Monday, December 14, 2015

Maryland Law Now Requires Early Disclosure

On May 30, 2015, the Maryland General Assembly voted to enact a bill that has a significant impact on an Insurer’s requirement to disclose policy limits in the pre-litigation phase of a case.

Senate Bill 146, which went into effect on October 1, 2015, repeals certain prior requirements before policy limits may be disclosed pre-litigation.  Previously, a claimant was able to obtain documentation of a tortfeasor’s policy limits only after providing in writing: the date of the accident; name and last known address of the alleged tortfeasor; a copy of the vehicle accident report, if available; the insurer’s claim number, if available; health care bills and documentation of the claimant’s loss of income resulting from the vehicle accident, and treatment records for the claimant’s injuries caused by the accident.  The applicable limits of coverage was then disclosed if the amount of the health care bills and loss of income documented by the claimant was at least $12,500.00. Under the prior regulations, claimants were often forced to file suit and obtain policy limits information during the discovery phase of proceedings.

Under the new law, a claimant may obtain documentation of policy limits by simply providing: the date of the accident; the name and last known address of the alleged tortfeasor; a copy of the accident report if available; and the insurer’s claim number, if available.  There is no longer a requirement to provide copies of health care bills, treatment records, or documentation of loss of income.  Further, the damages threshold of $12,500.00 has been removed.  As such, expect that there will be a substantial increase in requests for policy limits, perhaps even included in an initial notice of representation.

Please contact an attorney at RSR&M if you have questions about this law or how it applies to your claim handling.

Contributed by Tara A. Barnes

Wednesday, December 2, 2015

RSRM Attorneys Feature in Maryland "Super Lawyers" Once Again

It is with great pride that RSRM announces four attorneys have been selected for repeat inclusion in the 2016 Maryland “Super Lawyers” Issue.

Partner Paul Donoghue was selected as a Super Lawyer in the area of workers' compensation defense for the fourth consecutive year. Partner Andrew Nichols was selected as a Super Lawyer in the area of general litigation for the fifth consecutive year. Associate Jessica Butkera was selected as a Rising Star for the fourth consecutive year and Associate Tara Barnes was selected as a Rising Star for the second consecutive year, both in the area of general litigation.

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."

Congratulations to our Super Lawyers!

Thursday, October 1, 2015

New Laws Effective October 1

Today, a number of important new laws go into effect related to driving and vehicles.  At RSRM, familiarity with the law is a must for our attorneys so that we can effectively and efficiently represent our clients. Below is a brief summary of several of the new laws and their effect on Maryland drivers:

Increased Maximum Speed Limit on Highways: State highway officials will be able to increase the State’s speed limit from 65 to 70 miles per hour on some specific highways.

Yellow Alert System: The Maryland State Police will be required to develop an alert program to find missing drivers in hit-and-run incidents that result in serious injury.

Prohibition Against Unattended Vehicles: Exceptions have been developed to the old Maryland law which provided that individuals were prohibited from leaving a parked vehicle unattended with the engine running.  As of today, individuals can now do so for up to 5 minutes without facing a $70.00 ticket if: 1) the individual started the key with a keyless remote ignition system; or 2) the car is locked and parked on private property.  Something to look forward to as the cold days of winter lie before us!

RSRM urges its clients to keep these changes in mind and wishes everyone safe driving as we head into the Fall and Winter months!

Tuesday, September 22, 2015

Offer of Judgment

An often underutilized strategic tool is the offer of judgment, which is available in many jurisdictions.  An offer of judgment can be very helpful in facilitating a settlement by giving a plaintiff a reason to reconsider a settlement offer, and it can also be used to recoup litigation costs. 

Essentially, with proper notice, prior to trial, a party defending against a claim may serve upon the plaintiff an offer to allow judgment to be taken against the defending party, usually for a set monetary amount. If, within a certain number of days after the service of the offer of judgment, the plaintiff serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance with the court and the Clerk of the court will enter judgment accordingly. Alternatively, if an offer of judgment is not accepted and the judgment obtained by the plaintiff is not higher than the offer of judgment, the plaintiff can be ordered by the court to pay the “costs” incurred by the defendant after the offer of judgment was made.

Different jurisdictions have various definitions of “costs.”  It may or may not include attorneys’ fees, but usually will include litigations costs (e.g., expert witness fees)As you can imagine, the timing of an offer of judgment is a crucial part of the strategy.  It is best utilized early, often after the close of discovery but before trial preparation begins. 

This tool is available in Maryland only in healthcare malpractice claims; however, it is available in all civil actions in the District of Columbia.

RSRM Associate Attorney Jessica Butkera was recently successful in utilizing an offer of judgment in a civil case in the Superior Court for the District of Columbia.  In this case, Plaintiff failed to accept the $15,000.00 offer made by the Defense.  Ultimately, after a three-day jury trial, the Plaintiff was awarded only a $13,000.00 verdict after her attorney requested a judgment of $100,000.00. Ms. Butkera currently has a Motion for Costs pending before the Court.  These costs include her expert witness fees, which is often a large expense in taking a case to trial.  

For more information on the use of an offer of judgment and the procedure for collecting costs in Superior Court for the District of Columbia, feel free to contact any of RSRM’s attorneys, who regularly handle matters in Washington D.C. Also, be on the lookout for a more detailed article from Ms. Butkera on this very useful procedural tool in our next Newsletter.  

-- Contributed by Partner Andrew T. Nichols

Wednesday, September 9, 2015

Workers’ Compensation: Independent Contractor or Covered Employee?

More and more frequently we are seeing companies use outside contractors to complete certain aspects of their work.  We have certainly seen this in the construction industry for years; however, the move is permeating other business areas, like delivery.  The subjective belief of the parties is not a determinative factor in the Maryland Workers’ Compensation Commission (“WCC”) decision as to whether the injured person is a covered employee and eligible for workers’ compensation (“WC”) benefits.  In other words, even if the claimant testifies or believes he is an independent contractor, it will have no bearing on the legal decision.

The commission looks to certain criteria, developed from the common law standard for determining the master servant relationship.  They are: (1) the power to hire and fire; (2) the payment of wages; (3) the power to discharge; (4) the power to control the conduct of the worker; and (5) whether the work is part of the regular business of the employer.  The decisive test in determining whether there is an employer/employee relationship versus that of an independent contractor (“IC”) is whether the employer has the right to control and direct the employee in the performance of the work and in the manner in which that work is to be done Mackall v. Zayre Corp., 293 Md. 221, 443 A.2d 98 (1982). 

For the most part, items (1)-(3) are easy enough to determine. The control factor is really what the commission will be focusing on at a hearing.  The worker is considered an IC if he or she performs the work according to his or her own means and methods, free from control of his or her employer in all details connected with the performance of the work except as to its product or result.  Considering (5), whether the work is part of the regular business of the employer, is helpful in determining the control factor.  For instance, if the alleged employer is in the business of delivery, chances are that a commissioner will determine that an alleged IC, who is “contracted” to do delivery, is likely under the control of the alleged employer.  While the company may not direct the driving route of the driver, if the driver is told to deliver the package in a certain manner he is under the company’s control.  For instance, the company requires the driver to where certain clothes, have present certain credentials to the recipient of the delivery, or have a GPS system in the vehicle.  

Alternatively, if a delivery company engages someone to prepare a webpage or set up an e-mail system for them, it is likely that the company is not directing or controlling the work and the claimant will be considered an independent contractor. 

Additionally, consider the implications of a finding of an IC relationship.  The main purpose of WC is to shield an employer from negligence from its employees. Would a finding that the injured party is not an employee open the company up to a negligence action?  If the case is in the proper posture, settlement of the contested case may be a great option.  

Contributed by Alicyn C. Campbell

Tuesday, September 1, 2015

RSRM Bids a Fond Farewell to Retiring Legal Assistant Shirley MacDermott

It is with both sadness and great fondness that everyone at RSRM extends warmest wishes to legal assistant Shirley MacDermott for a happy retirement!  After over twenty years with RSRM, today marked Shirley's last day with the firm.  

A celebratory luncheon was held in Shirley's honor to recognize her many contributions over the years.  Without  a doubt, Shirley's dedication, friendliness and willingness to help out wherever and whenever needed made RSRM a better place to work.  

Shirley, though we will miss you, we wish you a happy and relaxing retirement!

Monday, August 24, 2015

No Sanctions for Clear Discovery Violation

Discovery: an inevitable part of the litigation process, and, if left to fester, has the potential to cause bitter contention and discord between parties.  Most often, discovery disputes are resolved by way of simple communication and an agreement to extend professional courtesy among lawyers. However, that is not always the case.  The matter of Osborne v. Mountain Empire Operations, L.L.C., et al., 2015 U.S. Dist. LEXIS 76732 (D. Va. 2015)  sheds light on legally appropriate conduct during the deposition phase of discovery, while reminding us that, despite agreements between counsel, the court ultimately has the final word in motions filed related to discovery disputes.

Osborne began as a routine, diversity jurisdiction personal injury case in the United States District Court in the Western District of Virginia.  Two months following the deposition of Defendant’s corporate designee, Plaintiff filed a motion for sanctions alleging a discovery violation.  As noted in the briefs and arguments on the Motion that followed, Plaintiff argued that the Defendant’s actions while defending the corporate designee’s deposition were in violation of the Rules.  Specifically, the Defendant failed to produce an adequately prepared corporate witness and further frustrated the purpose of the deposition by coaching the witness and directing her not to answer certain questions.  The latter allegation may be viewed as a routine phase during depositions, or at a minimum, staunch advocacy; however, the Plaintiff contended that the direction was without proper cause, thus making it actionable.

The motion was briefed and argued before Judge James Jones.  While the case was under advisement and following mediation before a magistrate judge, the parties announced a settlement of the case, which included an agreement that the Plaintiff will withdraw the pending Motion for Sanctions.  

Not so fast!

While many judges may applaud a resolution to a case and pending discovery dispute, Judge Jones identified his independent obligation to enforce the Federal Rules of Civil Procedure, despite the parties’ agreement.   In short, Judge Jones found that the rules were violated as claimed, but sanctions were not warranted.

Judge Jones outlined two reasons to support his ruling on Defendant’s conduct.  First, the deposition’s purpose was frustrated by the inadequate preparation of Defendant’s corporate designee.  Federal Rule of Civil Procedure 30(b)(6) states that corporate representatives in a deposition must testify about information known or reasonably available to the organization.   The corporate designee did not testify as required.  During her deposition, she responded approximately 163 times that she did not have personal knowledge and could not answer the Plaintiff’s questions.  Defense counsel argued that the witness was supplied by her client, and not chosen independently by her.  Notwithstanding this argument, the Court found that Defense counsel had an independent obligation to make sure that the rules were satisfied by preparing the witness for her deposition.  In this case, such preparation was not satisfied as Defense counsel acknowledged that she instructed the witness not to speak with other important witnesses and to simply review various documents.  This proved to be faulty advice, as the witness did not offer testimony or present in a manner that satisfied the Federal Rules.

Judge Jones found that Defense counsel also violated the rules by instructing the witness not to answer certain questions.  Such instructions are a routine part of any standard deposition, and may be made for various legal reasons, such as when necessary to preserve privilege. However, no viable reason seemed to exist in Osborne.  Judge Jones further described the Defendant’s comments after questions as done in ways that could have suggested answers by the witness.  This is improper.

Judge Jones recognized and formally disapproved of Defendant’s violation of the rules; however, he found that sanctions were not warranted on Defendant or its counsel.  Plaintiff’s delayed filing of the Motion for Sanctions and timing of filing the Motion shortly before trial precluded any effective remedial sanctions.  Further, Plaintiff did not appear to be prejudiced by Defense counsel’s conduct.  As such, Judge Jones denied the Motion for Sanctions.

Judge James Jones provides a great reminder of the importance of proper discovery, preparation and timely Motions practice.   Fortunately, the attorneys at RSR&M recognize the importance of presenting appropriately prepared witnesses for all depositions and will defend depositions only as authorized under the Federal Rules.

Contributed by Tara A. Barnes

Tuesday, July 14, 2015

D.C. Court moves toward Federal Expert Witness Standard

Russell v. Call/D, LLC, 2015 D.C. App. LEXIS 145 (2015).

In Russell v. Call/D, LLC, the District of Columbia Court of Appeals affirmed the trial court’s entry of summary judgment in favor of the owner of an apartment building in an action filed by a resident who had recently contracted Legionaries’ disease.  The Court’s holding focused on the trial court’s decision to exclude the testimony of the Plaintiff’s expert witness because part of it was speculative.

In Russell, resident Plaintiff Craig Russell (“Russell”) sued apartment owner Defendant Call/D, LLC (“Call/D”), alleging that sewage back-ups and standing sewage-contaminated water in the apartment building caused him to contract the disease.  Symptoms of Legionaries’ disease show within two to fourteen days after exposure to Legionella bacteria.  As such, Call/D’s defense was premised on the fact that Russell had traveled to various places during the two weeks before he exhibited the symptoms, and therefore his exposure could have been elsewhere.

At trial, Russell designated Dr. Steven Zimmet, his treating pulmonologist, as an expert who would testify how the disease is contracted, and how Russell contracted it because of his exposure to fumes and smells in the apartment.  Russell did not include a timely expert report or scholarly literature in his designation of Dr. Zimmet.  Consequently, Call/D filed a motion in limine to exclude Dr. Zimmet’s testimony on the ground that his training and experience in treating those with the disease did not mean he was qualified to determine the source of Russell’s exposure.  The trial court granted the motion after finding part of Dr. Zimmet’s testimony to be speculative, and subsequently granted Call/D’s motion for summary judgment.

The Court noted that an expert witness is able to rely solely upon experience when providing an opinion; however, the Court determined that: 

Dr. Zimmet relied on neither experience in investigating the source of a Legionella infection, nor knowledge about what had been determined to be the source of his other Legionaries’ disease patients’ exposures, nor peer-reviewed journal articles, nor data from testing at the apartment building, and he did not utilize a scientific method to conclude that Legionella bacteria were present in the [. . .] apartment building.

Russell, 2015 D.C. App. LEXIS *19.

Furthermore, the Court found that Dr. Zimmet’s basis for his opinion, “[y]ou know it when you see it,” was the classic ipse dixit explanation, which can be properly excluded by a trial court.  Id. at *21.
The Court reasoned that the trial court would have allowed Dr. Zimmet to testify if his opinion was based on scientific literature.  In contrast to Dr. Zimmet, the Court had no problem with the opinions offered by John David Krause, Call/D’s environmental health expert.  Krause’s experience included participation in at least ten investigations involving the disease, and he was able to cite to applicable peer-reviewed scientific literature. 
In affirming the entry of summary judgment, the Court determined that a jury would have no basis other than Dr. Zimmet’s speculation to conclude that the apartment building was the source of Russell’s exposure.  This case is another in a slow trend of moving away from a “let the jury sort it out” mentality by the Court and signals to the parties and potential litigants continued steps toward DC’s adoption of the Federal Daubert-Kumho standard.  In sum, the Court will not allow shorts cuts in expert testimony: there must be a sufficient foundation for each expert opinion to reach a jury. 


Tuesday, June 30, 2015

Maryland Workers’ Compensation Regulations are Unambiguous with regard to Statute of Limitation

The highest court in Maryland, the Court of Appeals of Maryland, recently reversed a decision by the Maryland Workers’ Compensation Commission (“MD WCC”) finding that, as the regulations state, a claim is not considered filed until a paper copy is received by the MD WCC.

The MD WCC is making great strides in advancing the electronic filing system for workers’ compensation claims and a claimant is currently able to file his claim on line; however, regulation states a “claim that is submitted electronically is not considered filed until the signed claims form, including the authorization for disclosure of health information, is received by the Commission.” COMAR

In Hranicka v. Chesapeake Surgical Ltd., et al., 2015 Md. LEXIS 413 (2015), the employer filed an Employer’s First Report of Injury (“SF1”) on January 21, 2010, which was about two weeks after the injury.  Hranicka, the injured worker, filed an electronic claim on January 17, 2012, which would have been within the requisite two year statute of limitations (two years beginning from the date of the SF1). See Md. Code Ann., Lab. & Emp. § 9-709.  As required by the MD WCC regulations, a paper copy of the claims form was then filed with the MD WCC a day after the two year statute of limitations expired.  COMAR

The MD WCC, giving deference to the injured worker, ruled that because the electronic filing was submitted timely, his claim was, thus, considered timely filed.  The Circuit Court of Baltimore City, on appeal from the MD WCC, agreed and also found for the claimant.  The employer sought review of the decision with the Maryland Court of Special Appeals.  In an unreported decision, the intermediate appellate court found in favor of the employer.

The claimant then sought review by the Court of Appeals of Maryland, which granted the petition for writ of certiorari.  The Court ruled that the MD WCC’s regulations were not ambiguous and, therefore, there was no deference owed to the claimant.  The Court stated that the regulations, written by the MD WCC, clearly state the claim is considered filed when the paper claim is received by the MD WCC.  Despite the advances in the electronic filing system and wide acceptance of electronic filing throughout Maryland’s judiciary, the claim was ruled to be filed beyond the statute of limitations because of the lack of timely paper filing. 

The Court made note that this ruling did not preclude the MD WCC from changing its regulations to accommodate a claimant in such a situation, but, as the regulations as they stand, they were quite clear on the filing process and when a claim is deemed “filed”.

In Hranicka, the filing of the SF1, by the employer, was essential.  The regulations require an SF1 to be filed, if an injured worker misses more than three days of work.  If the injured worker does not miss more than three days of work, and an SF1 is not filed, the statute will start on the date of injury.  It is key to coordinate the filing of the SF1 between the employer and the insurer to be sure it is properly and timely filed, causing the statute of limitations to start.  Additionally, every case should be reviewed for timeliness as a matter of course. 

Contributed by Alicyn Campbell

Monday, June 22, 2015

Court of Appeals Weighs In On Interpretation of Policy Limits

         About a year ago, we shared a post on the decision of the Court of Special Appeals in Connors v. Gov’t Emples. Ins. Co., 216 Md. App. 418, 88 A.3d 162 (2014).  Following that decision, the Connors, unhappy with the outcome, petitioned the Court of Appeals for review.  The Court granted certiorari and, in Connors v. Govt' Emples. Ins. Co., 442 Md. 466, 113 A.3d 595 (2015), recently considered the question: “[d]o the underinsured motorist provisions of GEICO’s insurance contract provide [the Connors] a limit of underinsured coverage of $300,000 each, subject to an aggregate payment… by GEICO not to exceed $300,000?”  Id. 

As you may recall, Linda Connors and her husband Robert were pedestrians who were struck by a vehicle.  The motorist who struck the Connors had insurance through Allstate with policy limits of $100,000.00 per person and $300,000.00 per accident. The Connors and Allstate eventually settled for the “per person” policy limit of $100,000.00 each.  The Connors were both “insureds” under a motor vehicle policy issued by GEICO, which provided uninsured and underinsured motorist coverage with policy limits of $300,000.00 per person and $300,000.00 per occurrence.  Following their settlement with Allstate, the Connors sought to recover additional damages from GEICO pursuant to the terms of their underinsured motorist policy. Specifically, they sought, based upon their insurance limits of $300,000.00 per person, to have a total of $400,000.00 in policy money still available to them: $200,000.00 for each person after subtracting, from the $300,000.00 limit, the amount already received. 

On appeal, the Connors argued that, based on the construction and comma usage in the policy, the “per person” liability limits are superior to the “per accident” policy limits, and thus $300,000.00 in coverage should be available to each person without an overall occurrence cap of $300,000.00. GEICO argued, and the Court eventually agreed, that the “per accident” limit incorporates the caps on “per person” recovery while still adhering to the “per accident cap.” In many surrounding jurisdictions, any ambiguities in insurance contracts are construed against the insurer as a matter of course. The Court of Appeals in this case declined to address or change that policy, despite the appellants’ request to do the same, and held that the appellants were capped at the “per accident” limit rather than “per person.”

The Connors also argued that the Court of Appeals should overturn the 177 year policy in Maryland that insurance policy ambiguities are not automatically construed against insurers. The policy of construing ambiguities against the insurer as a matter of course is the policy in neighboring jurisdictions. The Court of Appeals ultimately declined to rule definitively on this issue because the Connors’ only asked the Court to interpret their specific contract rather than asking, in their writ of certiorari, for a review of the current law.  However, in the court’s opinion, it was clearly cited that, under the current law, the Court will only construe an insurance policy against the insurer where parole evidence and other extrinsic evidence is unavailable to construe any ambiguities.

Ultimately, agreeing with the Court of Special Appeals, as well as the trial court below, the Court of Appeals found the policy in question to be unambiguous and ruled that the policy includes an aggregate recovery limit of the per occurrence amount of $300,000.00.

         The Connors ruling is important for insurers in the state of Maryland who write under/uninsured policies. Maryland has in the past, and for the time being, will continue to review ambiguities in insurance policies in their entirety, and will turn to extrinsic evidence to determine intent. This is inapposite to the policies of neighboring jurisdictions that construe ambiguities against the insurer as a matter of course. And the Court’s willingness to mention it could signal intent to change the law if the matter is appealed appropriately in another case.  Additionally, the case establishes explicit precedent finding that multiple claimants are not entitled to “per person” liability limits where the limits would exceed the “per accident” liability limits of a policy. 

Wednesday, June 10, 2015

Court Adopts Authentication Standard for Social Media Evidence

With the increasingly common use of various social media as a means of communication, more and more frequently Courts are faced with the question of whether the genuineness of these postings, text messages and chats is reliable enough to justify them being admitted into evidence, and to what extent they must be authenticated to be deemed admissible.

This spring, the Court of Appeals of Maryland revisited this issue in its review of three consolidated cases: Sublet v. State, 2015 Md. LEXIS 289 (2015), Harris v. State, 440 Md. 114, 99 A.3d 778, decision without published opinion (2014), and Monge-Martinez v. State, 440 Md. 114, 99 A.3d 778, decision without published opinion (2014). 

Problems with Social Media Authentication and Development of a Standard
Before the use of typed words sent via an electronic medium became so prolific, the courts relied on traditional means of authentication such as obtaining testimony from a witness with knowledge of how a document was made, comparing handwriting samples, looking for fingerprints or even, for telephone calls, voice identification.  But when the sender is an unseen person and the message is received electronically, many of these options for authentication disappear. 

The Court of Appeals first recognized this problem with authentication in Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011), noting that the authentication of evidence derived from social networking can be problematic “because anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password[.]”Id. at 352, 19 A.3d 421.  In Griffin, the Court rejected a printout of a screen shot from MySpace, a social media website, because the investigator who printed the document did not have any personal knowledge about who owned the website or who actually created the profile in question.  Essentially, the witness was unable to prove that the page content was genuinely managed by the person he claimed it was managed by, or that she had posted the text within the screenshot.  In Griffin, the Court reiterated that authentication could come through asking the purported creator if she created the profile and the posting in question. Id  at 363, 19 A.3d 427.  The Court also suggested that investigators could “search the computer of the person who allegedly created the profile and posting and examine the computer's internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.” Id.  Alternatively, the investigator could “obtain information directly from the social networking website[,]” which would link together the profile and the entry to the person, or persons, who had created them. Id. at 364, 19 A.3d 428. 

Between 2011 when Griffin was decided and today, cases have arisen across the country where social media evidence has served as a crucial piece of proof in litigation.  In light of this trend and the instant actions, the Court chose to clarify their position and to set forth a more definitive standard for authentication. 

The standard ultimately adopted by the Court for use in these and future cases entails two steps.  In the first step, the judge determines if there is sufficient proof introduced so that a reasonable juror could find in favor of authenticity or identification.  If there is not, the information is not admitted.  If there is, the information will be admitted and then, as the next step, the jury will be instructed that they must make a determination as to whether the evidence is what its proponent claims.  At the same time, the opposing party is free to challenge the evidence in ways that go to its weight, such as arguing the interpretation, reliability or lack of importance of the information.

Applying the New Standard
In each, Sublet, Harris, and Monge-Martinez, the admission of different electronically stored social networking evidence was sought. 

In Sublet, at issue was the admission of Facebook message posts where the witness alleged to have posted not only denied posting the messages in question, but testified that she had shared her password with others who have in the past and could ostensibly, again, use her password to obtain account access.  Additionally, her testimony was not refuted by an expert.  Under the new standard, the content in question was not found to be reliable and was not admitted. 

In Harris, messages were exchanged on Twitter between two parties.  At trial, a police officer testified as an expert witness.  He provided independent verification of the identity of the holder of a Twitter account by using photos, tracking the account to a specific mobile phone, and via the substance of messages exchanged, which indicated direct knowledge of a specific situation that involved only a small group of individuals. The Court held that the trial court did not err in admitting the “direct messages” and “tweets” into evidence.

In Monge-Martinez, private one-on-one communications were sent through Facebook by the defendant apologizing to the victim for stabbing her.  The defendant argued that because his profile did not include identifying information, the messages could not be authenticated.  The Court disagreed, determining that the circumstantial evidence --- namely, that the victim could attest that Monge-Martinez had previously written message to her using that account, that the date and time stamps indicate the messages were sent soon after the stabbing, and that all messages were in Spanish and alluded to the stabbing – was enough to allow the messages into evidence. 

Though the cases examined by the Court of Appeals are all criminal in nature, the decision has sweeping implications for both criminal and civil litigation.  With a clearer and relatively low standard set forth for the admissibility of social media evidence, parties on both sides are now far more likely to seek to have such evidence admitted at trial, with the jury left to determine how much weight such information should hold.  As a result, thorough advisements to our clients about posting online and comprehensive searches for a social media presence of witnesses, plaintiffs and our defendant clients becomes even more important in the preparation of a case for litigation.  

Contributed by Lauren A. Seldomridge

Thursday, May 28, 2015

Maryland Increases Statutory Caps to Help Injured Parties

The Maryland Legislature recently passed two bills that would increase the dollar amount that injured parties can recover from local governments and the State of Maryland in injury suits. The bills, recently approved by Governor Larry Hogan, also increase the amount of time a potential plaintiff has to notify the governmental entity of his injuries. If the injured party misses that window, his suit is currently automatically barred under the present statutes.

House Bill 113 (“HB 113”) increases the amount that can be recovered in tort claims against Local Governments. Currently, if a single person is injured by a local government employee acting within the scope of his or her employment, the maximum recovery is $200,000.00. If multiple parties were injured, the cap on total recovery is $500,000.00. HB113 increases the limits to $400,000.00 and $800,000.00, respectively.   

House Bill 114 (“HB 114”) amends the Maryland Tort Claims Act. The Maryland Tort Claims Act covers the tortious acts or omissions of state employees. If a person is injured by a state employee, his or her recovery is currently limited to $200,000.00. Unlike the Local Government Tort Claim Act, there is no “per incident” limit; any number of plaintiffs can recover up to $200,000.00 for injuries arising out of the same act or omission. HB114 would increase the cap to $400,000.00 per plaintiff injured by a state employee.

As far as the timing requirement for notification, the Local Government Tort Claims Act currently gives injured parties 180 days to give notice of their injuries. If the injured party fails to notify the local government body of his or her injuries, the suit is barred. HB113 extends the notification window to 1 year. The Maryland Tort Claim Act excludes claims where notice was not given within 1 year. HB114 would allow courts the leeway to allow claims after this time period if the plaintiff can show good cause for failure to notify. The burden would then shift to the state government to show that the failure to notify prejudiced their defense.

These bills aim to increase the potential recovery for those bringing suit against Maryland’s state and local governments. Similar to many consumer and commercial insurance policies, the Tort Claim Acts serve as, essentially, “policy limits” in a claim. When these new laws go into effect on October 1, 2015, the amount of liability exposure that Maryland’s governments face will double. 

Monday, May 18, 2015

Jury Awards Significant Sum in St. Mary’s County Auto Tort Case

Last month, a St. Mary’s County Jury awarded $365,000.00 to Plaintiff Sue Cropper for injuries she suffered in a car accident on July 31, 2011.  The Plaintiff, a resident of St. Mary’s County, Maryland, was driving near her home when she was struck by another car.  The Complaint alleged that she suffered a broken sternum and bruised heart.  The jury, comprised of one woman and five men, deliberated for only an hour before returning with its verdict of $330,000.00 for pain and suffering and $35,000.00 for medical expenses. 

While we at RSRM did not participate in this litigation, and do not have first-hand knowledge of this case, the verdict serves as a reminder that, even in historically conservative jurisdictions, juries do sometimes return significant awards if they feel that the Plaintiff has faced significant and legitimate injury.  

Friday, May 8, 2015

Can a hotel be held liable for an assault simply due to location in a high-crime area? U.S. District Court for the District of Columbia says no.

Beckwith v. Interstate Mgmt. Co., L.L.C., 2015 U.S. Dist. LEXIS 25799 (2015). 

            The United States District Court for the District of Columbia recently entered summary judgment in favor of a hotel management company in an action filed by a hotel guest that was assaulted on the premises. The Court’s primary negligence analysis centered on the hotel management company’s duty, including the foreseeability of the assault and the relationship between a hotel and its guest.

            In Beckwith, Plaintiff Connor Beckwith (“Beckwith”) and his family were patrons of the Hamilton Crowne Plaza Hotel (“the hotel”) in Washington, D.C. The hotel was managed by Defendant Interstate Management Company, L.L.C. (“Interstate”), and Interstate’s duties included, but were not limited to, providing security at the hotel. It is important to note from the outset that, based on crime statistics proffered by Beckwith, the hotel is in an area where criminal activity is at a high, with five hundred and forty-two (542) violent crimes and four thousand, one hundred and seventy-one (4,171) property crimes reported from 2007 to 2009 within a half-mile radius of the hotel.

            On June 28, 2009, Beckwith traversed to the lower level of the hotel lobby to utilize the restroom. When he reached the lower level, he encountered Anthony Lopez (“Lopez”) who began a conversation with Beckwith and walked alongside him towards the restroom. As Beckwith proceeded towards the restroom, and once he was in the restroom, Lopez inappropriately touched him without his consent on two (2) separate occasions. Ultimately, Beckwith asked Lopez to leave, and reported the incident to his family, who immediately alerted the hotel’s front desk. The hotel’s security used its numerous security cameras to locate and ultimately arrest Lopez who was dining in the hotel restaurant. Deposition testimony established that the hotel’s security director was the only member of the security staff on duty at the day and time of the incident.

            Beckwith filed a one-count complaint in the United States District Court for the District of Columbia against Interstate, alleging that it was negligent in its maintenance of security at the hotel, and in its response to the assault. Following discovery, Interstate filed a motion for summary judgment on the basis that Beckwith’s evidence was insufficient to establish the elements of a negligence claim.

            The Court applied D.C. tort law, which indicates that when a plaintiff alleges that a defendant negligently failed to prevent a harmful, criminal act by a third party, he or she must prove that the act was so foreseeable that it became the defendant’s duty to guard against it by complying with the applicable standard of care. Clement v. Peoples Drug Store, 634 A.2d 425, 427 (D.C. 1993). D.C. employs a “sliding scale” analysis in these types of cases, involving two (2) elements: (1) the criminal act’s foreseeability; and (2) the degree to which the defendant owes a “greater duty of protection” by nature of his relationship to the plaintiff. Bd. of Trs. v. DiSalvo, 974 A.2d 868, 872 (D.C. 2009) (citing Workman v. United Methodist Comm. on Relief of Gen. Bd. of Global Ministries of the United Methodist Church, 320 F.3d 259, 264 (D.C. Cir. 2003)). If the plaintiff fails to establish a protective or “special” relationship, he or she must make a “heightened showing” of the foreseeability of the criminal act to establish duty. Id. Alternatively, if a special relationship between the parties is proven, plaintiff’s burden to establish foreseeability is lightened, but not eliminated. Id.

            First, the Court found that a special relationship existed between the parties sufficient to lighten Beckwith’s burden to prove foreseeability, and that Interstate had a duty to use reasonable care to protect Beckwith from foreseeable, injurious criminal acts committed by a third party. See Kline v. 1500 Mass. Ave. Apt. Corp., 439 F.2d 477 (D.C. Cir. 1970) (holding that a “greater duty of protection” is owed when an innkeeper-guest relationship is proven due to a plaintiff’s necessary reliance on the hotel’s staff for security).

            Turning next to the foreseeability of Lopez’s actions, the Court examined the evidence, or lack thereof, proffered by Beckwith in support of his claims. Beckwith relied solely on the crime statistics mentioned above to establish that it was foreseeable that an intruder would enter the premises. The Court rejected Beckwith’s argument, stating that to hold as such would be tantamount to holding that any assault in any area with a high crime rate would automatically be foreseeable. The Court also pointed out that Beckwith did not present any evidence to demonstrate that Lopez was actually an intruder in the hotel, and that Lopez’s location upon arrest, in the hotel’s restaurant, suggested otherwise. Lastly, the Court pointed out that the hotel did not have a history of prior sexual assaults.

            As a secondary determination, the Court interestingly concluded that, even if the assault on Beckwith was foreseeable, he had failed to present sufficient evidence to establish the standard of care owed by Interstate. In support of his argument, Beckwith cited to expert testimony from Andre Street, who was presented as an expert on hotel security. The Court deemed Mr. Street’s testimony to be a vague generalization of applicable hotel security standards, and held that Beckwith’s lack of adequate expert testimony on the standard of care was “fatal” to his negligence claim under D.C. law. See Briggs v. Wash. Metro. Area Transit Auth., 481 F.3d 839 (D.C. Cir. 2007) (citation omitted) (stating that lack of evidence sufficient to establish a standard of care is “fatal to a negligence claim”). 

            Beckwith solidifies applicable D.C. premises liability law regarding the requisite evidence for a plaintiff to prove liability on the part of a landowner for the negligent failure to prevent injurious, criminal acts by a third party. One cannot simply rely on the location of the hotel to establish one’s case, and notice is essential, even when a special relationship, and correspondingly heightened duty, is owed. Further, Beckwith highlights the importance of expert testimony in a premises liability action, and demonstrates that mere conjecture on the part of an expert will not suffice to establish the standard of care owed in a premises liability action. The attorneys at RSRM have handled numerous premises liability actions, including the defense of hotels, nightclubs, and large stadiums. 

- Contributed by Catherine A.B. Simanski

Friday, April 17, 2015

Partner Andrew Nichols Obtains Defense Verdict

Partner Andrew T. Nichols recently obtained a defense verdict after a two-day jury trial in the Circuit Court for Harford County.  

Plaintiff, a unit owner of a condominium, slipped and fell on ice the sidewalk in front of a building in the condominium community during the two snow storms that culminated in “Snowmageddon” in 2010.  Plaintiff sued the condominium association, property management company and snow removal contractor, alleging negligence.  Mr. Nichols, representing the condominium association and property management company, presented evidence that while the condominium association had notice of the potential for ice formation in the area where Plaintiff fell, there had been no prior falls in that area, and that Plaintiff had similar notice regarding the potential for ice formation.

After twenty-two minutes of deliberation, the jury returned with a verdict, finding no negligence on the part of the defendants.  Congratulations to Mr. Nichols on his hard work! 

Friday, April 10, 2015

Robinson v. Washington Metropolitan Area Transit Authority, 77 F.3d 33 (2014).

On April 16, 2008, Plaintiff, Darlene Robinson boarded a Washington Metropolitan Area Transit Authority (“WMATA”) bus. As she was walking towards the back of the bus looking for a seat, the bus driver, Ronald Bumpass, began to drive away from the bus stop. Shortly thereafter, the bus approached an intersection and Mr. Bumpass hit the brakes, causing the bus to jerk. As the bus decelerated, Plaintiff lost her grip on a handrail and fell in a twisting motion, breaking her leg.

Plaintiff sued WMATA, Bumpass’ employer, alleging that Bumpass’ negligent operation of the bus caused her injury. At trial, Plaintiff tried to prove Bumpass’ negligence by showing that he violated WMATA’s standard operation procedures (“SOPs”), and that the “jerk” caused by Bumpass’ application of the brakes was of such extraordinary force that his negligence could be inferred merely from its occurrence.

In support of her claim that Bumpass was negligent based on his violation of WMATA’s SOPs, Plaintiff presented expert testimony of Dr. Carl Berkowitz, a public transportation safety engineer. Dr. Berkowitz testified that various federal agencies fund research studies to address transportation safety issues, and that the results and recommendations from those studies emanate and filter down to all the major transit agencies, including WMATA. Dr. Berkowitz testified that those results and recommendations provide the foundation for nationally agreed-upon safety standards that all major cities in the United States, including the District of Columbia, have implemented.

Dr. Berkowitz identified two WMATA SOPs relevant to this case. First, a WMATA bus driver is required to check his or her rearview mirror before departing from a stop to confirm that all passengers are “secure” and “prepared for vehicle movement.” Second, a WMATA bus driver is instructed to start the bus “gradually” and stop the bus “smoothly.” When counsel for WMATA asked Dr. Berkowitz where and when these national standards for safe bus travel were articulated, he stated that they were developed from research 3,500 years ago that began with the Hammurabi Code long before the development of modern transportation.

Plaintiff also called Bumpass to the stand to establish that he violated the SOPs that Dr. Berkowitz identified. In his testimony, Bumpass admitted that he did not check his mirror before leaving the stop that morning because he assumed Plaintiff had sat down by the time he had started driving.

In support of her second theory that Bumpass’ negligence was shown by the fact that his braking caused the bus to jerk with extraordinary force, Plaintiff testified that the bus was going “fast, faster than normal buses” and that it was “jerking and then there was an abrupt stop.” She testified that it was the abrupt stop that caused her to lose her grip on the handrail and fall.
Lastly, Plaintiff also presented the expert testimony of Dr. Jamie Williams, a biomedical engineer, to explain how the force of the bus’ movements caused her to lose her grip on the handrail and fall down. Dr. Williams was able to estimate the grip strength of a woman of a similar age and weight as Plaintiff, but she was unable to testify as to Plaintiff’s actual grip strength on the date in question.

At the close of Plaintiff’s case, and again at the conclusion of all of the evidence, WMATA moved for judgment under Federal Rule of Civil Procedure 50, subsection (a). The trial court reserved ruling on the motion and submitted the case to the jury, which returned a verdict for Plaintiff and awarded her $404,713.28 in damages. The Court then granted WMATA’s renewed motion for judgment as a matter of law under Rule 50(b), rejecting Plaintiff’s effort to prove negligence through the violation of WMATA’s standard operating procedures. The Court concluded that Dr. Berkowitz failed to show that either of the two SOPs reflected national standards of care, there was no evidence of a causal connection between the driver’s failure to check the internal mirror and Plaintiff’s injury, the gradual start and smooth stop SOP could not serve as a negligence standard, and Plaintiff’s evidence was insufficient to show that the bus’ jerk was of an extraordinary force. Plaintiff appealed the trial court’s decision.

The Fourth Circuit reviewed the grant of the Rule 50(b) motion and initially noted two theories upon which a Plaintiff may recover in a bus negligence case against WMATA. First, the Court stated that a plaintiff may present direct evidence of negligence. Alternatively, the Court stated that a plaintiff may offer circumstantial evidence of negligence by showing that the driver caused a jerk “so violent or extraordinary that it could not have been consistent with safe operation of the bus.” The Court then noted that the question on appeal was whether Plaintiff presented sufficient evidence for a reasonable jury to find negligence under either theory.

The Fourth Circuit stated that, under applicable District of Columbia law, a plaintiff seeking to prove his or her case through direct evidence of negligence has the burden of establishing three elements: (1) “the applicable standard of care; (2) a deviation from that standard by the defendant; and (3) a causal relationship between the deviation and the injury suffered.” Varner v. District of Columbia, 891 A.2d 260, 265 (D.C. 2006). The Court affirmed the trial court’s holding under this theory, on the basis that Plaintiff failed to meet her burden of proof because she failed to establish that either of the SOPs constituted an applicable standard of care, and she failed to show that the deviation from the check-your-mirror SOP caused her injury.

The Court then looked at the only remaining issue, whether Plaintiff provided enough circumstantial evidence to prove negligence. Because jerks occur often in the normal operation of a bus, the Court acknowledged that a plaintiff may only recover by showing that the jerk or sudden start was of such unusual and extraordinary force that it could not reasonably be said to have happened in the ordinary operation of the vehicle. The Court cited to the District of Columbia Court of Appeals, which has said that such unusual and extraordinary force “cannot be inferred from mere descriptive adjectives and conclusions’ alone.” See Boyko v. WMATA, 468 A.2d 582, 584 (D.C. 1983). Plaintiff’s testimony that the bus was moving “fast, faster than normal buses” did not demonstrate that the operation of the bus was inconsistent with the safe or proper operation of the bus, nor that there was a sudden “extraordinary” stop. The Court also found that the testimony of Dr. Williams was not enough to save the case because Dr. Williams did not treat, or even speak to, Plaintiff in relation to this incident. The Court found that Dr Williams’ testimony was not based on any actual knowledge about the Plaintiff; rather it was based on the assumption that Plaintiff was holding the handrail with the maximum grip strength of a woman of similar age and weight. The Court stated that Dr. Williams’ testimony required the jury to speculate about the actual force of the stop, and that the sufficiency of the evidence to support a claim for relief may not be established by jury speculation. Ultimately, The Court affirmed the judgment of the trial court.  

Ultimately this case recognizes three important points to remember in case handling.  First, while violation of a SOP can sometimes be useful as evidence of negligence the violation of the SOP must be a proximate cause of the damages complained of.  In this case no causal connection was established between the SOP and accident.  Accordingly, violation did not matter for evidentiary purposes.  Second, the jerk of the bus needed to be of extraordinary force to support a fining against the WMATA and the descriptions by the Plaintiff were insufficient to demonstrate the required force.   Accordingly it is important to remember that a Plaintiff’s account of an accident, even if uncontradicted, won’t always be enough to reach the negligence standard.  Finally, expert testimony that takes into consideration someone similarly situated without addressing the specific plaintiff at hand calls for speculation by the jury and will not be sufficient to support a claim for relief.  

Thursday, March 19, 2015

Damages for Emotional Distress Awarded for Injury to Pet

During the morning hours of January 9, 2010, Frederick County Sheriff’s Deputies responded to the home of Roger and Sandra Jenkins to serve an arrest warrant upon their son.  Upon hearing knocking on his door, Roger Jenkins answered and, in an effort to cooperate with the Deputies, indicated to officers that he would move the barking family dogs from the house to a kennel outside.  As Roger Jenkins was walking out to the kennel, he left the family’s Labrador Retriever, Brandi, unleashed.  Brandi, who was about 6 to 8 feet ahead of Jenkins, rounded a corner ahead of her owner.  As Jenkins continued to walk, he heard a gunshot and shortly thereafter realized that Brandi had been shot and wounded by one of the deputies.  Rogers and his wife attended to Brandi and were able to take her to the vet.  She was treated there and rejoined her family the next day.  Ultimately the Jenkins’ brought suit against the sheriff’s deputies alleging constitutional and common law claims for the wounding of their dog and entry into their home.  At trial, Mr. Jenkins testified in detail about tending to the dog’s injuries and the effects of the incident on his family. 

Ultimately, the jury awarded $10,000.00 in economic damages and $100,000.00 in non-economic damages to each Roger and Sandra Jenkins, for the shooting of Brandi.  The defendant deputies promptly appealed the verdict and award.  One basis for the appeal was the existence of a statutory cap limiting the recovery for damages to a pet.  Per Maryland statute, recovery is available for the “reasonable and necessary cost of veterinary care” to a pet that is injured or killed tortiously; however, it is capped at $7,500.00.   Md. Code Ann., Courts and Jud. Proc § 11-110.  At the appellate level, the Court of Special Appeals, after a lengthy analysis of statutory interpretation and history, determined that the statute was created solely to specifically address a cap to economic damages.  That is, the statute’s language was applicable only to the payment of vet bills incurred, and to compensate owners for the fair market value of their pet.  Based on the strict application of the statute, the Court reduced the total $20,000.00 economic damage award to $7,500.00. 
Additionally, and most importantly, the Court held that the statute does not limit other types of recovery outside of actual economic damage.  Specifically, the Court stated:

“But nothing about CJ § 11–110 vitiated their existing right to recover, on appropriate proof, whatever non-pet damages they could prove, including their non-economic damages, for the Deputy's grossly negligent violation of their constitutional rights. Put another way, if the Deputy's bullet had missed Brandi, entered the house, and hit an expensive china vase sitting on the mantle, there would be no doubt that the Jenkinses could recover the economic and noneconomic damages they could prove. Because pets are property, CJ § 11–110 defines their property value, but it cannot rationally be read to cabin a grossly negligent official's total liability based on the fortuity that he shot a pet rather than something inanimate.”
Brooks v. Jenkins, 220 Md. App. 444, 470-71, 104 A.3d 899, 914 (2014).

In considering whether or not the amount of the non-economic award was appropriate, the Court indicated it would be improper, in light of the extensive evidence presented that allowed the jury to conclude that the deputy was grossly negligent, to reduce the amount awarded by the jury for pain and suffering of the Jenkinses.  In discussing the decision to uphold the jury’s award, the Court indicated that the analysis revolved around suffering to the Jenkins rather than suffering to Brandi.  During the trial, there was video showing both Mr. and Mrs. Jenkins very upset, and the latter crying.  Mr. Jenkins testified that his wife was hysterical, and there was testimony that Brandi needed near constant attention so that her staples and drainage tube were not disturbed.  Additionally, bandages on Brandi’s shoulder had to be changed every 3 to 4 hours for about 10 days.  Further, the Jenkins family became nervous when anyone came to their door, and Mrs. Jenkins began to suffer from more frequent panic attacks.  Finally, Mrs. Jenkins testified about her fear at the time of the shooting, indicating that she did not know if the deputy would next shoot her husband.  Based on these factors, the Court found that the jury award of $100,000.00 to each Mr. and Mrs. Jenkins for their pain and suffering as a result of the shooting of their dog was reasonable, and declined to reduce the amount.

The Brooks decision marks the first time the Court has, in a reported decision, stated specifically that the statutory limit on pet recovery applies only to veterinary care costs and lost economic value, thereby leaving open the possibility to recover under a separate claim based upon the emotional distress of pet owners when their pets are injured or killed by grossly negligent activity.  While many Animal Rights Groups have applauded the decision because it recognizes the important emotional impact pets have on our everyday lives, the Maryland Veterinary Medical Association, and others, expressed concern that allowing additional recovery would increase veterinary liability exposure and ultimately veterinary costs. See Steve Lash, Emotional Distress Damages Upheld for injury to Dog, The Daily Record, Dec. 18, 2014, at 10A. 

The implications of this case are not yet completely clear.  Because the Court has only indicated that additional damages are appropriate where there is gross negligence, there should be no rush to conclude that all negligence actions involving pets will lead to reaching outside of the statutory cap.  However, adjusters, homeowners and attorneys should all be aware that the case seems to signal the beginning of a movement that will lead toward increased potential recovery based on injuries to beloved pets.

Contributed by Lauren A. Seldomridge