Maryland Significantly Limits the Imputed Negligence Doctrine

Seaborne-Worsley v. Mintiens, No. 26, 2018 Md. LEXIS 188 (Apr. 20, 2018). 

In late April, the Court of Appeals of Maryland significantly limited the controversial doctrine of imputed negligence. In the context of automobile cases, this doctrine allows for the negligence of a driver to be transferred to the car’s owner if she were riding as a passenger at the time of the accident, based on the “fiction,” as the Court called it, that the owner can control the driver while she is a passenger.  

The doctrine, therefore, makes it difficult for injured parties to recover from negligent third-parties because their own contributory negligence (imputed from the negligence of the drivers of their vehicles) defeats their claims. 

Imputed negligence developed during the emergence of the automobile industry, when there was a sudden increase in accidents and financially irresponsible drivers. As such, it was once useful, but as laws and insurance coverage policies evolved over time, the doctrine became less necessary for finding irresponsible parties and establishing their liability.  

In the instant case, the Court of Appeals recognized that the imputed negligence doctrine promotes the dangerous activity of backseat driving and noted that control of a vehicle by a passenger can be evidence of negligence in itself. The Court differentiated between an owner’s right to control her vehicle and her inability to safely control it while riding as a passenger.   

In reaching its decision, the Court looked to other states’ treatment of the imputed negligence doctrine, and many states have thrown it out completely. The Court also relied upon its own prior decisions, which have called the doctrine “unrealistic” and “fictitious.” The Court has created exceptions to the doctrine in the past when its application stretched too far from its original purposes of spreading risk and compensating innocent third-parties. 

In this decision, the Court declined the opportunity to completely abandon the imputed negligence doctrine. The Court, however, significantly limited its application, holding that the doctrine should not be used to impute the negligence of a driver to the vehicle’s owner when she is riding as a passenger at the time of an accident. 

This will allow owner-passengers to recover for their injuries based on the negligence of third-parties because they will no longer be found as contributorily negligent and responsible for the negligence of the drivers of their vehicles. 

In this modern decision, the Court of Appeals promotes fairness to owner-passengers in Maryland. However, the Court tactfully preserved the imputed negligence doctrine, explaining that it may be again useful in the future when many vehicles may operate independently. 

- Elizabeth McKelvy, Law Clerk 

Average Weekly Wage Statements are Important, But are They Enough?

Richard BeaversConstruction, Inc., et al. v. Dexter Wagstaff, 2018 Md. App. Lexis 207 (Md. Ct. Spec. App. March 1, 2018).

The Maryland Court of Special Appeals recently issued an opinion in Richard Beavers Construction, Inc., et al. v. Dexter Wagstaff which discusses how to correctly calculate employees’ average weekly wage.  There, Richard Beavers Construction, Inc. (“RBCI”) hired Dexter Wagstaff (“Wagstaff) to work forty (40) hours per week at $18.95 an hour.  Although Wagstaff needed to be available to work eight (8) hours a day for five (5) days per week, his supervisors instructed him not to report to the construction site on days when it was raining or snowing.  Wagstaff did not receive payment for these hours and days where he did not work because of poor weather.  Wagstaff did not miss any additional time from work, other than the time missed for poor weather.  In the six (6) weeks leading up to the accident, RBCI’s records show that Wagstaff worked an average of only 16.75 hours per week, for which he received average gross earnings of $317.41 per week. 

             

Three (3) weeks after the accident, Wagstaff submitted a claim with the Workers’ Compensation Commission.  He reported his “Gross Weekly Wages” as $758.00, the amount that Wagstaff would earn from working forty (40) hours at the rate of $18.95 per hour.  In response, RBCI submitted its payment records, claiming Wagstaff earned an average of $317.38 per week for the six (6) weeks prior to the accident.  On May 31, 2013, the Commission issued an order which determined Mr. Wagstaff’s average weekly wage to be $317.38.  The order, however, expressly stated that both parties have the right to have the issue of average weekly wage adjudicated at the first hearing before the Commission.

                

On April 16, 2015, the Commission held a hearing on Wagstaff’s average weekly wage.  Wagstaff testified as to how he was hired full-time, and how the only time he missed was due to poor weather.  The owner of RBCI testified that though he did not personally hire Wagstaff, he recalled that he did not promise that Wagstaff could work “any exact number of hours,” but rather he “could work when work was available.”  When asked whether Wagstaff was hired on a full-time basis, the owner of RBCI answered: “I would assume so.”  Later that day, the Commission issued an order stating Wagstaff’s true average weekly wage was $758.00.

In coming to a decision, the Court of Special Appeals reviewed the longstanding case law which suggests that average weekly wage should project what the employee would have gone on to earn if not for the accidental injury. [1] The Court of Special Appeals concluded that the Commission’s decision was not premised on an error of law, for there is no statute, regulation, or case law which suggests that a worker’s six (6) week earnings history, without more, is conclusive evidence of what that worker would expect to earn in a normal week.  The Court of Special Appeals further indicated that RBCI should have provided additional evidence at the hearing demonstrating the total hours that similarly-situated employees at RBCI, or comparable firms, normally work throughout the year.

- Associate Ashley Bond, Esq. 

[1] Crowner v. Balt. United Butchers Ass’n, 226 Md. 606, 610 (1961). 

Rima A. Kikani joins RSRM as an Associate

Rima Kikani is a 2011 graduate of the University of Maryland, Baltimore County, and a 2014 graduate of the University of Baltimore School of Law. 

Following law school, Ms. Kikani completed a judicial clerkship at the Circuit Court for Baltimore City, and worked for a plaintiffs’ litigation firm on medical malpractice, wrongful death, premises liability, and civil rights matters. She is a 2018 MSBA Leadership Academy Fellow, and also an Adjunct Professor at the University of Baltimore School of Law.

Ms. Kikani joined RSRM as an Associate in December 2017.

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.  

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.

- Associate Rima Kikani 

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