___ 10+ years
$25.00
$35.00
$85.00
$175.00
$225.00
___ I am applying for a Subscribing
Membership. (Regular Membership
rates apply. See 50% Rule above.)
Sustaining M em bership
MTLA Sections
Sustaining members receive an additional 15%
Family Law
discount on member rates for CLE programs and ___ I would like to join the Family Law Section.
other selected services or programs. This memberAdd $20.00 to my dues payment.
ship level helps subsidize MTLA's low rates for new
Medical Negligence
lawyers.
___ I would like to join MTLA’s Medical Negligence
Section. Add $100 to my dues payment (includes
___ 1-4 years
$170.00
exclusive Listserv for section members).
___ 5-9 years
$350.00
___ 10+ years
$450.00
Affiliate M em bership
Non-lawyer personnel in a member's office.
___ Affiliate
*Admitted to the Bar for less than one year
$75.00
Legislative Contribution
___ Add $100.00 to my dues payment as a
contribution to MTLA's legislative work.
New Lawyers
___ I would like to join the FREE New Lawyers Section.
I am 35 years old or younger or have been practicing
for seven years or less.
Nursing Home
___ I would like to join the Nursing Home Section.
Add $20.00 to my dues payment.
Workers’ Compensation
___ I would like to join MTLA’s Workers’ Compensation
Section. Add $30 to my dues payment.
P LEASE N OTE : B ecause of M TLA's lobbying activities and in accordance with IR S laws, 57% of your membership dues is nondeductible as a business expense.
Name ________________________________________________________
The following information will not be published or shared with commercial entities:
Firm Name ____________________________________________________
Home Address _________________________________________________
Address ______________________________________________________
City/State/Zip __________________________________________________
City/State/Zip __________________________________________________
County _______________________________________________________
Phone________________________________________________________
County _______________________________________________________
Home Phone __________________________________________________
Legislative District ______________________________________________
Congressional District ___________________________________________
This information can be found on your voter registration card.
Fax __________________________________________________________
Referred by MTLA Member: _____________________________________
Email ________________________________________________________
)RU SXEOLFDWLRQ LQ 07/$
V 0HPEHUVKLS 'LUHFWRU\
WebSite ______________________________________________________
I am also licensed to practice law in the following states:
_______________________________________________________
***All applications are reviewed by the Board of Governors at the next Board meeting, usually held on the 3rd Wednesday of each month.
While application is pending, CLE attendance at member rates is immediately granted to all applicants for Regular and Sustaining memberships.
Other member benefits may not be available, pending Board approval.
Check Enclosed ___
Credit Card Payment: ___ MasterCard
Return with Payment to
___ Visa
___ Discover
___ AmEx
Card # __________________________________________________________
Expiration Date ____ / ____
Signature ________________________________________________________
MTLA Membership
120 W. Fayette St., Suite 711
Baltimore, MD 21201
PH: 410-539-4336 FX: 410-783-5981
Email: mtla@mdtriallawyers.com
www.mdtriallawyers.com
48
Trial Reporter
Fall 2003
** Seminar written materials will accompany all orders**
2003 MTLA Annual Convention– 5/30/03
Full Day Seminar– Only available on CD
Annual Convention that hosted National Guest Faculty that spoke on cutting edge legal topics.
Trial Advocacy A to Z– 11/01/02
Joint Seminar with the DC and VA Trial Lawyers Association
Full Day Seminar-Only available on CD
The ABC’s of Trial Advocacy and Juror Communication straight from the Tort Masters.
Protecting Our Children– 4/01/03
Half Day Seminar– Only available on cassette tapes
Important tips you want to know when litigating a child injury case.
Member Pricing
Full Day Seminar Regular Price- $130
Sale Price- $95
Half Day Seminar Regular Price- $65
Sale Price- $50
Non Member Pricing
Full Day Seminar Regular Price- $200
Sale Price- $135
Half Day Seminar Regular Price- $115
Sale Price- $95
To order please visit www.mdtriallawyers.com (click on MTLA products)
or call (410) 539-4336
Fall 2003
Trial Reporter
49
0DU\ODQG7ULDO/DZ\HUV$VVRFLDWLRQ
0DU\ODQG7ULDO/DZ\HUV$VVRFLDWLRQ
7HQWDWLYH
7HQWDWLYH
0DU\ODQG
G7ULDOO/DZ\HUV
V$VV
VVRFLDWLRQ
Q
&
*DU\
6WUDXVE
6WUDXVEH
H
UJ
)RXQGDWL
&
DDO,OH
Q
G
D
U
R
I
(
Y
H
)RXQGDWLR
R
Q
,QF
H Q G D U R I ( Y HQQWWV
V
7HQWDWLYH
& D O H Q G D U R I ( Y H Q W V
DECEMBER 2003
Friday December 5, 2003
Full Day Program
8:30 am—4:00 pm
Medical Malpractice Section Seminar
Medical Malpractice—In It to Win— Learn from the
Experts
Radisson, Lord Baltimore Hotel, Downtown Baltimore
Moderator: Dov Apfel, Joseph, Greenwald & Laake
Monday, December 15, 2003
Lunch Program (co-sponsored by MD Defense
Counsel)
A View from The Bench—Discovery Motions
Judge Kaye Allison, Baltimore City
Moderator: Alison D. Kohler
Noon—1:15 pm
Site: Conference Dining Room, Law Offices of
Gordon Feinblatt
MARCH 2004
Friday March 5, 2004
Full Day Seminar
All About Depositions
New Lawyers Section
Moderator: Albert Lechner
Friday, March 26, 2004
Mid-Day Teleconference Seminar
Insurance Coverage & Coordination
Faculty: Vicki Dexter
APRIL 2004
Friday April 2, 2004
Half Day Seminar
Monetary Awards Around the State
Family Law Section
Workers Comp Section Breakfast
JANUARY 2004
Friday January 16, 2004
Full Day Program
Work Horse Seminar - 20 Presentations
Radisson Lord Baltimore Hotel Baltimore City
Moderator: David Harak, Robinette & Harak
Case Evaluation Clinic
MTLA 50th Anniversary Gala
January 24, 2004
Scottish Rite Temple
3800 N. Charles St.
Baltimore, MD 21208
MAY 2004
Wednesday April 28, 2004
General Membership Dinner
Bike Helmet Giveaway Day
TBD
JUNE 2004
Friday February 6, 2004
Luncheon Seminar
MTLA Annual Convention
June 18 and 19
Fontainblue Hotel
Ocean City, MD
Tort Claims Act Cases
SITE: MTLA Offices
120 W. Fayette St., Ste 711
Baltimore, MD
Moderator: Evelyn Darden
Medical Negligence Section Programs Dates:
February 26, 2004
May 5, 2004
FEBRUARY 2004
6$9(
(7+(
('$7(
6$9(7+('$7(
6$9(7+('$7(
07/$ WK $QQLYHUVDU\ *DOD
/RFDWLRQ 6FRWWLVK 5LWH 7HPSOH RI )UHH 0DVRQU\ %DOWLPRUH
6DWXUGD\ -DQXDU\ %ODFN 7LH 2SWLRQDO
&HOHEUDWLQJ <HDUV RI ([FHOOHQFH
For more information, visit the MTLA Website at: http:// www.mdtriallawyers.com
50
Trial Reporter
Fall 2003
Y OU A RE CORDIALLY INVITED
TO THE
M ARYLAND T RIAL L AWYERS ASSOCIATION
50TH ANNIVERSARY G ALA
&
SILENT AUCTION
SATURDAY, J ANUARY 24, 2004
SCOTTISH RITE OF FREE MASONRY
3800 N. CHARLES ST.
BALTIMORE, MARY LAND 21208
EVENING EVENTS INCLUDE:
SILENT A UCTION & COCKTAIL PARTY 5:30—7:00 PM
DINNER FOLLOWS
GUEST SPEAKER JUSTICE JOSEPH P. K ENNEDY
PROGRAM HONORING PAST PRESIDENTS OF MTLA
ENTERTAINMENT BY JR. CLINE & THE RECLINERS
Complimentary Commemorative Photos by Snap Shots
Valet Parking
Attire: Black Tie Optional
$95.00 PER TICKET—$900 FOR TABLE OF 10
FOR MORE INFORMATION CALL 410-539-4336
Fall 2003
Trial Reporter
51
52
Trial Reporter
Fall 2003