Trial Reporter (Fall 2003) - Obie Law
Transcription
Trial Reporter (Fall 2003) - Obie Law
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: [email protected] 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/$·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rial 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 [email protected] or visit MTLA website www.mdtriallawyers.com. 12 Trial Reporter Fall 2003 Miracles Can Happen (Continued from page 11) 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! 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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? (Continued from page 15) 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 intervals preceding impact. • Throttle Position - In five one-second intervals preceding impact. • Brake Status - In five one-second Trial Reporter intervals preceding impact. • 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 (Continued on page 20) 19 Crash Data Record Systems CDR Software Vehicle Coverage (Continued from page 19) 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, Isuzu, 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: [email protected]: 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: [email protected]: 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: [email protected]: 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. (Continued on page 24) 22 Trial Reporter Fall 2003 Fall 2003 Trial Reporter 23 From the Listserve (Continued from page 22) 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)); (Continued on page 26) WALLS REPORTING, INC. 410-647-6434 24 Trial Reporter Fall 2003 Fall 2003 Trial Reporter 25 From the Listserve (Continued from page 24) 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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d 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: [email protected]: Have a matter now that involves a claim for breach of employment contract. (Continued on page 28) 26 Trial Reporter Fall 2003 Fall 2003 Trial Reporter 27 From the Listserve (Continued from page 26) 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: [email protected]: 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: [email protected]: 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 [email protected]. 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 Counsel for Appellant 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 (Continued on page 32) Fall 2003 Trial Reporter 31 Counsel for Appellant 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 (Continued on page 34) 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 Counsel for Appellant 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  2UWKRSHGLF 6XUJHU\  3DLQ 0DQDJHPHQW  &KLURSUDFWLF  *HQHUDO 6XUJHU\  3K\VLFDO 7KHUDS\  ,QWHUQDO 0HGLFLQH  (OHFWUR GLDJQRVWLF 7HVWLQJ  )XQFWLRQDO 5HVWRUDWLRQ  $TXDWLF 7KHUDS\  :RUN +DUGHQLQJ  )XQFWLRQDO &DSDFLW\ (YDOXDWLRQV  ,QGHSHQGHQW 0HGLFDO (YDOXDWLRQV  )XOO 5DGLRORJ\ 6HUYLFHV 05, ;5D\ )RUHLJQ ODQJXDJH VXSSRUW · +RXUV RI RSHUDWLRQ PD\ YDU\ SHU ORFDWLRQ · 0RQGD\²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all 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 Allegations of Liability: Injuries/Damages: EXPERT WITNESSES: Plaintiff ’s Expert Sue Antell, Pediatric Neuropsychologist (Continued on page 40) 38 Trial Reporter Fall 2003 Fall 2003 Trial Reporter 39 Recent Verdicts and Settlements (Continued from page 38) 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. Plaintiff ’s Expert 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 Allegations of Liability: 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 (Continued on page 42) 40 Trial Reporter Fall 2003 Fall 2003 Trial Reporter 41 Recent Verdicts and Settlements (Continued from page 40) 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 (Continued on page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rial Reporter Fall 2003 Fall 2003 Trial Reporter 43 Recent Verdicts and Settlements (Continued from page 42) 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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²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ar 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: [email protected] 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 Friday April 16, 2004 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 Friday April 23, 2004 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