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Spring 2017
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The Defense Line: Spring 2017

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The Defense Line: A Publication From The Maryland Defense Counsel, Inc.


justiceMDC is proud to boast that four of MDC’s members were selected as “Leading Women” by the Daily Record

Nicole Lentini, Rachel Hirsch, Talley Kovacs, and Alicia Ritchie

Congratulations to our Leading Ladies!
(This is for women 40 years old and younger who are recognized as leaders in their fields.)

Mary Alane Downs and Morgan Carlo Downs, P.A. recently secured two defense verdicts on behalf of an intensivist/critical care physician and a hand surgeon following jury trials in the Circuit Court for Baltimore City.

The first case was a wrongful death claim involving a patient who died from a massive pulmonary embolism. The main issue in this case whether or not it was appropriate to administer thrombolytic therapy (Alteplase/tPA). The plaintiffs argued that the standard of care required that the patient receive tPA due to her persistent respiratory distress and hemodynamic instability. The defense argued that tPA was not indicated during the relevant time period because the patient remained hemodynamically stable. After a five-day jury trial, the Court was forced to declare a mistrial when the jury could not reach a verdict after four days of deliberation. The case was re-tried in front of a jury in the Circuit Court for Baltimore City. After a five-day trial, the jury returned a verdict in favor of the defense in short order.

The second matter involved a claim against a hand surgeon. The plaintiff, who had accidently severed the tendons in two of his fingers with a box cutter at home, alleged that the surgeon negligently crossed the tendons during the flexor tendon repair surgery. The defense argued that the tendons were not crossed and that the plaintiff’s limited range of motion was due to the development of adhesions, which is a known complication. After a four-day jury trial, the jury returned a verdict in favor of the defense within one hour.

MDC members, Tina Billiet and John Sly, successfully defended to verdict a general surgeon alleged to have negligently cut the common (and hepatic) duct during a laparoscopic cholecystectomy. The patient underwent subsequent failed stent placement and was eventually transferred to a tertiary care facility where she underwent a Roux-en-Y procedure to reconstruct her biliary tree. The matter was tried before the Honorable Leo Green in the Circuit Court for Prince George’s County. No appeal was filed.

MDC — Providing Food and Thought

The Maryland Defense Counsel was honored to sponsor a Lunch and Learn program for approximately 90 participants at the 2016 Maryland Workers’ Compensation Educational Association convention held in Ocean City, Maryland. The program, entitled, “A Glimpse into the Other Side’s Thinking” presented tips and tricks for early resolution of compensation cases. The presenting panel consisted of Matt Trollinger Esq., Steven Schenker, Esq., Chris Vandergrift, MCRS, Barbara Zeronick, Esq. (certified mediator) and was moderated by Edward Goldsmith, Esq. and Maryland Workers’ Compensation Commissioner Jeffrey T. Weinberg.

This distinguished panel provided insights into windows of opportunities to settle worker compensation cases early in the process with an emphasis as to what the opposing sides are thinking at crucial turning points. The discussions include issues from initial compensability to causal connection issues through the vocational rehabilitation process. Additionally, when, why, and how to involve both a mediator and the Subseqent Injury Fund were addressed.

Mary Malloy Dimaio of Crosswhite, Limbrick & Sinclair, LLP recently obtained a defense verdict after a three-day jury trial in the Circuit Court for Howard County. Plaintiff, a major property/casualty insurer and the two medical practices it insured, sought damages as a result of a freeze-burst event in a sprinkler system in the attic of a commercial building in Elkridge, Maryland. Mary successfully moved to exclude plaintiff’s liability expert, a structural engineer, as unqualified to render opinions on the standard of care of a fire protection service provider and on the cause of the incident. Other key pieces of evidence were also excluded on motion as not having been provided in discovery, leaving the jury with little to work with in terms of liability or damages.

Goodell DeVries Appellate Team Secures Trial Court Win Upholding Maryland’s 20% Rule on “Hired Gun” Experts

September 2016

In a reported opinion, Maryland’s Court of Special Appeals has applied Maryland’s 20% Rule for expert witnesses in personal injury cases and affirmed summary judgment in favor of a prominent OB-GYN practice group. At trial in 2015, Kelly Hughes Iverson and M. Peggy Chu convinced the trial judge in the Circuit Court of Howard County that Plaintiff’s expert, Dr. Lawrence S. Borow, devoted more than 20% of his professional time to activities that directly involve testimony in personal injury claims. By statute, Maryland limits such experts to 20% to prevent the use of “Hired Gun” professional witnesses in personal injury cases. Finding that Dr. Borow did not comply with the 20% Rule, the trial court entered judgment in all Defendants’ favor without a trial.

For years, certain expert witnesses have dodged the 20% Rule by obfuscating, testifying inaccurately about their activities, and refusing to produce records that would substantiate (or refute) their signed certificates of compliance. Here, Dr. Borow, who has testified in hundreds of cases and earned millions of dollars in litigation as a paid medical-expert witness, fought discovery of how much professional time he spent in activities that directly involve testimony in personal injury claims. He gave vague and inaccurate testimony and produced financial records only after a court order to do so. Even then, his relevant earnings records were incomplete, and he never produced his redacted office calendar, which would have shown how much, if any, medicine he actually practices.

On appeal, Plaintiff argued that the trial court had made a legal error. Assisted by Derek M. Stikeleather, Kelly Hughes Iverson showed the appellate court that the ruling excluding Dr. Borow was a proper exercise of discretion by a trial judge who was given a “messy and hotly disputed record.” The three-judge panel affirmed that “the burden of persuasion never shifts in a medical malpractice case” and the plaintiff must carry this burden. It is not the defense’s burden to disqualify the plaintiff’s expert. Given Dr. Borow’s resistance to basic discovery, serious gaps in the records he did produce, and his lack of credibility, the trial court “was well within its discretion to find that” Dr. Borow did not show that he complied with the 20% Rule.

Goodell DeVries Attorneys Obtain Defense Verdict in Wrongful Death Case Against Prince George’s County Orthopedic Surgeon

March 2017

Goodell DeVries attorneys K. Nichole Nesbitt and Meghan Hatfield Yanacek obtained a defense verdict in the Circuit Court for Prince George’s County for their clients, an orthopedic surgeon and her practice group in Prince George’s County. The plaintiff was the family of a 39 year old patient who died several weeks after orthopedic surgery, allegedly from a blood clot that formed after the surgery and traveled to the patient’s pulmonary system. The plaintiff alleged that the surgeon should have given the patient anticoagulation drugs following surgery to prevent problematic blood clots from forming, arguing that the patient had several risk factors for forming clots. The defense argued that anticoagulation drugs were not indicated for this patient and carried their own risks. After a six-day trial, the jury unanimously decided that the orthopedic surgeon acted appropriately and entered a verdict in favor of the defendants.

Annual Meeting and Crab Feast: June 7, 2017

Maryland Defense Counsel, Inc.
1218 Broadway Rd.
Lutherville, MD 21093
Phone 410-560-3895
Fax 443-759-3324