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Winter 2011
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The Defense Line: Winter 2011

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


justiceGoodell Obtains Key Appellate Win in District of Columbia for Elevator Manufacturer: Decision Clarifies D.C. Law on Overlapping Doctrines of Elevator Contributory Negligence and Assumption of the Risk

The District of Columbia Court of Appeals issued its opinion in Phillips v. Fujitec America, Inc., et al., No. 09-cv-480, on September 2, 2010, affirming summary judgment for GDLD’s client, an elevator manufacturer, and several co-defendants. Each was accused of negligence after a young woman tragically fell to her death while trying to climb out of an elevator cab that had stalled between floors of a building she was visiting. Sid Leech won summary judgment in the District of Columbia Superior Court, arguing that the decedent was contributorily negligent and had assumed the risk of injury by climbing out of the elevator instead of listening to instructions to wait for help to arrive. Sid also argued the case on appeal. Derek Stikeleather assisted with the trial court and appellate briefing.

The trial court found that the decedent’s assumption of the risk barred any recovery by her parents and granted summary judgment to all defendants. On appeal, the plaintiffs argued that because the trial court had affirmatively stated that it could not grant summary judgment on contributory negligence, the decedent could not have assumed the risk of injury as a matter of law. In a remarkable opinion, the D.C. Court of Appeals rejected the trial court’s reasoning but affirmed its result. It held that the trial court’s legal analysis of contributory negligence was incorrect because the decedent was contributorily negligent as a matter of law. The opinion, which is to be published by the Court as binding precedent, clarifies D.C. law on the interplay between the overlapping doctrines of contributory negligence and assumption of the risk. It also provides important guidance on when summary judgment is appropriate in the District under either doctrine.

School Board Immune from Suit When No “Available Funds”

On February 26, 2010, the Maryland Court of Special Appeals (CSA), Maryland’s intermediate appellate court, issued a decision in which it held that a school board is immune from suit and therefore has no obligation to pay a contractor for agreed extra work, additional services, delay damages, and even a remaining contract balance on a written contract, if there is no appropriation remaining to cover the contractor’s claim. The case is reported as Board of Education of Worcester County v. BEKA Industries, Inc., 190 Md.App. 668, 989 A.2d 1181 (2010).

According to the CSA, there is no guarantee of payment of a claim against a school board — even one arising from a written contract — unless funds have been appropriated for the payment of such damages and those funds remain available. The CSA left unclear whether “available funds” means any funds in a school board’s coffers, any funds left in the construction account, contingency funds, or something else. In the BEKA case, the school board has taken the position that once the construction funds are depleted, the contractor is out of luck; regardless of how those funds have been spent and to whom those funds have been paid. Payment is, essentially, on a “first come, first served” basis, and the school board has taken the position that it has no obligation to expend contingency funds or to transfer funding from other sources to cover a judgment in favor of a contractor.

Unfortunately, the Court of Special Appeals got the decision wrong. Simply stated, the Court of Special Appeals’ analysis and application of the doctrine of sovereign immunity commenced in the wrong place. The Court of Special Appeals commenced its analysis of the sovereign immunity issue assuming that the Board possessed sovereign immunity from suit in contract. Had the Court examined the history of the doctrine of sovereign immunity in Maryland as applied to local boards of education, it would not have made this critical misassumption. In Bolick v. Bd. of Educ. of Charles County, 256 Md. 180, 183, 260 A.2d 31 (1969) and Bd. of Educ. of Charles County v. Alcrymat Corp. of Am., 258 Md. 508, 512, 266 A.2d 349 (1970), Maryland’s highest appellate court clearly stated that local boards of education do not enjoy the defense of sovereign immunity in actions brought against them based upon written contracts. Therefore, the Court of Special Appeals should have commenced its analysis of the sovereign immunity issue with the understanding that the Board did not possess sovereign immunity in actions based upon a written contract. The Court of Special Appeals erroneous assumption that the Board possessed the right to assert the defense of sovereign immunity in contract actions derailed its entire opinion and rendered it in error.

What the CSA’s decision means to all contractors who do business with school boards is that there is no guarantee of payment to contractors for either the original contract sum or for change orders or delay damages. There is no guarantee of payment to subcontractors if a valid “pay if paid” or “pay when paid” clause exists in the subcontract, or if the subcontractor has agreed to pass all claims through to the government owner. Further, there is no guarantee that sureties can recover funds from school boards if they step into the shoes of the contractor.

Contractors in the region have already said that the CSA’s decision will have a significant chilling effect on the business of school construction in Maryland — and undoubtedly elsewhere. The scope of the CSA decision is so broad as to include not only change order work and contractor claims, but also contract work as well. Under the CSA’s decision, a county school board could either negligently or intentionally re-allocate funding away from a school construction project to some other project or purpose. More troubling, even if a contractor were to properly and timely complete a school construction project, and comply with all contract terms and specifications, a school board under this decision could simply move money to a different account and then, pointing to this case, assert that the contractor has the burden of proving that the school board has money. This is not what the legislature has said, and this case should not stand.

Following the BEKA decision, the affected contractor petitioned Maryland’s highest court for certiorari. The petition for certiorari was granted, briefs have been filed, and the case will be heard in the high court on December 7, 2010.

Plaintiff’s Expert Nurse Ileene Warner-Maron Stricken as a “Professional Witness”

In 2009, the family members of a deceased nursing home resident filed a wrongful death and survival action in the Circuit Court for Caroline County, Maryland. Jump v. Ruxton Health of Denton, Case No. 05-C-09-12892. One of the Plaintiffs’ standard of care experts, Nurse Ileene Warner-Maron, signed a Certificate of Qualified Expert pursuant to Maryland Code, Courts & Judicial Proceedings Article, Section 3-2A-04 attesting to various alleged deviations in the applicable standards of care. Included within the Certificate was the necessary statutory language stating that she did “not devote annually more than 20 percent of the expert’s professional activities to activities that directly involve testimony in personal injury claims.” Md. Code, CJP, § 3-2A-04.

During discovery, Nurse Warner-Waron was deposed. She conceded at deposition that thirty (30) to forty (40) percent of her business relates to litigation matters and that this percentage was actually down from the fifty (50) percent litigation work she had been doing in the last several years. When pressed, she admitted to reviewing on average fifteen (15) new cases per month and had reviewed thirty (30) to forty (40) cases for Plaintiff’s counsel alone. This expert review work was in addition to her actual deposition and trial testimony, which from 2007 through August 2010, consisted of seventeen (17) trials and sixty four (64) depositions (or 2.5 times per month on average in court or at deposition). Further still, while Nurse Warner-Maron produced her list of trials and deposition testimony as an exhibit at her deposition, she revealed that she maintains a second list that she would not disclose because it contained all of the cases she has reviewed for litigation purposes and rejected or otherwise had not provided deposition or trial testimony.

Armed with her deposition testimony, a Motion to Strike Nurse Warner-Maron was filed and argument heard on the first day of trial. The Honorable Judge Dale R. Cathell ultimately struck her as a professional witness in violation of the 20% rule set forth supra. In reaching that determination, Judge Cathell applied the test articulated by the Maryland Court of Appeals in Witte v. Azarian, 369 Md. 518, 801 A.2d 160 (2002) which defined the term “directly involving testimony” to include, in addition to actual testimony, (1) the time the doctor spends in, or traveling to and from, court or deposition for the purpose of testifying, waiting to testify, or observing events in preparation for testifying, (2) the time spent assisting an attorney or other member of a litigation team in development or responding to interrogatories or other forms of discovery, (3) the time spent in reviewing notes and other materials, preparing reports, and conferring with attorneys, insurance adjusters, other members of a litigation team, the patient, or others after being informed that the doctor will likely be called upon to sign an affidavit or otherwise testify, and (4) the time spend on any similar activity that has a clear and direct relationship to testimony to be given by the doctor or the doctor’s preparation to give testimony. Judge Cathell also relied up the recent case of University of Maryland Med. Sys. Corp v. Waldt, 411 Md. 207, 983 A.2d 1112 (2009), in which the Maryland Court of Appeals examined the legislative intent behind the “20 percent rule” and struck an expert who it deemed to have devoted 20.66% of his professional time to activities directly involving testimony. Id.

The case proceeded to trial with another standard of care expert designated by the Plaintiff and after four days of testimony, the jury returned a defense verdict finding the Defendant and its staff complied with all applicable standards. In the days following the decision, Plaintiffs’ counsel advised his client would be filing an appeal.

Successful Defense of Negligence Claims Against Maryland General Hospital by Chris Daily and Mark Coulson of Miles and Stockbridge

On October 6, 2010, Chris Daily and Mark Coulson of Miles & Stockbridge successfully defended Maryland General Hospital in the Circuit Court for Baltimore City in a case claiming that the Hospital’s Emergency Department Staff was negligent in not appreciating the plaintiff’s psychiatric issues and instituting appropriate precautions to prevent the plaintiff from eloping from the Emergency Room. The plaintiff jumped from the Howard Street Bridge a short time later and sustained significant injuries. 

Plaintiff claimed that given his extensive psychiatric history (including previous ER visits and admissions to Maryland General), together with his current symptoms, the doctors and nurses should have been on notice that he was a flight risk. The record established that at the time of the visit, plaintiff had been off of his medication for several days and allegedly had not slept or eaten. There was conflicting testimony regarding whether plaintiff was having auditory hallucinations at the time of his visit, and also conflicting evidence as to exactly what psychiatric information was relayed by the family members accompanying plaintiff. Plaintiff’s experts claimed that taken as a whole, these facts should have led the doctors and nurses to conclude that plaintiff was a danger to himself and a potential flight risk, mandating at a minimum that the ER provide a "sitter" to make sure plaintiff did not leave. Moreover, they argued that plaintiff was allegedly showing signs of increased agitation as his length of stay progressed. Plaintiff had been in the ER approximately three and a half hours at the time of his elopement. His injuries included multiple fractures and an extended stay at Shock Trauma. He also claimed future care damages as well as noneconomic damages.

The Hospital’s staff and experts argued that despite his psychiatric history, plaintiff was cooperative at the time of his assessment and did not show signs that he was a danger to himself. They also pointed to plaintiff’s own testimony that at the time he left the ER, he did not intend to hurt himself and simply was walking home (albeit in a hospital gown in December) to his house in Remington. According to plaintiff, he jumped from the bridge to evade police who had been summoned by the Hospital when they discovered plaintiff had left.

Mark and Chris filed a motion for summary judgment arguing, among other things, that there was no causation because even if Plaintiff had given notice of his elopement, the ER staff could not have legally restrained him. They also argued that plaintiff’s decision to jump from the bridge due to the arrival of police was a superceding intervening cause, and that plaintiff was contributorily negligent and/or assumed the risk by jumping from the bridge. Although the Court heard argument on the motion on the first day of trial, it was not until the second day of trial after jury selection and rulings on motions in limine that the Court, on its own motion pursuant Rule 2-502 entered judgment for the Hospital, finding that because the Hospital had no authority to hold Plaintiff, no tort duty could be created.

The following are excerpts from The Funk & Bolton Mid-Atlantic Property & Casualty Reporter, November 2010, Jennifer S. Lubinski, Christopher W. Poverman, Mary E. McGrath

Third Circuit Holds That FCC Regulations Preempt State Tort Liability for Cell phone Related Injuries

In a decision favorable to the cell phone industry, the Third Circuit has ruled that lawsuits against cellular companies are preempted by regulations propounded by the Federal Communications Commission (the “FCC”).

In Farina v. Nokia, Inc., 51 Comm. Reg. (P&F) 955, decided on October 22, 2010, the Court was asked to decide whether a class of plaintiffs, made up of Pennsylvania cell phone users, could sue cellular companies for exposing them to allegedly unsafe levels of radiofrequency (“RF”) radiation. They claimed that the use of cellular phones without headsets created health risks, that companies were aware of these risks and failed to respond, and that the companies were in violation of state warranty law.

The Court rejected the claim because it found that the action was preempted by FCC regulations concerning wireless phones. The FCC oversees cellular communications much as it regulates radio transmissions to ensure that the system is efficient and to permit service providers to comply with uniform national standards rather than a patchwork of state regulations. The FCC has regulated RF emissions since 1985. Regulations in place since 1996 limit exposure to RF emissions.

The Supremacy Clause of the United States Constitution invalidates any state law that conflicts with or is contrary to federal law. State law may be preempted by federal law in several ways: express preemption, where Congress specifically states in legislation that the law preempts state law on the issue; field preemption, where federal law so completely occupies the field that state laws dealing with the same field are invalid; and conflict preemption, where compliance with both state and federal law would be impossible or where state law stands as a barrier to compliance with federal law.

The Third Circuit held that the FCC had carefully balanced the risks of RF emissions with the need for rapid, dependable, efficient and accessible wireless service throughout the country. To allow Pennsylvania law to apply would invalidate the FCC’s risk/benefit analysis. Accordingly, the Court held, state tort and warranty law concerning RF emissions was preempted by the FCC regulations on RF exposure.

Proposal to Increase Jury Trial Threshold Approved by Maryland Voters

On November 2nd, Maryland voters were asked to decide whether the threshold for the right to jury trial should be increased from $10,000 to $15,000. Although the threshold had been increased only a few years ago, voters resoundingly approved Question 2 on the Maryland ballot.

The law is not yet effective, and will not become effective until Governor O’Malley "proclaims" the amendment passed. Once the change becomes effective, it will apply only to lawsuits filed on or after the effective date, regardless of when the accident or injury giving rise to the lawsuit occurred.

The district court in Maryland is a court of limited jurisdiction. All cases are tied to the bench. Discovery in civil cases is limited to fifteen interrogatories, which can make it difficult to fully investigate the plaintiffs claims. However, the measure was supported by the local small business community because it would permit quicker, less expensive resolution of claims worth up to $15,000.

Maryland Rules Committee to Consider Abandoning — Contributory Negligence Doctrine in Favor of Comparative Negligence

The Chief judge of the Maryland Court of Appeals made a surprise announcement on November 21, 2010 that the Rules Committee will study the “feasibility” of moving from the contributory negligence standard to a comparative negligence system.

The General Assembly previously considered, but rejected, the change, despite significant pressure by the plaintiffs’ bar. Under the contributory negligence standard, if a defendant can establish that a plaintiff contributed even slightly to his or her own injury, the plaintiff is barred from recovery as a matter of law. The defense has frequently been the basis of motions for summary judgment, especially in slip and fall, and similar cases. Under a comparative negligence approach, however, the plaintiff would be entitled to recover based on the “portion” of the accident for which he or she is not responsible.

Maryland is one of only a few states in the country to maintain the contributory negligence defense, along with other related common law concepts such as joint and several liability.

The Rules Committee is a group of attorneys and judges who study and write the Rules of Procedure. It is extremely unusual for the Committee to be asked to develop what would be an enormous change to existing law. Ordinarily the Committee addresses issues such as timelines for filing pleadings and other non-substantive procedural rules.

The Rules Committee is currently seeking input from several local bar associations, including Maryland Defense Counsel, Inc., which has historically opposed conversion to a comparative negligence scheme.

Maryland Defense Counsel, Inc.
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