Friday, December 20, 2013

RSRM Associate Participates in Civics and Law Program at a Local Baltimore City High School

On December 19, 2013 RSRM Associate Tara A. Barnes participated in a Civics and Law program at Patterson High School in Baltimore City, Maryland.  The program was sponsored by the Maryland State Bar Assocation and the Bar Association of Baltimore City.

Legal professionals including the Honorable JoAnn Ellinghaus Jones, Carroll County District Court, Honorable Pamila J. Brown, Howard County District Court and several practicing attorneys in various fields presented lessons, activities and discussion on topics including Rights and Responsibilities, Free Speech and School Speech, Power and Empowerment and Law in a Cyber Age.

Tara Barnes, Judge Ellinghause Jones and Assistant State's Attorney Sidney Butcher presented a program on Law and Justice.  This program enabled students to examine the nature and function of law in American society, explore the ideals of justice, due process, burden of proof, and the many factors that influence judging and sentencing in criminal cases.

The legal professionals also participated in a panel discussion where they discussed their roles and responsibilities, and provided helpful advice to students interested in pursuing a career in law.

The Civics and Law program was  a huge success and exposed High School students to many important aspects of law.  Local media, including WBAL was present and included a segment on this program.

Wednesday, December 18, 2013

RSRM Associate Tara A. Barnes Successfully Challenges Third Party Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction

In Fitzgerald v. Wal-Mart Stores East, LP,, the United States District Court for the District of Maryland held that it could properly exercise personal jurisdiction over an out-of-state third-party defendant who maintained a business address, a registered agent, and economic activities within the “100-mile bulge” of the district court.  Accordingly, the court denied the third-party’s motion to dismiss for lack of personal jurisdiction.

The case arose from a slip-and-fall that occurred in a Wal-Mart parking lot in Alexandria, Virginia.  At the time of the alleged incident, Wal-Mart had contracted with USM, Inc. to perform general maintenance for the Alexandria Walmart.  USM., Inc. had sub-contracted its snow removal to MCHI, Inc. d/b/a Snow Patrol (“Snow Patrol”).  RSRM Associate Tara A. Barnes represents both USM, Inc. and Wal-Mart in suit.

The Plaintiff filed suit in Prince George’s County, Maryland against Wal-Mart and USM, Inc. (collectively, “the Defendants”).  After the Defendants removed the case to the United States District Court of Maryland on the basis of diversity jurisdiction, USM, Inc. impleaded Snow Patrol as a third-party defendant pursuant to Federal Rule of Civil Procedure (“Rule”) 14.  Snow Patrol thereafter filed a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. 

In their motion, Snow Patrol argued that the federal court, applying the Maryland state long arm statute, could not properly assert personal jurisdiction because Snow Patrol had no ties to Maryland.  USM, Inc., represented by Tara Barnes, opposed Snow Patrol’s motion, arguing that Rule 4(k)(1)(B) expressly provided jurisdiction over those parties who were impleaded by Rule 14 and served within the “100-mile” bulge of the federal court.

The United States District Court of Maryland agreed with USM, Inc., finding that Snow Patrol established the requisite sufficient minimum contacts within the bulge area to satisfy due process.  The court pointed to the fact that Snow Patrol’s business was in Fairfax, Virginia, its registered agent was located in Broad Run, Virginia, and that the location of the accident where Snow Patrol was doing business was located in Alexandria, Virginia; all of these locations were within a 100-mile radius of the federal courthouses in Baltimore and Greenbelt.  Accordingly, Snow Patrol’s motion was denied.

The decision of the United States District Court of Maryland in this case reflects its commitment to apply Rule 4(k)(1)(B) in a manner that does not limit the court’s reach of personal jurisdiction.  So long as this rule is applied accordingly, this will assure that claims against out-of-state third-party defendants in federal courts can be maintained without fear of the third-party defendant being dismissed for personal jurisdiction.

Subject Matter Jurisdiction Questioned by the U.S. District Court for the District of Maryland

In Larson v. Abbot Laboratories, et. al., Judge Hollander of the United States District Court for the District of Maryland remanded the case to the Circuit Court of Baltimore City.  The court’s decision was predicated on the fact that the case lacked subject matter jurisdiction despite the defendants’ arguments that federal question jurisdiction and diversity jurisdiction existed.

The controversy arose in January 2010 when Kraig Larson (“Mr. Larson”) was prescribed HUMIRA despite the fact that he was HIV positive, a fact that was known by his doctors.  Three months later, Mr. Larson became critically ill, suffered permanent brain damage, and now requires 24-hour living assistance.

In October 2011, Karen Larson (“Ms. Larson”), acting as guardian for her brother, filed suit for negligence, malpractice, and lack of informed consent in the Circuit Court of Baltimore City against her brother’s doctors and health care providers (collectively “the Medical Defendants”).  In November 2012, the parties filed a joint stipulation without dismissal.  Ms. Larson subsequently refiled the suit in January 2013 against the Medical Defendants, and added HUMIRA’s manufacturer, Abbot Laboratories, Inc. (“Abbot”), and the agency that marketed HUMIRA, Harrison & Star (“H&S”).  In her claims against Abbot and H&S (collectively, the “Pharmaceutical Defendants”), Ms. Larson alleged strict liability failure to warn, negligent failure to warn, breach of implied warranties, common law misrepresentation, and violations of Maryland's Consumer Protection Act.  Thereafter, Abbot filed a Notice of Removal to the United States District Court of Maryland, claiming that subject matter jurisdiction existed on the basis of federal question jurisdiction and diversity jurisdiction.

The court first evaluated whether federal question jurisdiction existed.  The court noted that federal jurisdiction over state claims may exist when a federal issue is necessarily raised, actually disputed, substantial, and capable of resolution in federal court without disrupting federal-state balance.  The Pharmaceutical Defendants claimed that determining whether its labels were inadequate raised a substantial federal issue because clinical testing and drug labeling are heavily regulated by federal law.  To the contrary, Mr. Larson opined that her complaint did not allege any violations of federal law, or require proof of any federal element. 

The court agreed with Ms. Larson, finding that the complaint did not raise any question regarding compliance with federal regulations, challenge any federal regulations, allege that the Pharmaceutical Defendants’ clinical testing was contrary to federal law, or allege that the information disseminated by the Pharmaceutical Defendants violated federal drug labeling requirements.  The court further stated that, even if Ms. Larson’s claims necessarily raised an issue of federal law, the Pharmaceutical Defendants could not show that the issue was actually disputed.  As such, the court held that federal question jurisdiction did not exist for purposes of satisfying federal subject matter jurisdiction.

The court then analyzed whether subject matter jurisdiction could be satisfied on the basis of diversity of citizenship, which requires complete diversity between the plaintiff and each defendant.  Although diversity existed between Ms. Larson and the Pharmaceutical Defendants, Ms. Larson and most of the Medical Defendants were Maryland residents.  The Pharmaceutical Defendants argued, therefore, that they were fraudulently misjoined (i.e. that Ms. Larson filed meritorious claims against defendants for the sole purpose of defeating diversity and removal).  The court stated that fraudulent misjoinder was inapplicable to this case because the original suit was against the non-diverse Medical Defendants, and that joining the diverse Pharmaceutical Defendants could not be seen as an attempt to avoid a federal forum when it actually created that possibility in the first place.  The court also denied the Pharmaceutical Defendants’ request to sever the Medical Defendants, finding that all parties had been properly joined and that doing so would undermine the purpose of the liberal joinder rules.  The court, therefore, found that diversity of citizenship did not exist.

After finding the no basis for the Pharmaceutical Defendants to assert subject matter jurisdiction, the court, accordingly, remanded the case to the Circuit Court for Baltimore City.

Thursday, December 12, 2013

Four RSRM attorneys featured in Maryland "Super Lawyers"

          Four attorneys from RSRM have been selected for inclusion in the Maryland "Super Lawyers" 2014 issue, which is available now.

          James O'Meara, the Firm's Managing Partner, was selected as a Super Lawyer in the area of civil litigation defense for the third consecutive year. Partner, Paul Donoghue, was selected as a Super Lawyer in the area of workers' compensation defense for the second consecutive year. Partner, Andrew Nichols, was selected as a Rising Star in the area of general litigation for the third consecutive year. Additionally, Associate  Derrick Dye was selected as a Rising Star in the area of personal injury defense for the second consecutive year. 

          Super Lawyers selects attorneys using a rigorous, multi-phase process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. Approximately five percent (5%) of nominees are selected as "Super Lawyers" and approximately two-and-a-half percent (2.5%) of nominees are selected as "Rising Stars."

Friday, December 6, 2013

The Collateral Source Doctrine Does Not Apply to Medical Bills in Excess of Payments Made by Medicare and Medicaid

Judge Cordero of the Superior Court of the District of Columbia, in Jadine Acker v. Specialty Hospital of Washington-Hadley, LLC, No. 2018, granted Defendant Specialty Hospital of Washington-Hadley, LLC.’s Motion In Limine.  The Defendant’s Motion in Limine successfully sought to exclude evidence of medical bills not covered by Medicare and/or Medicaid payments. 

The Plaintiff, Jadine Acker, a Medicare and Medicaid recipient, allegedly fractured her hip when she fell from her hospital bed while in the care of Defendant.  Following this incident, Plaintiff sued for medical malpractice.  Medicare and Medicaid paid for $191,734.39 of the total $581,662.09 in resulting medical bills.

The Defendant argued that the amount of medical bills not paid by Medicare and/or Medicaid were not owed to Plaintiff, and, therefore, evidence of those bills should not be permitted because it would result in the Plaintiff receiving a “windfall.”  The Plaintiff contended that the Defendant’s argument violated the collateral source doctrine.  The collateral source doctrine if applicable would prevent the Defendant from being able to reduce its liability by any amounts received by the Plaintiff from a source collateral to or independent from the Defendant, such as Medicare and/or Medicaid. 

In his July 19, 2013 Order, Judge Codero determined that here “the application of the collateral source rule would . . . result in a double payment by the alleged tortfeasor.”  Judge Codero noted that the reduced payments were made as part of a contractual relationship under which the Defendant was obligated to accept from Medicare and Medicaid set rates for its services and write-off any excess.   

The Court concluded that the collateral source rule did not apply, and, therefore, only evidence of “amounts actually paid by Medicare/Medicaid” were admissible, thus any amounts in excess of the amount paid by Medicare/Medicaid cannot be introduced as evidence at the trial set for April 7, 2014.