Friday, July 29, 2022

Cosa Makes Clear That “Definite Proof” In WCC Hernia Claims Refer To The Quality Of Evidence And Not A Heightened Standard Of Proof

    The Court of Special Appeals (“COSA”) recently issued a reported opinion discussing the “definite proof” requirement found in Section 9-504 of the Maryland Labor and Employment Article. Section 9-504 of the Maryland Labor and Employment Article requires an employer to provide compensation to a covered employee for a hernia arising in the course of employment if the employee provides “definite proof” that satisfies the Workers’ Compensation Commission (“WCC”) that: (1) the hernia did not exist before or as a result of injury or strain a preexisting hernia has become so aggravated, incarcerated, or strangulated that an immediate operation is needed, and (2) notwithstanding any other provision of the title about notice, the injury is reported to the employer within forty-five (45) days of the occurrence.

    This case arose in September 2019 when a UPS employee sustained a hernia injury while working in the course of his employment. The employee notified UPS of the injury the following day, and over the following months, the employee met with doctors and eventually had surgery to repair the hernia in November 2019. In February 2020, a hearing was held before the WCC, after which the WCC found the employee sustained an accidental injury arising out of the course of employment, the disability of the employee’s hernia is the result of the accident injury, and the employee was temporarily totally disabled from September 2019 to January 2020. As a result, UPS and its insurer had to pay causally related medical expenses and weekly pay. UPS and the insurer subsequently appealed the WCC decision to the Circuit Court for Howard County, where an “on-the-record” hearing was held in August 2020. The circuit court affirmed the WCC decision. UPS and insurer thereafter appealed to the Court of Special Appeals, where they argued, among other things, that the WCC and circuit court erred in applying a preponderance of the evidence standard to the “definite proof” requirement in § 9-504.

    COSA began its analysis with the plain language of the statute. Finding that the statute does not expressly or implicitly equate “definite proof” with any standard of proof, it reasoned that if the Maryland Legislature had wanted a heightened standard, it would have done so expressly. COSA then proceeded into Maryland case law on the issue and found that the Court of Appeals never made reference to any new or stricter standard, but rather its analyses in the cases focused on the lack of certainty in the proof provided. Last, COSA looked to neighboring jurisdictions with similar statutes and found that, similar to Maryland, these jurisdiction’s case law never equated “definite proof” to a higher standard of proof. Based on its entire review, COSA held that the language of the statute is clear and that the term “definite proof” refers to the quality of evidence and does not constitute a standard of proof.

    While this case makes clear there is no heightened standard similar to that of a clear and convincing standard, it should put practitioners on notice of the need to have clear and credible evidence that can sufficiently satisfy Section 9-504’s requirements.

                    --Bryan P. Cleary, Associate

Monday, July 25, 2022

Congratulations to Associate Logan Hayes on her recent trial win in the District Court for Prince George’s County!

Ms. Hayes successfully defended an aquarium tank company in a product liability case. Plaintiff alleged that his 500-gallon aquarium tank had developed a leak due to a product defect, resulting in damage to his home. At trial, after Plaintiff rested his case, Ms. Hayes moved for judgment in favor of her client. Using applicable case law and relevant statutes, she argued that Plaintiff failed to prove his claims of breach of implied warranty of merchantability, breach of implied warranty for fitness for a particular purpose, and negligence. The court agreed, finding that Plaintiff had not met his burden in proving any of his claims, and entered a judgment in Ms. Hayes’ client’s favor.

Congratulations to Ms. Hayes on this outcome!

Monday, July 11, 2022

The Supreme Court’s Prescription for the United States: Implications of Ruan v. United States

         Amongst the recent release of controversial opinions, the Supreme Court issued an opinion that opioid “pill mill” doctors cannot be convicted under the Controlled Substances Act (“CSA”) without a finding of subjective mens rea. The CSA makes it unlawful for any person “knowingly or intentionally…to manufacture, distribute, or dispense…a controlled substance.” Registered doctors, however, a permitted to dispense controlled substances via prescription, so long as the prescription is “issued for a legitimate medical purpose…acting in the usual course of his/her professional practice.”

        Petitioners Dr. Xiulu Ruan and Dr. Shakeel Kahn were both individually indicted and convicted of violating 21 U.S.C. § 841, also known as the CSA. Dr. Ruan was accused of improperly issuing more than 300,000 prescriptions for controlled substances over a four-year period, being a top prescriber in the nation for a type of fentanyl, and linking his prescribing practices to his own financial interests. On the other hand, Dr. Kahn was accused of selling controlled substances in exchange for cash without performing any physical or legitimate exam. While both physicians appear to have violated the CSA, the Supreme Court was tasked with reviewing the physician’s state of mind in their unlawful prescribing practices.

        The government argued heavily for an objective mens rea standard, stating that the statute’s “knowingly or intentionally” language contains an implicit “objectively reasonable good-faith effort” or “object honest-effort standard.” The Court rejected this argument and held that in order to convict a doctor for violating § 841, the government must prove beyond a reasonable doubt that the defendant knew that they were acting in an unauthorized manner or intended to do so. Had the Court sided with the government, a defendant’s criminal liability would turn on the mental state of a hypothetical “reasonable” doctor, rather than on the mental state of the actual defendant.

        With this decision, pill mill doctors are not off the hook, but rather, charged physicians face higher scrutiny from jurors when brought to court. Considering the lengthy sentences that follow a violation of the CSA, the clarification of the appropriate standard is critical to the proper prosecution of such violations and administration of justice. However, the objective hypothetical of a “reasonable” person makes frequent appearances in criminal law. In cases where a defendant is charged with involuntary manslaughter, negligent homicide, or assault, the defendant’s criminal liability rests heavily on an objective standard that the Supreme Court has now taken a step away from. The Supreme Court’s decision may influence how defense attorneys argue their client’s mens rea in crimes where reasonableness is the standard. If these newly founded arguments succeed, the stability of criminal definitions and statutory elements may be in jeopardy. While all nine justices considered the policy reasons behind implementing a subjective mens rea standard, their limited focus to CSA violations may prove disruptive to the entire criminal legal field.  

-- Faith Zellman, Law Clerk

Thursday, June 30, 2022

Congratulations to Partner Rod Barnes on his Recent Win!

A 70-year-old grandmother from Florida was in Maryland Christmas shopping with her granddaughters two days before Christmas at a local shopping mall.  While still shopping with her granddaughters, the store closed for the night.  As the grandmother and her granddaughters were leaving the store, she claimed that the steel overhead security gate suddenly and without warning dropped from the ceiling six feet overhead and struck her on the crown of her head.  The Grandmother filed suit against the mall and the retail store claiming that the gate was defective and dangerous to store patrons.  She claimed to have suffered a traumatic brain injury which left her with cognitive deficits and persistent headaches.  She also claimed to have suffered cervical spine injuries which required her to receive numerous nerve block injections and ultimately a cervical spine fusion.  Plaintiff claimed medical expenses in excess of $169,000.00 and pain and suffering in excess of $900,000.00.

At trial, Mr. Barnes successfully argued that the Plaintiff’s medical expert was unqualified to testify about the fairness and reasonableness of the Plaintiff’s medical bills, all of which were from out-of-state healthcare providers.  The Court agreed that the Plaintiff’s expert who was a local Maryland physician did not demonstrate sufficient familiarity or knowledge about the billing practices in Florida or Texas to enable him to testify about their reasonableness.  Thus, all the Plaintiff’s medical bills were excluded from evidence. The Plaintiff then proceeded with a reptilian theory of damages.

Mr. Barnes carefully cross-examined the septuagenarian about her extensive medical problems that pre-existed the alleged Mall incident.  He also highlighted her varying accounts of how the incident happened that she shared with her dozens of healthcare providers – including that she accidentally walked into the gate as it was partially lowered at closing time.  Plaintiff called 5 additional witnesses, all of whom were family members.  None of her witnesses saw the alleged incident so there was minimal cross-examination.

During his closing argument, Mr. Barnes highlighted the fact that the Plaintiff never called an expert witness who testified that there was a problem with the security gate.  Plaintiff didn’t describe the gate, didn’t introduce a picture of the gate, didn’t explain how the gate worked, didn’t identify what part of the gate failed, and had no evidence that this type of incident ever occurred before the subject incident, or in the 5 years since.

The Jury deliberated for 3 hours before returning a unanimous defense verdict.

Congratulations to Mr. Barnes on this outcome!

Tuesday, June 21, 2022

Congratulations to Partner Benjamin Beasley on his recent trial win in the Circuit Court for Baltimore City!

Mr. Beasley represented an individual who made a left turn on a yellow arrow turn signal and collided with an oncoming motorist’s vehicle that had a green light.  Relying on provisions in the Transportation Article and applicable case law, Mr. Beasley argued that his client was not negligent as his client had the right to clear her passage across the intersection.  The court agreed, finding Mr. Beasley’s client was not negligent and entering judgment in Mr. Beasley’s client’s favor.


Congratulation to Mr. Beasley on this outcome!

The Workers’ Compensation Commission gained Authority to Order a Complete Reimbursement of all Independent Medical Examination No-Show Fees.


    COMAR was recently amended to allow the Maryland Workers’ Compensation Commission (“WCC”) to order claimants to pay reasonable expenses and costs actually incurred with missed independent medical examinations (“IME”). .  The prior regulation only permitted the Commission to award employer/insurers reimbursements up to $125.00 per missed IME.  This is now a huge victory for employer/insurers, as the cost of missed IMEs were often far greater than $125.00.  

    Initially, we hoped that with the ability to award larger sums for reimbursement of IME no-show fees, employers/insurers would suffer fewer financial losses, and claimants would be deterred from missing IME appointments.  

    Unfortunately, since the passing of this revised regulation, the WCC has still often declined to award full reimbursement of IME no-show fees.  Rather, the Commission relied on a trusted doctor to survey various medical practitioners throughout Maryland and to calculate an average no-show fee.  According to this doctor, the average no-show fee in Maryland was approximately $350.00.  Since this determination, the trend from the Commission is to award no more than $350.00 per missed appointment.  Unfortunately, this amount is significantly less than many of the invoices received for IME no-show fees. 

    Still, it is important to file issues for reimbursement of IME no-show fees, in order to ensure claimants understand the financial implications of missing medical appointments.  In order to successfully prevail on issues for reimbursement of IME no-show fees, it is imperative that the employer/insurer’s attorney receive the following documents:

        1.  The letter sent to claimant and their attorney advising them of the independent medical                                        examination appointment.

        2.  The invoice from the independent medical examination provider with the no-show fee.

        3.  The check issued by the employer/insurer for the costs of the no-show fee.

    It is vital that the letter sent to claimant and their attorney is sent to the correct addresses.  For extra security, the letter should also be emailed to claimant’s attorney with a request for a read receipt.  If claimant can prove that they did not receive notice of the IME, the employer/insurer is unlikely to receive reimbursement.  Similarly, it is important that IMEs are scheduled well in advance, and that notice of the IME is provided to claimant as soon as possible, in order to allow time for the claimant to make any necessary arrangements to attend the appointment.  

    If you have any questions on how to pursue issues for reimbursement of IME no-show fees, do not hesitate to contact RSRM’s Workers’ Compensation Department, consisting of Partner Paul Donoghue, Partner Alicyn Campbell, and Associate Ashley Bond.

                -- Ashley Bond, Associate

Monday, June 6, 2022

Maryland Court Echoes Jurisdictions Across the Country, Over the Interpretation of Business Interruption Coverage, as it relates to Covid-19.

GPL Enterprise, LLC v. Certain Underwriters at Lloyd’s, et al., No. 302, Sept. Term 2021. Opinion by Arthur, J.

    In a recently reported opinion issued by the Court of Special Appeals of Maryland, a three-judge panel concluded that a commercial property insurance policy designed to cover “direct physical loss or damage to” property does not apply to the lost revenue of a restaurant, which was forced to shut its doors during the pandemic.

    The underlying dispute, in this case, arose from an insurance claim made by GPL Enterprise, LLC (hereinafter "GPL"), which operates a restaurant called The Anchor Bar. Two weeks after Governor Larry Hogan issued an emergency order closing all Maryland restaurants and bars, GPL filed a claim with their insurance company. GPL's claim sought coverage for direct physical harm, loss, or damage to their premises, which they claim resulted from Covid -19 and Governor Hogan’s emergency order. The insurance carrier denied GPL’s claim, presumably citing an absence of “direct physical loss of or damage to” the property itself, as a pre-condition for coverage.

    As a result, GPL filed a two-count complaint in the Circuit Court for Frederick County alleging breach of contract and requesting the Court declare the parties’ rights under the policy. The insurance providers prevailed on a motion to dismiss at a hearing on April 27th. GPL appealed that decision.

    The policy in question is a commercial property insurance policy. The primary purpose of which is to protect the property that the insured uses in its business “against direct physical loss or damage as a result of fire, vandalism, meteor strike, etc.” In addition, the policy included business interruption coverage for the loss of income and additional expenses incurred from the direct loss or damage. The meaning of “direct physical loss of or damage to” property is the central issue in this case. As the court sought to answer, whether the Governor’s order or the Covid-19 virus resulted in direct physical loss of or damage to GPL’s property.

    No Maryland appellate court had decided this issue. However, numerous other courts around the country had ruled on similar issues, which the Court of Special Appeals deemed virtually identical to GPL’s claim. The Court of Special Appeals cited numerous cases that determined that language, which is practically identical to that of GPL’s insurance policy, was unambiguous. The Court pointed to the inclusion of the term “physical” as a clear indicator that some form of a material alteration to the property must be present for the insurance claim to be viable.

    The Court noted that, unlike a fire or meteor strike, the Governor’s order had no tangible or physical impact on GPL’s restaurant or the property inside it. As a result, the pre-condition that GPL show a  “direct physical loss of or damage to” the business, which was needed in order to obtain business-interruption coverage, had not been satisfied. This opinion shows how courts in Maryland have fallen in line with other jurisdictions across the country as insurance providers and businesses attempt to establish new boundaries in the wake of COVID-19.

            -- Scott Mitchell, Law Clerk