Wednesday, March 27, 2013

Two Defense Verdicts for Associate Danielle Williamson

Associate Danielle Williamson secured two back to back defense verdicts in the District Court.

The first case involved a typical word versus word left turn dispute.  The Plaintiff filed suit against the Defendant alleging that Defendant came into his lane of travel.  Trial took place in the District Court of Maryland for Baltimore County before Judge Leo Ryan.  Judge Ryan, noting that the case hinged more on factual issues, ruled in favor of the Defendant.  He held that it was more likely that the Defendant’s version of events occurred.  

The second case involved a pedestrian in the crosswalk.  The Plaintiff alleged that as she was crossing an intersection at the crosswalk, Defendant struck the Plaintiff as Defendant attempted to execute a right turn.  Plaintiff filed suit and trial took place in the District Court of Maryland for Harford County before Judge Viktor K. Butanis.  Ms. Williamson successfully showed several inconsistencies in the Plaintiff's testimony and also directed the Court’s attention toward Plaintiff’s questionable medical treatment.  Judge Butanis held that Plaintiff had not met her burden of proof and ruled in favor of the Defendant.

Changes to the Medicare Secondary Payer Act

President Obama signed into law changes to the Medicare Secondary Payer Act. The laws change the reporting requirements for settlements and judgments with Medicare and Medicaid beneficiaries, and the process for requesting demand letters from the Center for Medicare and Medicaid Services ("CMS"). The timeline for the changes includes:

Section 201: Effective nine months after the after the deadline by which CMS must promulgate final regulations to carry out the legislation. This section applies to both workers' compensation and liability claims. It set out a process by which parties may request a demand letter from Medicare that is good for a period of time before disposition of the case. CMS must be provided notice within 120 days of and expected or reasonably expected settlement date, and that the expected date. CMS has 65 days to produce a demand letter, but can extend this timeframe by an additional 30 days. Parties may then retrieve the demand information from the CMS website and rely on it so long as the settlement occurs within 120 days of notice and 3 days from the last download of the website. There is also a dispute process in Section 201. If a dispute is raised the Secretary’s determination is final and not subject to appeal. The procedure outlined in Section 201 is an alternative, and does not replace that procedure currently in place. Lastly, Section 201 grants a new right to the insurance carrier to appeal without the consent of the Medicare beneficiary, only if notice is given to the Medicare beneficiary.

Section 202: Effective 1/1/2014. This section applies to liability claims excluding ingestion, implantation, and exposure cases. It provides that there is no obligation to repay Medicare under 42 U.S.C. § 1395y(b)(2)(B)(ii) or to report under 42 U.S.C. § 1395y(b)(8) if a claim falls below the annual threshold as set by the Secretary of Health and Human Services. The threshold for a given year shall be published by the Secretary by November 15 of the previous year. CMS must report to Congress on thresholds for workers’ compensation and no fault cases.

Section 203: This section amends the Mandatory Insurance Reporting law. It changes the civil penalty amount of $1,000 for each day of non-compliance concerning a given claimant by adding the language “up to.”  This additional language gives Medicare discretion. This section also requires Medicare within 60 days of enactment, to solicit proposals for safe harbor situations, and propose final safe harbor regulations for good faith efforts when a Medicare beneficiary cannot be identified.

Section 204: Effective 18 months after enactment, but the Secretary may apply to Congress for a 12-month extension. This section amends the Mandatory Insurance Reporting law. It allows insurance companies responsible for electronic reporting to report without requiring the use of a Medicare beneficiary’s social security number or Health Care Identification Claim Number. This applies to all claims subject to Mandatory Insurance Reporting. The change provides an alternative so that insurance carriers do not have the burden of protecting certain sensitive information.

Section 205: Effective six months after enactment. This section applies to all workers’ compensation, liability, and no fault claims. This section amends actions brought by the U.S. pursuant to 42 U.S.C. §1395y(b)(2)(B)(iii) and limits actions to enforce reimbursement claims and penalties to three years from the Mandatory Insurance Report of a settlement, judgment, award or other payment. This section creates a clear standard, but to trigger protection, the claim must be electronically reported under 42 U.S.C. §1395y(b)(8).


Thursday, March 21, 2013

Defense Verdict in Lead Paint Poisoning Case in Baltimore City

RSRM Partner Dennis Whelley was co-counsel with Tom Ryan in a 10 day lead paint poisoning trial in the Circuit Court for Baltimore City.  The Plaintiff claimed nearly two million dollars in damages.   After three hours of deliberation, the Jury agreed with the arguments of the Defense and returned a defense verdict.  They found the Defendants' conduct was not a substantial factor in causing any injury to the Plaintiff.   

Tuesday, March 19, 2013

Out With The Old Prominent Maryland Standard of “Substantial Contributing Factor” and in with the Newly Adopted Standard “Sufficient to Have Caused the Harm” in Virgina’s Supreme Court.

Recently, Virginia Supreme Court, in Ford Motor Co. v. Boomer, adopted the causation standard “sufficient to have caused the harm” of the Restatement (Third) of Torts, and rejected Maryland’s standard of causation of “substantial contributing factor.” The Court held that in concurring causation cases “sufficient to have caused” standard is the proper way to define the cause-in-fact element of proximate cause to show negligence.

This case was concerning the alleged wrongful death of James D. Lokey who had been exposed to asbestos while working as a state trooper. For about eight years the decedent’s duties were to supervise and observe vehicle inspections particularly at the Ford dealership, where mechanics used compressed air to blow out brake debris. Mr. Lokey could not identify the type of break linings that were inspected, but his estate presented circumstantial evidence that Bendix was most likely the manufacturer of the break linings. Mr. Lokey also worked at the Norfolk Naval Shipyard for over a year in the early 1940, but had no personal knowledge whether he had been exposed to asbestos in the shipyard.

The Plaintiff’s expert testified that “the exposure to the dust from the break lining in new cars were both “substantial contributing factors” to Mr. Lokey’s mesothelioma. The Defendant’s expert conversely testified that people who work around asbestos- containing break are at no higher risk of developing mesothelioma than those who are don’t. Further the Defendant’s expert presented evidence of increased risk of mesothelioma for those who worked around shipyards directly or in the vicinity with asbestos material. The Defense also has pathologist Dr. Victor Roggloting that testify that Lokey’s case of mesothelioma was more consistent with a person who had exposure to amosite asbestos on a shipyard sixty years ago than the chrysolite brake products.

The trial judge gave the jury an instruction on negligence and breach of warranty, and the jury found in favor of Mr. Lokey awarding the plaintiff $282,685.69. The Defendant appealed arguing on the grounds that inter alia the lower court erred in its jury instruction as to causation. The Virginia Supreme Court agreed with the defendant, noting that the “substantial contributing factor” instruction was “prominent” in other jurisdictions such as Maryland. The Court found that the prominent standard caused several problems and had the potential to confuse the jury. The Court adopted the new standard of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010) and held that the trial court erred in failing to sustain the Defendant’s objection to the “substantial contributing factor” and remanded the case.

Baltimore County Jury Returns Defense Verdict

RSRM partner, Andy Nichols recently defended a case involving disputed liability and damages in the Circuit Court for Baltimore County.  Through careful cross-examination and witness testimony, the defense was able to highlight inconsistencies in the testimony of the plaintiff and her independent witness.  After 30 minutes of deliberation, the jury returned a verdict in favor of the defendant and found that plaintiff failed to prove the defendant acted negligently.  

Monday, March 4, 2013

Admitting Liability to Exclude Evidence

The Court of Special Appeals affirmed its holding in Hendrix last week in a reported opinion in Alban et ux., v. Fiels.  This case was tried, brief and argued by RSRM partner, Andy Nichols.  

The underlying accident occurred on June 11, 2009.  Defendant failed to stay in his lane and as a result, struck the Plaintiffs' vehicle.  Mr. Fiels did not stop immediately after the accident and continued driving.  He later drove back through the accident scene and pulled into a shopping plaza approximately a mile from the accident scene.  

In their Complaint, Plaintiffs sought compensatory damages for negligence as well as "intentional acts of outrage." Defendant filed a motion to dismiss or for partial summary judgment as to Plaintiffs' cause of action for "intentional acts of outrage."  The Circuit Court for Baltimore County granted Defendant's Motion.  Once the Motion was granted, Defendant stipulated as to his negligence and moved to exclude any evidence regarding his alleged conduct after the accident.  Mr. Nichols argued that the evidence was irrelevant in light of the stipulation at to Defendant's negligence, and that in the alternative, assuming the evidence was relevant, its probative value was outweighed by its prejudicial impact.  

After arguments by both attorneys, during which time Plaintiffs' counsel proffered that witnesses at the scene would testify that the Defendant was laughing as he drove back through the accident scene, the Court ruled that evidence of the Defendant's alleged post-accident conduct was irrelevant and inadmissible.  Plaintiffs' counsel also proffered that the witnesses informed Mrs. Alban of this fact, while she was trapped in her vehicle.  

The primary injury Mrs. Alban alleged she suffered was post-traumatic stress disorder.  Her contention was that the excluded evidence was relevant to her claim of mental and emotional injuries.  The Court of Special Appeals very recently dealt with a factually similar case in Hendrix, wherein the Court ruled such evidence was irrelevant.  Plaintiffs attempted to distinguish Hendrix by pointing out that Mrs. Alban was still trapped in the vehicle at the time she was told of Defendant's alleged conduct.  The Court of Special Appeals stated that this "is a factual distinction without a legal difference" and affirmed the Circuit Court's rulings. 

While stipulating liability is not always appropriate, the option should be reviewed as a strategic maneuver when there is a need to prevent potentially damaging evidence from reaching the jury.