Thursday, March 22, 2018

Alicyn Campbell has been made a Partner at RSRM

RSRM is pleased to announce that Alicyn C. Campbell has become a Partner with the firm.

Ms. Campbell has been an attorney with RSRM since 2013.  The focus of Ms. Campbell's practice is Maryland Workers' Compensation cases.  Prior to joining the firm, Ms. Campbell was a trial lawyer with Travelers Insurance Company, where she handled commercial and personal liability defense suits throughout Maryland.  

Ms. Campbell received her undergraduate degree in Business Accounting from Auburn University, and she is a Certified Public Accountant (inactive).  Ms. Campbell attended the University of Baltimore law school at night while working full time.  She graduated with honors from UB in 2000.  

Thursday, March 8, 2018

Under the Maryland Rule Governing Basis of Expert Testimony, "Disclosure to the Jury" is Ruled Equivalent to "Admission into Evidence"

Lamalfa v. Hearn, 2018 Md. LEXIS 50, 2018 WL 679687 (Md. Feb. 2, 2018)

In early February, the Maryland Court of Appeals held that materials relied upon by an expert witness that are “disclosed to a jury” are also considered “admitted into evidence” provided that they are: 1) trustworthy; 2) unprivileged; 3) reasonably relied upon by the expert in forming his/her opinions; and 4) necessary to illuminate the expert’s testimony.

The Court considered this issue in the context of a motor vehicle accident arising out of Baltimore City. In October of 2011, the Petitioner was rear-ended while on her way to a family wedding. The Petitioner chose not to seek medical treatment at the scene of the accident, but over the course of the next several weeks, developed upper and lower back pain, hip pain, arm and shoulder pain, abdominal pain, and multiple forms of emotional distress. She underwent surgeries for a hernia and a rotator cuff tear.

In September of 2014, the Petitioner filed suit against the Respondent seeking compensation for her medical injuries. At trial, the Respondent introduced Dr. Louis Halikman as a defense expert witness in orthopedic surgery. Relying on four sets of post-accident medical records, Dr. Halikman testified that the Petitioner’s surgeries were not causally related to the October 2011 accident. Over the Petitioner’s objections, the court admitted the medical records that Dr. Halikman had relied upon, into evidence. At the conclusion of trial, Petitioner requested the jury for an award between $50,000.00 - $150,000.00. The jury returned a verdict for $9,926.05 in medical bills and $650.00 for pain and suffering, for a total award of $10,576.05.

The Petitioner appealed her award to the Court of Special Appeals, which affirmed the circuit court’s judgment. The Petitioner then appealed to the Court of Appeals, arguing that the circuit court erroneously admitted the records that Dr. Halikman relied upon, without the appropriate authentication or foundation establishing the truthfulness of the records.

Under Maryland law (Md. Rule 5-703(b)), courts may disclose to the jury, materials that expert witnesses rely upon, if the materials are: 1) trustworthy; 2) unprivileged; 3) reasonably relied upon by the expert in forming his/her opinions; and 4) necessary to illuminate the expert’s testimony.

In this case, the Court evaluated whether the term “disclosed” in the Rule, also means “admitted into evidence,” and concluded that it does, if the evidence satisfies the aforementioned four factors. The Court reasoned that the Rule does not distinguish between “disclosure” and “admission of evidence” because its language does not limit the definition of “disclosure.” Had the legislature meant to limit the term, it would have specified so in the Rule. Further, the Court adopted the Court of Special Appeals’ rationale, stating that for a jury to use the materials and thereby evaluate the expert’s credibility, the jury must also be able to read those materials. The Court noted that nothing in the Rule prohibits giving the materials to the jury just as if the materials had been admitted into evidence. The Court concluded by holding that even if the circuit court erroneously admitted the medical records, that error was harmless because nothing had indicated that the jury had placed any undue weight on the records.

This decision sets a notable precedent because it allows for any facts, data, and materials (relied upon by an expert witness) that are properly disclosed to a jury (under Md. Rule 5-703(b)) to also be automatically admitted into evidence at trial.

Monday, December 4, 2017

RSRM Welcomes Ashley Bond as an Associate

Ashley Bond graduated cum laude from the University of Baltimore School of Law in 2016, and graduated from Towson University with a dual major in Psychology and Sociology in 2012. 

While attending law school, Ms. Bond was a competing member of her school’s National Trial Competition Team, where she placed as a regional semi-finalist.  She also served as a Rule 16 attorney in the Bronfein Family Law Clinic.  Following law school, Ms. Bond was an associate with a criminal defense firm, where she represented clients in Maryland circuit and district courts in complex criminal matters.       

Ms. Bond joined the RSRM team in November 2017.  The focus of her practice is workers’ compensation and insurance defense.  

“Analytical Gaps” Between an Expert’s Data and Opinions Put Expert Opinions at Risk

Stanley Rochkind v. Starlena Stevenson, July 11, 2017 (Court of Appeals of Maryland)

In Rochkind v.Stevenson, the Maryland Court of Appeals held that the trial court abused its discretion when it admitted a physician’s expert testimony pursuant to Md. Rule 5-702(3) linking a Plaintiff’s ADHD diagnosis with lead poisoning, when the physician relied on studies that did not adequately demonstrate a causal link between lead exposure and a general and specific ADHD diagnosis.

In the fall of 1991, 10-month-old Starlena Stevenson resided at a 3823 Fairview Avenue, which was owned in part by Stanley Rochkind.  The Fairview residence contained flaking and chipped paint.  Lead testing performed decades later revealed lead-based paint on multiple interior and exterior surfaces at the Fairview residence.

By age 5, Stevenson was diagnosed with ADHD and prescribed medication after being evaluated by psychologist Dr. Stephen Ley.  Stevenson continued to suffer other mental illnesses as she got older, including depression and auditory hallucinations.

In December 2011, Stevenson sued Rochkind in the Circuit Court for Baltimore City for negligence and violations of the Maryland Consumer Protection Act.  In February 2013, pediatrician Celia Hall-Carrington, M.D. drafted a report concluding that that Stevenson was poisoned by lead at the Fairview residence, and that the lead poisoning was a significant contributing factor to all of Stevenson’s neuropsychological problems, including her ADHD.

The case proceeded to trial, and the jury awarded a verdict in Stevenson’s favor; however, the trial court granted, in part, Rochkind’s motion for new trial, ordering a new trial on the issue of damages alone.  Before the second trial in October 2014, Rochkind renewed motions in limine, which had been raised before the first trial, requesting that the court exclude Dr. Hall-Carrington’s testimony that Stevenson’s lead exposure caused Stevenson’s cognitive defects, specifically ADHD.  The trial court denied Rochkind’s motions.

Dr. Hall-Carrington’s opinions relied on an EPA publication entitled “Integrated Science Assessment for Lead” (“EPA-ISA”), which posits that “multiple, high quality epidemiological studies” revealed “a causal relationship between lead exposure and attention decrements, impulsivity, and hyperactivity in children.”  Dr. Hall-Carrington testified during the second trial that the epidemiological studies found that children with blood-lead levels similar to Stephenson’s can have attention problems.  Dr. Hall-Carrington conceded that the EPA-ISA did not mention ADHD specifically, but testified that the EPA-ISA contains a listing of ADHD symptoms.

Following the second trial, the jury returned a verdict exceeding $1.4 million.  Rochkind filed a motion for a new trial, which the court denied.

On appeal, the Maryland Court of Special Appeals affirmed the trial court’s ruling admitting Dr. Hall-Carrington’s testimony.  The Court of Special Appeals held that Dr. Hall-Carrington’s ADHD causation testimony was admissible under Maryland Rule 5-702 because her opinion was supported by an adequate factual basis.

Rochkind then petitioned the Maryland Court of Appeals to consider, in part, if the trial court had erred in admitting Dr. Hall-Carrington’s general and specific causation testimony under Maryland Rule 5-702.  Rochkind argued that Dr. Hall-Carrington’s testimony did not satisfy Maryland Rule 5-702(3)’s requirement that there be a sufficient factual basis to support expert testimony because Dr. Hall-Carrington did not rule out other potential causes of ADHD.  Rochkind further argued that Dr. Hall-Carrington was required to cite epidemiological studies finding a causal link between lead poisoning and ADHD in lieu of providing a differential diagnosis.  Stevenson argued that Dr. Hall-Carrington’s testimony satisfied Maryland Rule 5-702(3) because Dr. Hall-Carrington relied upon extensive support for the conclusion that lead exposure can cause ADHD.

As a case of first impression in Maryland, the Court of Appeals relied upon the rationale of the United States Supreme Court in General Electric Co. v. Joiner, 522 U.S. 136 (1997), holding that the trial court abused its discretion in admitting Dr. Hall-Carrington’s testimony that lead poisoning caused Stevenson’s ADHD.  In doing so, the Court of Appeals pointed to the fact that, although the studies cited in the EPA-ISA link lead exposure and attention deficits and hyperactivity, those same studies do not state that lead exposure causes ADHD. More importantly, the court further noted that EPA-ISA finding of a lead-associated increase in ADHD was “not a major consideration,” and that an ADHD diagnosis is also attributable to factors such as socioeconomic status and parental education and caregiving.  Without any other scientific evidence or epidemiological studies to support the opinions that lead exposure causes ADHD in general, or specifically in Stevenson’s case, the court found that Stevenson failed to meet her burden in demonstrating that Dr. Hall-Carrington based her testimony on an adequate supply of date as required by Maryland Rule 5-702(3).

This case is important to Maryland attorneys and insurers when consulting and retaining experts in all fields.  In doing so, it is crucial that the expert be able to base his or her opinions on scientific research and studies that sufficiently support the expert’s opinions.  If there is any perceived “analytical gap” between the expert’s data and his or her conclusion(s), Rochkind v. Stevenson paves the way for Maryland trial courts to exclude, or truncate, the expert’s testimony.

- Benjamin Beasley, Associate 
  Rollins, Smalkin, Richards & Mackie, LLC 

Monday, September 18, 2017

Workers’ Compensation: Subsequent, Intervening Injuries Do Not Necessarily Bar a Claim for Worsening Condition

Electrical GeneralCorp. et al. v. Michael L. Labonte, No. 69, September Term 2016 (decided July 27, 2016)

The Court of Appeals has put to rest a dispute on the ramifications of a subsequent,, unrelated event in a workers’ compensation case.  In Electrical General Corp. et al. v. Michael L. Labonte, the Court of Appeals issued an opinion finding a subsequent, intervening, and unrelated event does not necessarily preclude the employer’s liability for workers’ compensation benefits. 

The facts arose out of a work-related injury in 2004 in which Mr. Labonte injured his back in a work-related injury.  On December 31, 2006, he was involved in an altercation with a police officer after a traffic stop, which aggravated his back injury.  He filed issues for treatment in early 2007 after further medical treatment was denied by the carrier.  The Maryland Workers’ Compensation Commission (“Commission”) denied the additional treatment in March of 2007.  There was no appeal.

In October of 2007, Mr. Labonte filed for permanency and the commission found he had a disability of 30% to his back, of which 10% was due to pre-existing and subsequent events.  Again, there was no appeal.

In 2012, the claimant filed a Petition to Reopen for a worsening of condition.  The Commission denied his claim because the prior award in March of 2007 found the subsequent injury broke the causal nexus between his need for treatment and the original injury.  The claimant appealed and won in Circuit Court and the Court of Special Appeals.  The Court of Appeals heard the case for a final decision on the matter. 

The Court of Appeals found the existence of a prior finding of a subsequent intervening event does not preclude the Commission from awarding additional permanent partial disability benefits for a worsening of an employee’s condition.  The issue of whether there is a worsening of condition attributable solely to the work injury is a factual matter for the Commission to determine in each individual case.  

Tuesday, June 6, 2017

DC Moves to Comparative Negligence for Pedestrians and Bikers

Until recently, the District of Columbia has long recognized the doctrine of contributory negligence as a complete defense in a negligence action.  Under contributory negligence, if a plaintiff is involved in an accident and even 1% at fault for what happened, the plaintiff is precluded from recovery.  Currently, the District of Columbia and only four states use the contributory negligence standard: Alabama, Maryland, North Carolina, and Virginia. Other states have employed one version or another of comparative negligence, which compares the fault of the parties and allocates responsibility to pay damages according to percentage of fault.

As of November 26, 2016, the District of Columbia enacted The Motor Vehicle Collision Recovery Act of 2016, carving out a specific exception to the District's legal negligence standard in automobile accidents involving a motor vehicle and pedestrians, bicyclists, or other non-motorized users (like Segways and skateboards).  The law enables a plaintiff pedestrian or bicyclist to recover if they are negligent, as long as they are found to be 50% or less at fault in an accident with a motor vehicle.   Specifically, the Act states as follows:

(a)  The negligence of a pedestrian, bicyclist, or other non-motorized user of a public highway involved in a collision with a motor vehicle shall not bar the plaintiff’s recovery in any civil action unless the plaintiff’s negligence is:
(1)  A proximate cause of the plaintiff’s injury; and
(2)  Greater than the aggregated total amount of negligence of all the defendants that proximately caused the plaintiff’s injury.

Motor Vehicle Collision Recovery Act of 2016, 2015 Bill Text DC B. 4

In effect, the new law introduces “modified” comparative negligence in cases involving accidents between motorized vehicles and pedestrians or bicyclists.  By illustration, if a jury finds that an injured bicyclist was 25% negligent in an accident, the bicyclist would recover 75% of the verdict.  If the bicyclist were found to be 75% at fault, however, the bicyclist would be found to be contributory negligent and would recover nothing.  This law thus changes the way contributory negligence can be used, confining its applicability to situations where a plaintiff’s negligence is greater than the aggregated total amount of negligence of the defendant(s). 

Notably, the bill expressly preserves the doctrine of “last clear chance,” allowing a contributory negligent plaintiff to still recover if the defendant was in a position to observe the peril of the plaintiff and had the opportunity to avoid the harm.  The Act also does not affect the doctrine of joint and several liability. 

When dealing with an accident involving a pedestrian or bicyclist, the application of negligence is uniquely fact and situation specific. It may be that comparative negligence was promulgated as a result of the District’s urban environment and because pedestrians and cyclists, taken together, represent the most vulnerable users of our roadways.  In contrast, Maryland has long maintained the doctrine of contributory negligence over instituting a comparative negligence standard, despite being brought forth before the Maryland General Assembly on numerous occasions within the past several years.  Only time will tell what effect this law will have on the courts, litigation, insurance costs, and costs to individuals and businesses within the District.

Monday, April 24, 2017

The Court of Special Appeals Holds Settlement via E-Mail Enforceable in Ward v. Lassiter

On January 13, 2017, the Maryland Court of Special Appeals filed an unreported decision in Julie Ward v. Marjorie L. Lassiter upholding the Circuit Court for Anne Arundel County’s grant of Defendant’s Motion to Enforce Settlement Agreement against Plaintiff.

This case arises from a settlement agreement reached via e-mail stemming from a June 21, 2010 auto accident.  A three-day jury trial was set to begin on March 12, 2015 but as trial approached, and after some settlement negotiations, Plaintiff’s Counsel sent an e-mail confirming that his client would accept $7,000, if offered.  Defense Counsel responded simply with “[w]e are settled at $ 7,000.00.”  The case was removed from the trial docket but issues arose when Plaintiff’s Counsel e-mailed a proposed settlement agreement which Defense Counsel declined in favor of her own settlement agreement.  Ultimately, Plaintiff refused to sign any release or settlement agreement sent by Defense Counsel due to language that indemnified the Defendant from claims any third party could bring against her in connection with the injuries the Plaintiff suffered in the accident at issue.

In response, Defendant filed a Motion to Enforce Settlement which the circuit court granted after a hearing.  Plaintiff appealed the decision.  The dispute before the appellate court was whether the e-mails exchanged between the parties formed an enforceable settlement agreement and what exact terms did the agreement encompass.  Or as the Court of Special Appeals puts it “[t]he question, then, is what an agreement to settle an auto accident case involves, and thus, what terms the parties can be understood to have agreed to when they agreed to settle for $7,000.”

A settlement agreement is a contract which the parties enter into “for the settlement of a previously existing claim by a substituted performance,” Consol. Constr. Servs., Inc. v. Simpson, 372 Md. 434, 465 (2002) (citation omitted), and “settlement agreements are governed by ordinary principles of contract law.” Nationwide Mut. Ins. Co. v. Voland, 103 Md. App. 225, 231 (1995).  The Court found that the e-mails between the two attorneys demonstrated a “classic offer-and-acceptance exchange.”  The court further found that, even though there was no mention of releases, a release is typically needed to settle pending litigation.  The Plaintiff did not dispute that a release was needed but rather, the dispute was over the indemnification of the Defendant against third party claims that could be asserted against her.  Counsel for Plaintiff had included indemnification language in his release drafts.

The Court simply states “[t]he point of a settlement is to end the litigation and the uncertainty about the outcome.”  The Circuit Court’s grant of the Motion to Enforce the Settlement was upheld since the dispute over indemnification was a matter of math, not principle.  Additionally, the Plaintiff’s agreement to settle the case in exchange for a payment of $7,000 necessarily included agreement to release the Defendant and to indemnify the Defendant from claims any third party could bring against her in connection with the injuries the Plaintiff suffered in the accident at issue

The reliance of e-mails by attorneys and adjusters has become all too common.  Before you send out that quick “we’re settled” e-mail, it might be a good idea to know what you’re agreeing to when you click send.