Factual Background on Denial of Scheduling Order Amendment

​The plaintiff brought suit in the Circuit Court for Talbot County for a car accident and resulting permanent injuries to his foot, and lost business profits. (Op. at 2-3).

The circuit court’s scheduling order designated June 2022 for the defense expert witness disclosures and a discovery cut-off of October 21, 2022. However, the defense did not designate experts by the deadline. (Id. at 3).

Eight days before the close of discovery, the parties filed a joint motion to modify the scheduling order based on the plaintiff’s lawyer’s medical leave. The court granted the motion, designated November 4 as the new deadline for disclosing the defense expert witness, and January 19, 2023, as the latest discovery cut-off. (Id. at 3-4).

Ten months after being served with interrogatories, the plaintiff provided his answers. The defense then deposed him in December. However, the defense did not designate an expert by the November deadline. (Id. at 4).

Almost 2 months after the second discovery deadline, the defense filed a consent motion to extend the scheduling order. The motion stated that the parties had been attempting to settle the case before conducting extensive discovery but had been unable to do so. The court issued a denial of the scheduling order amendment and scheduled the trial for January 2024. (Id.).

The defense filed a motion for reconsideration, noting that the extension would not prejudice either party since the trial was 10 months away. The court also denied this motion. (Id. at 4-5).

The jury then returned a verdict in favor of the plaintiff for over $450,000. Consequently, the defense appealed. (Id. at 1).

Appellate Court of Maryland

​An abuse-of-discretion standard governs discovery decisions. (Id. at 8). The Appellate Court concluded that the circuit court properly exercised its discretion in the denial of the scheduling order amendment because it could have reasonably found that the defense had not substantially complied with the scheduling order. (Id. at 10).

​The circuit court reviewed the dates of various activities and concluded that no surprising information had developed. (Id. at 12). Applying the Taliaferro factors, the Appellate Court found that the defendant did not explain why it did not identify experts. There was no evidence of a good-faith effort at compliance. (Id. at 14).

The Appellate Court rejected the defense’s blame on the plaintiff’s delay in responding to interrogatories. The court said ultimately the burden falls on the defendant to prepare its defense. (Id. at 15).

The defense failed to engage in trial preparation outside of deposing the plaintiff. It waited until months past the discovery deadline to request the second extension. Settlement discussions do not override the duty to prepare for trial if the parties do not settle. (Id. at 16).

The Appellate Court cautioned that modification of scheduling orders, particularly for a second time, is generally reserved for extraordinary circumstances. (Id. at 17). The plaintiff’s late interrogatory answers, additional particulars revealed in his deposition, and engaging in settlement discussions were not extraordinary circumstances warranting a second modification. (Id.).

Holding

The Appellate Court concluded that the defense did not substantially comply with the scheduling order. As a result, the court did not reach the question of whether the defense provided good cause for noncompliance. The circuit court did not abuse its discretion in denial of the scheduling order amendment. (Id.).

For the same reason, the Appellate Court affirmed the exclusion of the defense’s expert witness, a police officer who would have testified that the data from the plaintiff’s car showed he was accelerating and traveling twice the speed limit at impact. (Id. at 1-2,18). Finally, the Appellate Court held that the plaintiff had failed to introduce evidence that any contributory negligence by the plaintiff was a proximate cause of the accident. As a result, the trial court properly granted judgment for the plaintiff on the issue of contributory negligence. (Id. at 19-23).

Commentary By Baltimore Medical Malpractice Lawyer Mark Kopec on Denial of Scheduling Order Amendment

​This denial of the scheduling order amendment is a very tough result for the defense lawyer and client. This opinion is a reminder of the very deferential standard applied to the trial court. An appeals court will uphold a trial judge’s strict enforcement of scheduling order deadlines, even when many trial judges would have been more lenient.

​Even though the plaintiff had significantly delayed in providing answers to interrogatories, the defense failed to show that it had taken every possible action to comply with the scheduling order, given the information that it had.

Two additional aspects also can be traps in situations like this. The plaintiff specifically agreed to every request made by the defense. This opinion, however, is a reminder that trial judges are not only not bound by such agreements but often can act against them.

Lack of Prejudice Not Enough

The most challenging aspect of this denial of scheduling order amendment was that, when the trial court scheduled the trial, it was 10 months away. That time was enough for the parties to complete discovery without delaying the case. There also was no apparent prejudice to the plaintiff from the defense’s previous failures to comply with the scheduling order.

In many other cases, trial judges would have allowed the amendment to the scheduling order because it would not have delayed the case. This opinion, however, is a stark reminder that a party cannot rely on an extension in such circumstances.

The bottom line for this denial of scheduling order amendment is that a party that fails to show substantial compliance with a scheduling order is not in a position to reverse a trial judge who declines an extension.

You can read other blog posts on cases involving Discovery and Procedure.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

​

Factual Background

The plaintiff and defendant had been in a romantic relationship. The plaintiff brought a lawsuit for damages in the Circuit Court for Anne Arundel County, alleging that the defendant had transmitted the herpes virus (HSV-2) to her. (Op. at 1).

The court oversaw the jury selection process at trial. After the parties used their peremptory strikes, the court asked if the parties were satisfied, and the defense stated that they were not, because the jury consisted entirely of women. (Id. at 3-4). 

The exchange included:

DEFENDANT’S COUNSEL: I don’t think this is a jury of my client’s peers. 

THE COURT: Okay. Well, you had the opportunity to make that happen. You were satisfied with your (indiscernible) so I’m going to overrule your objection.  

(Id. at 4).

After opening statements, the court asked the plaintiff’s lawyer why they struck male jurors. The plaintiff’s lawyer responded that the time for asserting a Batson challenge was before the jury was seated. (Id.).

On the second day of trial, after the plaintiff had begun to testify, the trial judge revisited the defendant’s Batson challenge and denied it, ruling it was insufficient. (Id.).

The jury found in favor of the plaintiff, and the court entered judgment in her favor in the amount of $890,000. (Id. at 1).

Appellate Court 

On appeal, the defendant argued that he had raised a Batson challenge when he objected to the all-female jury. A party can raise a Batson challenge when the opposing party uses a peremptory challenge to strike a juror for a discriminatory purpose, such as gender. The U.S. Supreme Court established these principles in Batson v. Kentucky, 476 U.S. 79 (1986) and J.E.B. v. Alabama, 511 U.S. 127 (1994). (Op. at 5).

Under Batson, if a party makes a prima facie case of discriminatory exercise of peremptory challenges, the opposing party must produce neutral explanations as to why it exercised its peremptory challenges. The opposing party must articulate a neutral explanation in this case. After these steps, the trial judge determines whether the objecting party has established a case of purposeful discrimination. (Id. at 6).

To make a prima facie Batson challenge, a party must put forth some evidence to show that the other party has exercised its peremptory strikes in a discriminatory manner. The moving party must show that they are a member of a cognizable group and that the adverse party exercised peremptory challenges to remove prospective members of the jury on the basis that they are of the same protected class as the objecting party. A challenging party must make the case that the totality of the factual circumstances raises an inference that the adverse party used its peremptory challenges to exclude jurors for a discriminatory purpose. (Id). 

Defendant Failed to Make a Prima Facie Batson Challenge

Here, the defendant objected to the jury because he was a male and the seated jury was all female. There was a discussion of the juror numbers that the plaintiff had struck. Still, the defendant did not identify the jurors before the court swore the jury. (Id. at 8).

The Appellate Court stated that the defendant could have reviewed the jury list and identified the jurors struck by the plaintiff but did not. The defendant also did not state that he was making a Batson challenge. The defendant was required to identify the stricken jurors and proffer that the plaintiff struck those jurors for a discriminatory purpose. Failing to do so, the defendant was unable to make a prima facie Batson challenge. (Id. at 8-9). 

Once the court swore the jury, it was too late to revisit a Batson challenge. (Id. at 8).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Making a Prima Facie Batson Challenge

As a trial lawyer, your role is not just about making decisions, but about making the right decisions at the right time. These decisions, once made, often cannot be undone. While you can anticipate some situations, there are many that are unpredictable. This unpredictability underscores the importance of strategic decision-making in legal cases.

Here, the defense lawyer recognized the situation with the jury that they wanted to challenge, but was unsure of the legal requirements. This situation is not unusual. It highlights the importance of a comprehensive understanding of legal principles and procedures. Trial lawyers cannot memorize every legal principle and its supporting citation. Still, they must prepare to navigate such situations.

Strategy Considerations

In such an instance, one option is to ask the judge for a brief recess, as soon as the all-female jury was seated, but before the court swore the jury. This proactive approach could have empowered the defense lawyer to inform the judge that they intend to challenge the jury selection and, during a brief recess, gather the necessary authority and procedure to do so.

We don’t know if the trial judge would have granted that brief recess. Based on the trial judge’s comments, the court would have also appreciated an opportunity to review the procedure and authorities.

During this discussion, the plaintiff’s lawyer was savvy. They declined to answer the judge’s question why they struck men from the jury. Instead, the lawyer replied that the inquiry was too late. This strategic decision may have prevented the defendant from gaining potentially useful information. Would the answer to the judge’s question have revealed information helpful to the defendant’s challenge? We don’t know. However, had the defendant taken steps to establish the prima facie case promptly, the plaintiff may have had to explain their actions.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The plaintiff sued the Circuit Court for Prince George’s County for injuries in a head-on collision with a truck. (Op. at 1). The plaintiff went to the emergency room and then to a chiropractor three weeks later. (Id. at 2). The chiropractor treated the plaintiff for back and leg pain from the accident. The treatment lasted for 3 months, and medical bills totaled $7,424. (Id.).

In the lawsuit, the plaintiff did not seek reimbursement for medical bills. His claim was for non-economic damages for past and future pain and suffering. The defendant agreed it caused the accident. The trial was to determine whether the accident caused the plaintiff’s injuries and the amount of damages. (Id.).

Before trial, the plaintiff filed a motion in limine to prevent the defense from introducing his medical bills into evidence. A motions judge denied the motion and also the plaintiff’s motion for reconsideration. On the first day of trial, the plaintiff renewed his motion. (Id.).

Trial

The trial judge addressed the prior denial of the motions. The judge seemed to say the motion had to be decided at trial since it concerned what evidence the party intended to put on. The judge also said a pretrial judge’s failure to preclude evidence did not bind the trial judge. After reviewing the case law, the trial judge caused revision of the order, and excluded the medical bills because they were irrelevant to the pain and suffering. (Id. at 6).

The plaintiff called family and co-worker witnesses to testify that the plaintiff has had significant back pain since the accident. The plaintiff also called an orthopedic surgeon who testified that the accident caused a lower back injury with nerve damage, and the pain would be life-long. (Id. at 3). The jury returned a verdict for the plaintiff for $500,000. (Id.). The defendant appealed.

Appellate Court of Maryland

The defendant argued that the trial court abused its discretion by granting the motion in limine and causing revision of the order on the first day of trial and unfairly prejudiced the defendant by disrupting its trial strategy. (Id. at 6). The defendant stated that it relied on the pretrial ruling and would elicit testimony from the plaintiff’s expert that the medical bills were reasonable. The parties conducted the expert’s de bene esse deposition after the pretrial denial of the motion. The defendant further stated that it had intended to argue that the modest amount of medical bills should result in a modest damage award. (Id. at 8).

The Appellate Court first observed that the premise of the defendant’s argument was faulty, that is, that the amount of medical bills is relevant to the question of pain and suffering. The court cited the case of Wright v. Hixon, 42 Md. App. 448, 456 (1979) that held the opposite. In the Wright case, the court ruled that the amount of medical bills is not a determining factor in assessing pain and suffering. This ruling was crucial in the current case as it formed the basis of the appellate court’s decision. (Id. at 9-10).

Rule 2-602(a) and the Revision of an Order

Second, the trial court “clearly” had the authority to revisit the prior denials of the motion. Md. Rule 2-602(a) states that an order adjudicating less than an entire claim is subject to revision at any time before entry of final judgment. (Id. at 10-12). The Appellate Court added that since the plaintiff made it clear in the motion that he was not seeking reimbursement for medical expenses, the trial court erred in denying the motion because of the Wright case. This decision indicates that it’s crucial to align trial arguments with established law and to be aware of the court’s authority to revisit prior denials. (Id. at 10-12).

In its reply brief, the defendant argued that the trial court should have postponed the case to allow the defendant to prepare, including the expert’s cross-examination properly. The Appellate Court first noted it does not ordinarily address arguments first raised in a reply brief because the plaintiff did not have a chance to respond in brief. The court also said that the defendant could have requested a postponement but did not. (Id. at 16 n. 7).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Revision of an Order

The defendant was not going to win this appeal.

The defendant based its entire trial strategy and also appeal arguments on the incorrect premise that medical bills are relevant to pain and suffering. This is a well-established legal principle. Relying on rulings that contradict established law generally is not a good long-term strategy. The court will likely reverse them at some point, as it did here. The defendant also seemed to have overlooked that the rules allowed the trial judge to revisit the improper denials. 

The trial judge had an explanation for why the pretrial judges denied the motion. The apparent policy of the circuit court was not to address matters before trial that depended on whether the parties would introduce specific evidence at trial. However, the Appellate Court stated that denying the motion was indeed an error.

Alternatives

An alternative way for the circuit court to get to the same place would be to defer the ruling on the motion until the trial judge convenes the trial. The problem is that it then makes it difficult for the parties to prepare for trial with the issue unresolved. However, this is a situation that litigants regularly have to adjust to. So, the better practice is to grant the motion pretrial, but the court could defer and not err.

For another Maryland appellate case involving Rule 2-602(a), read Women First v. Harris 2. You can also read additional cases on procedure.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

This case involved litigation between two companies over alleged nonpayment for services. The plaintiff filed a document stating that they attempted service of process at the SDAT address for the defendant’s registered agent three times. There was no response at the door each time. (Op. at 3).

The plaintiff then filed a declaration stating it did substitute service of process on SDAT under Rule 2-124(o). The plaintiff also requested an order of default. There were multiple ways in which the service and order of default did not comply with the rules. The Circuit Court for Prince George’s County held a hearing and then entered a default judgment against the defendant. Afterward, the defendant filed motions to vacate the judgment based on improper service, and the circuit court denied them. The defendant appealed. (Id. at 4-6).

Appellate Court of Maryland Good Faith Attempted Service of Process Before Serving SDAT

The Appellate Court focused on the good faith standard for attempts at service of process. Maryland Rule 2-124(o)(3) applies:

Service may be made upon a limited liability company by serving two copies of the summons, complaint, and all other papers filed with it, together with the requisite fee, upon the State Department of Assessments and Taxation if (iii) two good faith attempts on separate days to serve the resident agent have failed. (Id. at 9). 

The issue concerned what constitutes “good faith” attempts. The Appellate Court noted that this standard can vary based on the circumstances. (Id. at 10). In this case, the court found that the declaration was insufficient to establish two good-faith attempts at service for the following reasons:

• The first attempt at service was on a Sunday. Attempting the service of a SDAT business resident agent at the business location on Sunday does not constitute a good faith attempt. 
• On the other two dates, the declaration did not state:
  • The times service was attempted (so it was unclear whether it was during regular business hours). 
  • Whether the server knocked on the door
  • How many times
  • How long did he wait
  • Whether he took other steps to elicit a response
  • If he looked for another entrance
  • Whether he posted contact information so that the defendant would know service a party was attempting service
  • Whether he called any publicly available phone numbers to get information to attempt service.

(Id. at 10-11).

Consequently, the Appellate Court ruled that the circuit court denying the defendant’s motion to vacate was an abuse of discretion. This ruling underscores the court’s strict adherence to the good faith standard in service of process. (Id. at 11-12).

Commentary By Baltimore Medical Malpractice Lawyer Mark Kopec on Good Faith Attempted Service of Process Before Serving SDAT

This case clearly illustrates how the legal system can impose more stringent requirements on a statutory term than what may be apparent from the statute’s language. The statute mandates two good-faith attempts at service before serving SDAT. A party might believe it has met this requirement by sending a process server to a business twice. However, this opinion, and others from the Maryland appellate courts, reveal that the good faith standard is more intricate than it seems.

In cases like this, the appellate courts often delve into the circumstances. They identify additional steps the process server could have taken to ensure a more thorough attempt to serve the papers. This examination underscores the significant role that a party should play in assessing its service attempts and the documents submitted to the court. Failure to meet the good faith standard identified by the court could impede the party’s efforts to pursue the litigation.

Cases of Evasion of Service

One of the appellate court’s comments in this case did not fully acknowledge the challenges that plaintiffs sometimes face. The court suggested that the process server could have left contact information for the defendant. However, it’s important to recognize that defendants sometimes try to evade service, which can complicate a plaintiff’s attempt to start a lawsuit. Leaving contact information could potentially reveal the identity of the serving party to an evading defendant, which is not a risk that the courts should expect a process server to take.

The goal of the service of process is to provide actual notice of a lawsuit to a defendant. It is remarkable how frequently defendants claim not to be aware of the litigation despite many attempts to notify them through service, mail, and other means. However, they claim to discover it only when the court enters judgment. A plaintiff can avoid these frustrations by following the good faith standard for attempted service before serving SDAT, and the court should uphold any default judgment.

You can read about another case on the good faith standard in service of process: Mullen v. Thomas 2

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Background on Alternative Means of Service of Process

This case involves a defamation claim filed in the Circuit Court for Prince George’s County. (Op. at 1). The plaintiff’s counsel filed an affidavit that he hired a process server to personally serve the defendant at a property believed to be the defendant’s residence. The server made attempts on four dates, but there was no answer each time. (Id. at 2).

The plaintiff’s lawyer hired a company to research the address and effect service of process. The server went to another address, and the resident and a property manager claimed not to know the defendant. (Id. at 2-3).

The plaintiff then filed a motion to serve the defendant by alternative means of service of process, specifically, email under Rule 2-121(c). The motion identified an email address that the defendant used in connection with the subject matter of the case. It included a copy of an email from that address to the plaintiff four months before. (Id. at 3).

The plaintiff then requested the court to reissue the summons. The court then denied the plaintiff’s motion, stating it did not identify efforts to locate the defendant’s current residence. (Id. at 4).

Not deterred by the initial denial, the plaintiff renewed the motion for service by alternative means of service of process (email), identifying the attempts at service of process at both properties. It also stated that a land records search for a current address was unsuccessful. (Id.).

The court granted the motion, finding that the plaintiff had made a good faith effort to serve the defendant and that mailing to the last known address would be impracticable. The court allowed service of process by email, mailing the documents, and leaving copies at the two properties. (Id. at 5).

Default

The plaintiff filed an affidavit of service of process by email and certified mail. (Id. at 5-6). When the defendant did not respond, the plaintiff filed a request for an order of default under Rule 2-613. She also provided a declaration that she had affixed documents at a conspicuous place at the second address and spoke to a resident who did not know the defendant. (Id. at 6). 

The court entered an order of default and sent notice of the order and a hearing to the first property. (Id. at 7). The postal service returned this order as undeliverable. (Id. at 7-8).

The court held an ex parte hearing on damages and entered a judgment of $75,000 for the plaintiff. (Id. at 8). The court mailed the judgment to the first property, which the postal service returned as undeliverable. (Id.).

Motion to Vacate

Nine months later, the defendant filed a motion to vacate judgment under Rule 2-535(b) based on improper service. He stated that his address differed from the two properties where the plaintiff attempted service. The defendant had lived in Virginia for over two years, most of the time during the court proceedings. He stated he did not receive the email and provided possible technological reasons. The defendant said he learned of the judgment when someone told him the plaintiff had said the defendant owed him money. The court denied the motion as untimely. (Id. at 9).

The plaintiff filed a motion to set aside judgment under Rule 2-535 and CJP 6-408, arguing a mistake. The plaintiff opposed the motion, arguing that she complied with the alternative means of service of process and attached several emails sent to the defendant by the plaintiff and the court. The court denied the motion, and the defendant appealed. (Id. at 10).

Appellate Court of Maryland

In Maryland, service of process is under Maryland Rule 2-121. That Rule provides: 

(a) Generally. — Service of process may be made within this State or, when authorized by the law of this State, outside of this State (1) by delivering to the person to be served a copy of the summons, complaint, and all other papers filed with it; (2) if the person to be served is an individual, by leaving 11 ‒Unreported Opinion‒ a copy of the summons, complaint, and all other papers filed with it at the individual’s dwelling house or usual place of abode with a resident of suitable age and discretion; or (3) by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting: “Restricted Delivery—show to whom, date, address of delivery.” * * * 

(b) Evasion of service. — When proof is made by affidavit that a defendant has acted to evade service, the court may order that service be made by mailing a copy of the summons, complaint, and all other papers filed with it to the defendant at the defendant’s last known residence and delivering a copy of each to a person of suitable age and discretion at the place of business of the defendant. 

Alternative Means of Service of Process

The Rule continues:

(c) By order of court. — When proof is made by affidavit that good faith efforts to serve the defendant pursuant to section (a) of this Rule have not succeeded and that service pursuant to section (b) of this Rule is inapplicable or impracticable, the court may order any other means of service that it deems appropriate in the circumstances and reasonably calculated to give actual notice. 

(d) Methods not exclusive. — The methods of service provided in this Rule are in addition to and not exclusive of any other means of service that may be provided by statute or Rule for obtaining jurisdiction over a defendant.  (Id. at 11-12).

Under Rule 2-121(c), before granting alternative means of service of process, the court must find that the plaintiff has proven two things: (1) that she has made good faith efforts to serve the defendant under Rule 2-121(a); and (2) that service of process under Rule 2-121(b) would be inapplicable or impracticable. If the plaintiff makes such a showing, the court is free to customize a method of service of process based on the facts and circumstances, restricted only by the need to be “reasonably calculated to give actual notice” to the defendant. (Id. at 12).

Insufficient Search

The Appellate Court concluded that the plaintiff’s investigation to determine the defendant’s address was less than thorough. The plaintiff also had other avenues to find out the defendant’s address or to serve him with process. Both parties served on the board of an organization as president and treasurer. The plaintiff did not demonstrate that she used this connection to aid the attempt to serve the process. The defendant also stated that the board members knew his tax preparation business, and information about its location and resident agent is available online. As a result, the Appellate Court concluded that the plaintiff did not make good faith efforts to serve process on the defendant. (Id. at 20-21).

The plaintiff also failed to demonstrate the inapplicable or impractical component under the Rule. Nothing in the record suggested that serving process on the defendant at his business would have been inapplicable or impractical. (Id. at 21-22). Because the service of process was improper, the circuit court did not have personal jurisdiction over him, and the Appellate Court reversed the judgment. (Id. at 24).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Alternative Means of Service of Process

Unsurprisingly, the Appellate Court was unimpressed with the plaintiff’s attempts to locate the defendant. Although the plaintiff hired a company to find the defendant, it is puzzling how the only information that the plaintiff received was two residential addresses that were not correct, and no information concerning the defendant’s business.

What can plaintiffs learn from this court opinion? The court expects a thorough search. In many cases, that will demonstrate to the court that the plaintiff searched for all information available through the internet, and through any persons known to the plaintiff who may have information about the defendant’s whereabouts. Hiring a good investigator with access to databases that may not be public is also a good option for plaintiffs. The plaintiff should document all of the above and submit it to the court regarding any request to allow alternative means of service of process.

Following these steps should ensure that an appellate court would uphold any alternative means of service approved by the circuit court.

You can also read other Blog posts on procedure.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

This case involves a defamation claim filed in the Circuit Court for Prince George’s County. (Op. at 1). The plaintiff repeatedly attempted service of process on the defendant at two properties without success. (Id. at 2-3). The plaintiff’s lawyer then hired a company to research the address. (Id. at 2-3).

The plaintiff then filed a motion for service of process on the defendant by email under Rule 2-121(c). The motion identified an email address that the defendant used in connection with the subject matter of the case. (Id. at 3). It also stated that a land records search for a current address was unsuccessful. (Id. at 4).

The court granted the motion, finding that the plaintiff had made a good faith effort to serve the defendant and that mailing to the last known address would be impracticable. The court specifically allowed service of process by email, mailing the documents, and leaving copies at the two properties. (Id. at 5).

The plaintiff filed an affidavit of service of process by email and certified mail. When the defendant did not respond, the plaintiff filed a request for an order of default under Rule 2-613. (Id. at 5-6).

Default

The court entered an order of default and sent notice of the order and a hearing to the first property. (Id. at 7). These papers were returned undeliverable. (Id. at 7-8).

The court held an ex parte hearing on damages and entered a judgment of $75,000 for the plaintiff. (Id. at 8). The court mailed the judgment to the first property, which the postal service returned as undeliverable. (Id.). 

Nine months later, the defendant filed a motion to vacate judgment under Rule 2-535(b) based on improper service. He stated that his address differed from the two properties where the plaintiff attempted service. The defendant also said that he lived in Virginia for over two years, most of the time during the court proceedings. He stated he did not receive the email service of process and provided possible technological reasons. The defendant said he learned of the judgment when someone told him the plaintiff had said the defendant owed him money. The court denied the motion as untimely. (Id. at 9).

The plaintiff filed a motion to set aside the judgment under Rule 2-535 and CJP 6-408, arguing a mistake. The plaintiff opposed the motion, arguing that she complied with the alternative service and attaching several emails sent to the defendant by the plaintiff and court. The court denied the motion, and the defendant appealed. (Id. at 10).

Appellate Court of Maryland on Service of Process by Email

Before the Appellate Court addressed whether the plaintiff established grounds for alternative service, the court discussed the defendant’s argument that email service is not allowed under Rule 2-121. The defendant provided no support for his argument. (Id. at 13).

The Appellate Court did not locate any Maryland decision on this issue. The court noted that Rule 2-121(c) provides that the court may order any other means of service deemed appropriate in the circumstances and reasonably calculated to give actual notice. The court then concluded that this language permits service by email service of process in proper circumstances. (Id. at 14).

The Appellate Court found persuasive other courts that have determined that email is a proper method of alternative service when conventional methods have failed, and the plaintiff has shown that email is reasonably calculated to give the defendant notice. (Id. at 14-16). 

The Appellate Court’s ruling underscores the legal system’s flexibility. Accordingly, it affirms that a court has the discretion to authorize alternative service of process by email under Rule 2-121(c) in the appropriate case.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Service of Process by Email

The court’s decision to recognize email as an appropriate alternative service of process in Maryland is a significant legal development. Email has become a powerful tool to ensure a defendant receives actual notice in today’s communication landscape.

However, the court concluded that this was not an appropriate case for alternative means of service. I discuss that holding in Part 2 of this Blog post.

Actual Notice

Because of its rulings, the Appellate Court did not need to address the defendant’s contention that he did not get actual notice by email. However, this is an interesting issue that could arise in other cases. After all, actual notice, which means the defendant is aware of the legal proceedings and their implications, is the goal of the service of process.

The evidence in this case indicated multiple email attempts at service of process by email by the plaintiff and the court.

Defense Contentions

The defendant claimed he did not get the email. He identified several possible reasons, including (1) possible filtration into Spam or Junk mail due to virus protection settings; (2) the possibility of his Internet provider virus protection blocking emails with large attachments; (3) rules for mailbox folders may have sent the email to a folder instead of his inbox; and (4) his Outlook email client may have been offline due to intermittent issues with internet connection, necessitating the exchange of routers several times. (Id. at 9).

These reasons raise questions. 1 -The defendant did not state whether he goes through junk emails to determine if any legitimate emails landed there or the length of time that junk emails stay in his email system. 3 should result in the emails being in his system. 2 and 4 will often result in the sender receiving an error notice. However, there is no mention of that happening here.

When a court allows email service of process on a defendant, the court must scrutinize the defendant’s claim that they did not receive emails. This commitment to upholding proper service is essential for the future of legal proceedings.

You can also read other Blog posts on procedure.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The plaintiffs brought this medical malpractice case to the Circuit Court for Harford County. Two days after surgery, the plaintiffs’ family member tragically died from a pulmonary embolism (PE). The plaintiffs allege that the surgeon and hospitalist were negligent in failing to prevent, diagnose, and also treat the pulmonary embolism. (Op. at 1).

The day after the surgery, the patient nearly fainted, and his condition then deteriorated quickly. He had abnormal vital signs. The hospitalist believed the patient was dehydrated and consequently prescribed fluids. Expert testimony at trial stated that a small pulmonary embolism probably caused the deterioration, which preceded the larger PE that was fatal the next day. (Id. at 3-4).

The next morning, the vital signs had improved but were still abnormal. The hospitalist then ordered several tests. That afternoon, the patient was found unresponsive and could not be resuscitated. (Id. at 4-5).

The plaintiffs allege that the surgeon should have prescribed blood thinner medicine to protect against blood clots instead of using the less effective compression stockings. The hospitalist also should have diagnosed the blood clot and administered blood thinners to prevent the PE. (Id. at 5).

The jury found for the plaintiffs against the hospitalist but not against the surgeon and awarded just over $1.2 million. The hospitalist subsequently moved for a new trial, alleging that the circuit court deprived him of a fair and impartial trial by disparately treating the doctors. He is black, and the surgeon is white. The circuit court denied the motion. The hospitalist then appealed. (Id. at 1).

Appeal on Judge Bias

On appeal, the hospitalist firstly argued that the circuit court erred in making three evidentiary rulings against him:

1. Preventing him from explaining that he was testifying remotely because he had to take care of his sick wife and young kids.
2. Allowing cross-examination about the patient’s condition after it was too late to act
3. Allowing examination on the conversation in which he asked the surgeon if he thinks the patient will sue them. (Id. at 12).

Secondly, the hospitalist asserted that erred by treating him differently from the surgeon:

1. The surgeon was able to say he became a doctor due to the death of his parents.
2. He did not have to answer questions about the patient’s condition after it was too late to act.
3. He did not have to answer questions about the conversation about getting sued.

The hospitalist also claimed that the circuit court admonished him in front of the jury for unresponsive testimony but did not do so when the surgeon was unresponsive. (Id. at 12-13). The hospitalist argued that the cumulative effect created an appearance of partiality and deprived him of a fair trial. The hospitalist did not argue that the circuit court’s conduct was intentional but that it still must be viewed as implicit racial bias. (Id. at 13).

Appellate Court of Maryland

The Appellate Court first examined whether the evidentiary rulings were within the discretion of the circuit court and concluded they were, as follows:

1. Reason for testifying remotely

The medical condition of the hospitalist’s wife was not relevant to the plaintiff’s claims against him and also could have engendered sympathy for him. (Id. at 23-26).

2. The patient’s condition after it was too late to act

The note was relevant for other reasons. The hospitalist had testified about his care of the patient that day and the death. (Id. at 26-28).

3. Conversation about being sued

The conversation went to the hospitalist’s credibility and memory of the events. (Id. at 28-31).

Preservation

The appellate court then found that the hospitalist did not preserve the claim that the circuit court judge made the rulings with racial bias.

1. Surgeon’s reason for becoming a doctor

The hospitalist did not object or move to strike the answer. (Id. at 31-33).

2. The patient’s condition after it was too late to act

The hospitalist did not raise the fact that the court had made him testify about that day but was sustaining the surgeon’s objection to testifying on it. (Id. at 33-34).

3. Conversation about being sued

The hospitalist objected to the question asked of the surgeon. Still, he did not raise with the circuit court judge that he had ruled differently when the plaintiff’s lawyer asked the hospitalist. (Id. at 34-35).

The hospitalist also failed to raise the claim of racial bias when he perceived the trial judge treated him differently in admonishing him to answer the questions. (Id. at 36-38).

At the close of evidence, the hospitalist sought to testify again to explain the reason for testifying remotely. He mentioned some ways the judge had treated him differently but did not ascribe them to racial bias. He also did not ask for any relief relating to the testimony when it was too late to act and about being sued. (Id. at 39-41).

Rationale

The Appellate Court explained the importance of the preservation requirement, a key aspect of legal proceedings that ensures fair and meaningful appellate review:

Our preservation requirements give the litigants and the trial court a chance, as the trial occurs, to examine the claim and the proceedings, to explain, to reconsider, and to move for (and grant or deny) substantial relief. For us, our preservation requirements enable fair and meaningful appellate review of what the trial court did (or did not do) in response to the charge of bias. (Id. at 41-42). 

The Appellate Court added that it saw nothing in the record that rebutted the presumption that the trial judge acted impartially. (Id. at 42).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Judge Bias

It is not an easy thing to raise racial bias with a trial judge. In addition, it is not the kind of thing that is immediately obvious. However, as the appeal court noted, when one ruling builds upon another, it becomes time to make the claim or forgo it entirely.

The trial judge deserves an opportunity to respond to the assertion of bias and correct any actions taken. This is a fundamental aspect of the legal process, ensuring that all parties have a fair chance to present their case and that the trial is conducted in a just and impartial manner. 

The preservation principle relied upon in this case was already well established. The hospitalist had little chance of succeeding in this claim on appeal, having failed to follow the clear requirements below. This highlights the importance of adhering to procedural rules in legal proceedings, as failure to do so can significantly impact the outcome of a case.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background on Plaintiff’s Forum in Medical Malpractice

The plaintiffs, residents of Talbot County, brought a medical malpractice case and chose the Circuit Court for Baltimore City as the forum against three corporate defendants and four individual doctors. The fifteen-year-old plaintiff had shortness of breath and dry coughing. Following an x-ray, the doctor diagnosed the plaintiff with pneumonia and prescribed antibiotics. (Op. at 1-2).

The plaintiff’s symptoms continued. The defendants then diagnosed the plaintiff with heart failure and septic shock. Four months later, the plaintiff received a heart transplant. (Id. at 2).

The defendants motioned to transfer the venue to Talbot County under Rule 7-237(c). The circuit court held a hearing and applied the forum non conveniens factors. The judge concluded that the factors weighed heavily and strongly favored transfer. (Id. at 3).

The plaintiffs appealed, and the Court of Special Appeals reversed. Then, the defendants appealed. (Id. at 5).

Court of Appeals Majority

The standard of review was an abuse of discretion. (Id. at 6). Rule 2-327(c) provides: 

On motion of any party, the court may transfer any action to any other circuit court where the action might have been brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice. 

It was undisputed that the medical malpractice plaintiffs could have chosen as their forum Baltimore City or Talbot County. The circuit court must give deference to the plaintiff’s choice of court. The deference shrinks if that forum is not the plaintiff’s residence. (Id. at 11).

The court may only transfer the case if it finds that the factors strongly weigh in favor of transfer. A tie requires no transfer. (Id. at 19). The inquiry is fact-driven, and there are few generalizations. (Id. at 20).

The circuit court found that transfer would be convenient for most of the ten parties. Seven were in Talbot County. The judge concluded that this case was one of the strongest for transfer. (Id. at 23-24). Although plaintiffs submitted a list of over 500 potential witnesses, the circuit court found that the primary and key witnesses were in Talbot County. The CA could not find that the circuit court’s analysis was unreasonable. (Id. at 25).

The CA also concluded that the circuit judge reasonably found that the public interest of justice weighed in favor of transfer. The caseload burden was higher in Baltimore City than in Talbot County. (Id. at 26-27). Accordingly, the CA reversed the CSA. (Id. at 28).

Dissent

Three of the seven judges dissented. The dissenters did not believe that the medical malpractice plaintiff’s choice of forum receives less deference if they do not live there. (Dis. at 1). In addition, much of the negligent conduct occurred in Baltimore, and many damage witnesses were in Baltimore. (Id. at 2).

The court should not hold a plaintiff’s residence against them. Plaintiffs are entitled to select a venue that they find convenient. When three defendants located in Baltimore moved to transfer the case to Talbot County, the circuit court did not deny it because they were not in Talbot County. (Id. at 5-6).

The dissent also believed that the interests of justice factor did not weigh in favor of either jurisdiction. The plaintiffs alleged multiple torts in both jurisdictions. (Id. at 6-9).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Plaintiff’s Forum

One of the main differences between the majority and the dissent was how to treat the plaintiffs’ right to choose the forum. In addition, the opinions in this case show how different judges can seize on various facts and apply factors differently in reaching their conclusion.

Eleven judges grappled with the transfer question in this case, resulting in six ruling against transfer and five in favor. The contentious nature of this case underscores the complexity of forum non-conveniens transfer questions and the significant role of judicial interpretation in such matters. Each judge’s interpretation of the facts and application of the transfer factors played a crucial role in the final decision.

As a result, the future of forum non-conveniens transfer questions will likely continue to be highly fact-driven and significantly depend on the judge conducting the analysis or reviewing the analysis on appeal. This case sets a precedent that will shape the legal landscape for similar cases in the future, underlining the profound impact of the Court of Appeals’ decision.

The Real Issue

You may be confused if you have been paying attention to the parties’ arguments. The plaintiffs who lived in Talbot County chose Baltimore City as their forum. Baltimore City defendants then moved to transfer the case to Talbot County. If this transfer concerns the parties’ convenience, why did everyone try to move the case to a faraway court?

It is because the choice of forum was not about convenience. Generally, urban juries are more favorable to medical malpractice cases than rural juries. That explains why the plaintiffs wanted the case in Baltimore City, and the defendants wanted the case in Talbot County. They were all willing to travel to get what they wanted. All parties then argued that convenience factors favored the result they wanted. This strategic maneuvering sheds light on the complex tactics involved in legal battles, and it also explains why they fought this issue through two appeals that lasted over two years.

The court docket shows that the defendants won the trial in Talbot County, which not only signifies the end of this particular legal battle but also serves as a practical example of how the forum non-conveniens doctrine can be applied in Maryland medical malpractice cases.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background on Medical Injury in Medical Malpractice

The plaintiffs filed a complaint in the Circuit Court for Allegany County relating to injuries received while at a nursing care facility after back surgery. There were two incidents. The first occurred when the plaintiff fell out of bed while sleeping. Her allegation was that the defendant failed to secure the mattress to the frame. The second instance occurred when the defendants attempted to get the plaintiff from the floor back into the bed. A nurse used a mechanical lift to drop the plaintiff back onto the floor again. (Op. at 2).

The defendant filed a motion to dismiss, arguing that the plaintiffs failed to file their claims first in the HCADRO under CJP 3-2A-04(a)(1)(i). (Id. at 3). The circuit court granted the motion to dismiss. The Court of Special Appeals affirmed, and the plaintiffs appealed to the Court of Appeals. The Court of Appeals, in a significant decision, reversed some and upheld other of the lower courts’ rulings, establishing a precedent for similar cases in the future. (Id. at 5).

Court of Appeals

The plaintiffs argued that their claims were not for medical negligence. (Id.). Maryland’s Health Claims Act has several requirements for a medical malpractice lawsuit. A plaintiff claiming medical malpractice for “medical injury” committed by a “health care provider” seeking more than $30,000 in damages must first file in HCADRO. CJP 3-2A-02(a)(1). A medical injury is an injury “arising or resulting from the rendering or failure to render health care.” CJP 3-2A-01(g).

Prior Cases

The CA discussed prior Maryland cases.

Nichols v. Wilson, 296 Md. 154 (1983): Plaintiff alleged Dr. slapped her during suture removal. It was not a medical injury because it did not involve a professional’s duty to exercise care.

Jewell v. Malamet, 322 Md. 262 (1991): Plaintiff claimed the doctor sexually assaulted her during a medical exam. The doctor claimed it was a legitimate examination. The court required HCADRO filing because it could not rule out the involvement of the professional standard of care for examination.

Goicochea v. Langworthy, 345 Md. 719 (1997): Plaintiff sued for battery for the way a doctor conducted a hernia exam. The plaintiff had to file in HCADRO because the plaintiff failed to show the doctor’s actions had no conceivable medical validity.

Afamefune v. Suburban Hosp., Inc., 385 Md. 677 (2005): A psychiatric patient claimed that negligence resulted in sexual assault by another hospital patient. HCADRO filing is not required because the plaintiff did not allege a breach of professional standard of care, and it did not happen during the rendering of medical care.

Swam v. Upper Chesapeake Med. Ctr, Inc., 397 Md. 528 (2007): A hospital visitor alleged she was stuck by a hypodermic needle when she put her hand on a counter in a waiting room next to an operating room. HCADRO filing is unnecessary because the claim concerns waste disposal, not medical treatment.

The CA summarized: For the HCA to apply, a plaintiff must allege a breach of a professional duty of care while rendering medical care. (Id. at 14).\

Rulings on Medical Injury in Medical Malpractice

The CA first examined each of the counts of the plaintiffs’ complaint. In count one, the plaintiffs alleged negligence. The plaintiff was sleeping and not receiving any medical care when the mattress on her bed detached, and she fell. No healthcare provider was present. An expert witness would not be helpful to explain why the mattress became detached from the bed. HCADRO filing was not necessary. (Id. at 16-18).

Count two alleged that the defendant was negligent in supplying a malfunctioning lift and dropped the plaintiff onto the floor.  The CA concluded that this claim would require a detailed examination of medical procedures. The case would scrutinize the nurse’s operation of the lift. The plaintiff had to file this claim in HCADRO.

Count three for respondeat superior similarly had to be filed in HCADRO first because the same proof that count two required for the employee would be part of the employer’s liability in count three.

The CA allowed the remaining claims of breach of contract, Consumer Protection Act violation, and loss of consortium. Plaintiffs must generally file closely related claims in HCADRO to avoid piecemeal litigation. However, the professional claims were now time-barred, so there would be no piecemeal litigation here. (Id. at 21-22).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Medical Injury in Medical Malpractice Cases

The Court of Appeals, in my opinion, arrived at the correct conclusion in this case. The ongoing debate over what constitutes a medical injury, necessitating a claim in HCADRO, is a testament to the multiple interpretations of the law. The extensive discussions in the courts over the years provide parties with various aspects to support their desired outcome.

Potential Arguments

The following observations should help determine the medical injury issue when examining these cases. The plaintiff’s choice of claims and characterization of the allegations are not dispositive. In other words, a plaintiff’s decision to pursue intentional torts does not automatically mean it is not a medical injury. In addition, in this case, the plaintiff’s allegation that the lift malfunctioned was not enough to take it out of medical injury. The court recognized that a healthcare provider was operating the machine. As a result, the case could involve assessing whether that healthcare provider complied with a professional standard of care when operating the lift. The ‘professional standard of care’ refers to the level of care and skill that a reasonably competent healthcare professional in the same field would provide under similar circumstances.

Similarly, a plaintiff bringing an action for negligence does not automatically mean that it is a medical injury. In this case, negligence may have resulted in the mattress not being attached to the bed. However, the absence of a professional standard of care involvement led the court to conclude that the plaintiff did not have to file the case in HCADRO.

Focusing on whether the defendant was providing medical care may not lead to consistent results. The defendant may argue that it provided medical care to the plaintiff because the plaintiff was in the hospital or other medical facility. The plaintiff may say that the defendant did not give medical care concerning the specific incident that caused the injury.

Standard

The most reliable way to make the medical injury determination is to examine the plaintiff’s allegations and determine whether the pursuit of the claim or defense of the claim is likely to properly involve a medical expert witness who gives an opinion on a professional standard of care. HCADRO is specifically where plaintiffs have to file claims for medical malpractice for medical injury, along with a certificate of a qualified expert.

For discussion of another case on medical injury, read the Blog post on HCADRO Medical Injury: Waugh v. Dimensions.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background on Revisory Motion for Discovery Sanction

The plaintiffs filed this medical malpractice case in the Circuit Court for Baltimore City, alleging that the defendants’ negligence resulted in the death of their family member. However, a crucial point in this case was when, during discovery, the plaintiffs failed to respond to discovery requests. This failure, as the court later ruled, had significant implications. The defendants moved to compel responses, and the court granted the unopposed motion. The plaintiffs still did not respond, leading to the defendants moving for sanctions. The court entered an order precluding the plaintiffs from introducing evidence to support their claims. The plaintiffs sought revision of this order but were unsuccessful. (Op. at 1).

The hospital then moved for summary judgment. Several months later, the plaintiffs filed a second amended complaint with no new causes of action. The circuit court granted the defense motion. (Id. at 3).

Fifteen days after summary judgment for the hospital, the plaintiffs filed a motion asking the court to use its revisory power under Rule 2-535(b) and (d). The plaintiffs asked the court to allow the second amended complaint to proceed, arguing that its filing precluded summary judgment. The court denied the motion. (Id.).

The plaintiffs then motioned to alter or amend the judgment under Rule 2-534. This motion was made 102 days after the hospital summary judgment. The court denied this motion, and the plaintiffs appealed 17 days later. The denial of this motion meant that the original judgment, which favored the hospital, remained unchanged, further diminishing the plaintiffs’ chances of a successful outcome.

Appellate Court on Revisory Motion for Discovery Sanction

The Appellate Court noted that an appeal from the denial of a revisory motion is not an appeal from the judgment itself. (Id. at 7). Suppose the party files the revisory motion within 30 days. In that case, the circuit court has broad power to revise the judgment under Rule 2-535(a). Suppose the party files the motion after 30 days. In that case, the court may only revise the judgment if there is a clear and convincing showing of fraud, mistake, or irregularity, or failure of an employee of the court or of the clerk’s office to perform a duty required by statute or rule under subsection (b). The party moving to set aside the judgment must act with ordinary diligence, in good faith, and has a meritorious defense or cause of action.”  (Id. at 8-9). 

The plaintiffs filed their motion more than 30 days after the entry of summary judgment against the hospital. (Id. at 9). They argued that there was a procedural irregularity. They had to show that there was a failure to follow the required procedure or process. (Id. at 9-10.) 

The court rejected the argument that the plaintiffs’ second amended complaint precluded the summary judgment ruling. The circuit court had previously ruled as a discovery sanction that the plaintiffs could not support their claims. This sanction concerned claims, not the version of the complaint. The plaintiffs could not resurrect the right to put on evidence by filing another amended complaint. As a result, summary judgment was proper for the hospital even after filing the second amended complaint. (Id. at 11).

No Procedural Irregularity

The Appellate Court found no procedural irregularity. The court held a hearing on the motion for summary judgment, as requested, and properly entered summary judgment. (Id. at 12-13).

The court also held that the hospital’s failure to file an answer to the second amended complaint was not a procedural irregularity. Rule 2-341(a) does not require a party to file an answer to an amended complaint. The old one governs if the defense does not file a new answer. In addition, a party cannot create a procedural irregularity; only the court can. The court’s interpretation of Rule 2-341 (a) and its clarification that only the court can create a procedural irregularity are important for understanding the legal process in this case.

Last, the Appellate Court rejected the plaintiffs’ claims that the circuit court’s failure to hold a hearing on the revisory motion deprived the plaintiffs of due process. Revisory motions are not dispositive motions that require a hearing. (Id. at 15-16).

The court concluded that the circuit court did not abuse its discretion in denying the plaintiffs’ second revisory motion.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec

Johnson v. Sullivan started poorly for the plaintiffs and would not improve. Failing to respond to discovery and a motion to compel resulted in a court order that effectively ended the case. 

Despite the plaintiffs’ efforts, including filing untimely revisory motions that sought relief not available under the rules, the outcome of the case remained unchanged. The appeal from the denial of the revisory motion had virtually no chance of success, further highlighting the futility of the plaintiffs’ actions in altering the course of the case.

We do not know why the plaintiffs did not respond to the discovery and the motion to compel. But that is where the plaintiffs lost this case. Their failure to comply with these procedural requirements significantly weakened their position, and everything that followed had little chance of changing the outcome.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

Following plastic surgery, the plaintiff developed bilateral compartment syndrome in his legs. Subsequently, he underwent 16 surgeries and incurred over $4 million in medical bills. (M.O. at 2).

Afterward, on December 9, 2022, the plaintiff filed a medical malpractice case against numerous parties, including Dr. Markmann and Northwest Hospital. The plaintiff then filed a motion to amend his complaint to allege that the doctor was the hospital’s ostensible/apparent agent. (Id. at 1).

In the initial discovery, the hospital produced a document stating that the doctor was the supervisor for the physician assistants providing care to his patients. However, this disclosure was made several months after the deadline for joining new parties or amending pleadings. The plaintiff then filed the motion to amend his complaint five days after the disclosure. (Id.).

US District Court

The court noted that the standard for allowing a motion to amend complaint beyond the deadline in the scheduling order is good cause under F.R.C.P. 16(b)(4). Good cause exists if a party cannot reasonably meet deadlines despite the party’s diligence. (Id. at 3). The court is to consider whether the moving party acted in good faith, the length of the delay and its effects, and whether the delay will prejudice the non-moving party. (Id. at 4).

If the court is satisfied that good cause exists, it applies the Rule 15(a) standard, which directs the court to give leave when justice so requires freely. (Id.)

Ruling on Motion for Leave to Amend Complaint

The court found good cause for amending the complaint. The information for the amendment came from the opposing party’s discovery responses, and the plaintiff received it after the amendment deadline. (Id.). Moreover, the plaintiff filed the motion five days after learning the information. There was no lack of diligence. The court’s decision reflects its commitment to fairness and justice.

The court also found that the motion meets the Rule 15(a) liberal amendment standard. The hospital argued that the amendment was unfairly prejudicial. The defense argued that the parties had completed depositions, and consequently, the defense could not now ask questions about the new apparent agency assertion. (Id. at 5-6).

The court noted that the defense could seek to reopen the depositions. Discovery is ongoing, and the court has set no trial date. The court concluded that the nature of the litigation has remained the same. (Id.).

The hospital also argued that amending the complaint would be futile. Amendments are futile only when they are insufficient or frivolous on their face. (Id. at 6). The hospital was trying to prove it would win on the issue rather than showing that the amendment was frivolous, and the court rejected its argument. (Id.). The court allowed the amendment. (Id. at 7).

Commentary by the Baltimore Medical Malpractice Lawyer on Motion for Leave for Amending Complaint

The plaintiff certainly deserved leave for amending the complaint in this case. The court could reopen depositions to explore the apparent agency issue, and there would be no substantial delay in the litigation.

One of the most important factors was that the plaintiff acted quickly to amend once he learned of the new information. Specifically, the plaintiff filed his motion in just five days, demonstrating his diligence and commitment to the case.

In many court opinions, the situation is the opposite. They often involve a party that missed one or more deadlines and has no justification for doing so. 

When a party shows the court that they are on top of the litigation and diligently pursuing it, they place themselves in the best possible position for relief from the court.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The plaintiff underwent surgery on his neck in which the defendant neurosurgeon removed discs and fused vertebrae. (Op. at 1, 3). An infection developed, and the plaintiff had neck pain and limited range of motion. (Id. at 3).

The plaintiff filed suit in the Circuit Court for Baltimore County. The plaintiff asserted that the defendant breached the care standard and failed to obtain informed consent. (Id. at 4). The trial began on Tuesday, May 17. During jury selection, the judge informed the jury that it expected the trial to take seven days and would finish no later than Wednesday, the 25th, shortly before Memorial Day weekend. (Id. at 4).

The court submitted the case to the jury on Monday, May 23, a day before the court had predicted. (Id. at 5). On the third day of deliberations, at 2:00 pm, the jury sent the court a note asking what would happen if the jury could not decide. (Id. at 11). 

The court proposed giving the jury a “modified Allen charge” to encourage them to resolve, and limited deliberations to an additional hour to see if they could agree upon a verdict. No one discussed addressing the jury’s specific question as to what would happen if they failed to reach a verdict, nor did they discuss the precise wording of the modified Allen charge. (Id.).

The defense objected to the charge and proposed instructing the jury to return to deliberations and allowing them to deliberate until the end of the day. (Id. at 12).

Instructions

At 2:15 pm, the court instructed the jury, first responding to their question. The court’s response to the jury’s question was clear and decisive: “If eventually the jury is unable to reach a unanimous decision, a mistrial will be declared, and the parties would decide then if they were to try the case again or take some other actions. It would be up to them.” This response set the stage for the court’s subsequent actions.

Then the court gave a modified Allen charge from the Maryland pattern jury instructions. (Id.).

The court then issued a directive to the jury: “So I’m going to ask you to deliberate another hour. I know that you have been at it pretty hard. We have been in the courtroom and have heard you from time to time and can’t hear what you say. We just hear words being said…. And we will see if you can reach a verdict today…. I’m not going to ask you to return tomorrow, but I do want you to try again.” This instruction could have influenced the jury’s decision-making process.

An hour later, the jury reported its verdict. The jury found the defendants negligent and awarded $329,000 in damages. The jury also found for the defense on the informed consent claim. (Id.). 

The doctor appealed, and the Court of Special Appeals reversed, finding that while the circuit court’s giving of the modified Allen charge was appropriate, the court abused its discretion by limiting deliberations in telling the jury that deliberations would continue just one more hour. The plaintiff then appealed to the Court of Appeals. (Id. at 15).

Court of Appeals on Limiting Deliberations

On appeal, the defense contended the circuit court abused its discretion in granting the modified Allen charge and argued that imposing a one-hour deadline on deliberations was coercive. (Id. at 33).

The defense argued that the jury did not state it was deadlocked and asked what would happen if it did not reach a verdict. However, the Court of Appeals noted that there is no requirement of deadlock for an Allen charge. (Id.).

The court stated that a trial judge’s decision to keep the jury informed of the timetable for the trial does not necessarily convert an appropriate Allen charge into a coercive one. (Id. at 36). On the contrary, leaving the jurors in the dark would have likely raised concerns about when they would be allowed to stop deliberating. It also might have served to coerce a verdict to get to the end of jury service. (Id. at 37). Moreover, the trial judge specifically did not insist on a verdict. The judge said we’ll see if you can reach a verdict. (Id. at 38). The Court of Appeals concluded the trial court did not err. (Id. at 39).

Two judges dissented, concluding that adding the one-hour time limit to the Allen charge was coercive. (Dis. at 1).

Commentary by the Baltimore Medical Malpractice Lawyer on Limiting Deliberations

The majority and dissent present different views on the appropriateness of the trial judge’s statement that the jury would be given one more hour to deliberate. They each take different views of coerciveness. The majority focused on the trial court’s statement to the jury that their service would end that day. With only two hours left, the majority believed that sending the jury back to deliberate without any timing comment could be coercive. The jurors might wonder if they would have to return the next day if they did not return a verdict.

The dissent believed that telling the jury they only had an hour to deliberate was coercive.

It is impossible to say who is right. Ideally, the court is not limiting deliberations by telling the jury when their deliberations will end. However, the court should balance that against the schedule they have already told the jury. In this case, there was repeated emphasis from the beginning of the trial that this would be the last day of jury service. The jury had repeatedly raised concerns about when their service would end. There were only two hours left in the day. Under these circumstances, I don’t believe the trial court’s sending the jury back for one more hour of deliberations was improper, particularly since the court did not tell them to reach a verdict but instead said we will see if you can. 

Regardless of how you view this issue, judicial economy favors upholding the trial court’s decision.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background on General Negligence Jury Instructions

The plaintiff underwent surgery on his neck in which the neurosurgeon removed discs and fused vertebrae. (Op. at 1,3). An infection developed, and the plaintiff developed with neck pain and limited range of motion. (Id. at 3).

The plaintiff filed suit in the Circuit Court for Baltimore County. The plaintiff asserted that the defendant breached the care standard and failed to obtain informed consent. (Id. at 4).

Jury Instructions

At trial, when the circuit country instructed the jury, it primarily used the pattern jury instructions. This appeal focused on three of the instructions. The circuit court gave general instructions on negligence and foreseeability as follows:

“Negligence is doing something that a person using reasonable care would not do or not doing something that a person using reasonable care would do. Reasonable care means that caution, attention or skill a reasonable person would use under similar circumstances. A reasonable person changes conduct according to the circumstances and the danger that is known or would be appreciated by a reasonable person. Therefore, if the foreseeable danger increases, a reasonable person acts more carefully.” (Id. at 7).

The circuit court also instructed on the negligence of a healthcare provider:

“A health care provider is negligent if the health care provider does not use that degree of care and skill which a reasonably competent health care provider engaged in a similar practice and acting in similar circumstances would use.” (Id. at 8).

Defense Objection

The defense objected to the foreseeability instruction as not applicable. It also argued that it confused whether the doctor had to see into the future and, therefore, have a heightened duty to foresee a bad outcome. This potential confusion related to the informed consent claim. (Id. at 9-10).

The jury found the defendants negligent and awarded $329,000 in damages. The jury found for the defense on the informed consent claim. (Id. at 14). 

The doctor appealed the decision of the Court of Special Appeals, a higher court than the Circuit Court. The Court of Special Appeals reversed. The plaintiff appealed. The Court of Appeals, which is the focus of this post, is responsible for reviewing the decisions of lower courts and has the final say in legal matters in Maryland. (Id. at 15).

Court of Appeals

The general principles that govern negligence also apply to medical malpractice claims. The standard of care in a negligence action is whether a reasonable person in similar circumstances. (Id. at 18). Accordingly, the standard of care for a doctor is a reasonably competent practitioner in the same specialty in similar circumstances. (Id. at 19-20).

The Court of Appeals noted that it had never held that giving general negligence instructions in a medical malpractice case is an error. (Id. at 21). The court stated that general negligence instructions are not wrong or misleading. However, it noted that it is helpful to expressly state that the general negligence instructions are a preface to the particular medical malpractice instructions. (Id. at 25).

Prejudice

The court then turned to whether the defendants established the instruction had prejudiced them. (Id.). The court found that the existence of prejudice was close to nil. No one suggested that the defendant was to be measured by a reasonable person. On the contrary, lawyers for both sides repeatedly said that the standard was a reasonable doctor. (Id. at 26). In any event, the general negligence instruction is a lesser standard than the doctor’s standard so that the application would have benefitted the defendant. (Id. at 27-28).

The court then turned to the foreseeability instruction. The court again noted that no decision had banned the general foreseeability instruction in a medical malpractice case (Id. at 30). In addition, it caused no prejudice. The defense’s concern was confusion with the informed consent claim. However, the defense prevailed on that claim. (Id. at 31-32).

Accordingly, the court’s comprehensive analysis concluded that the circuit court did not abuse its discretion in giving the general negligence jury instructions. Nor did the defense establish the prejudice required to overturn a jury verdict, demonstrating the court’s thoroughness and commitment to justice. (Id. at 38).

Commentary by the Baltimore Medical Malpractice Lawyer on General Negligence Jury Instructions

This decision was straightforward for the Court of Appeals. At trial, the defendant did not even complain about the general negligence instruction on the standard of care. Only after winning a surprising victory in the Court of Special Appeals did the defendant try to make that issue the more important of the two negligence instruction issues. The Court’s clear and decisive ruling serves as a testament to the fairness of the legal process. (Id. at 19).

The circuit court’s instructions clearly showed that the specific instruction on the doctor’s standard of care applied the general negligence standard. Moreover, throughout the trial, lawyers for both sides repeatedly applied the doctor-specific standard.

As for the foreseeability instruction, the only concern the defense expressed at trial was confusion about the informed consent claim. Since the defense won that claim, there is no possibility of prejudice.

The Court of Appeals quickly dispatched these issues. In part 2 of this Blog post, I will discuss the Allen charge issue, another important aspect of this case. The Allen charge, also known as the ‘dynamite charge ‘, is a supplemental jury instruction given when the jury is deadlocked and unable to reach a verdict. I will explore its implications for medical malpractice law.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

In part 1 of this blog post, I discussed the evidentiary requirements for the defense to raise the negligence of nonparty doctors.

Factual Background

The plaintiff had a cancerous tumor in his kidney and lymph node. The urologist removed the kidney but not the lymph node because of its proximity to a large blood vessel, the inferior vena cava. (Op. at 2). The oncologist administered chemotherapy over the course of four years. Ultimately, the cancerous node grew until it was inoperable. (Id. at 3).

The plaintiff filed a medical malpractice case against the radiologists who did not alert the oncologist of the growth of the cancerous lymph node at a time when they could have safely removed it. (Id. at 4). 

In discovery responses, the defendants alleged that the oncologists were negligent and had caused the plaintiff’s injuries. However, the defense expert witnesses did not opine on these matters. The defense stated it reserved the right to rely on the plaintiff’s experts. (Id. at 5). 

At trial, the defense did not call expert witnesses to give the standard of care or causation testimony concerning nonparty doctors. The trial court sustained an objection to the defense questions of the plaintiff’s expert about the standard of care for the initial urologist. (Id. at 9).

During closing arguments, the defense arguments included assertions that nonparty doctors caused the plaintiff’s injuries. (Id. at 10).

Verdict Sheet Question on Nonparty Malpractice

The court placed a question on the verdict sheet despite the plaintiff’s objection. It asked the jurors if the actions of non-defendant doctors were a substantial factor in causing the plaintiff’s injury. (Id. at 11). 

The jurors, who were responsible for determining the outcome of the case, did not follow the directions on the verdict sheet. They found the defendants had not breached the standard of care—they were supposed to stop there. Instead, they found the plaintiff was not contributorily negligent and found that the nonparty doctor’s negligent acts had been a substantial factor in causing the plaintiff’s injuries. The jury then awarded $4.8 million in economic damages. (Id. at 12).

The court advised the jurors that they had returned an inconsistent verdict sheet, saying that since the jury found the defendants did not breach the standard of care, it was unnecessary to answer the remaining questions. The court gave the jury a blank verdict sheet and sent them back to deliberate. The jury returned the sheet stating that the defendants had not breached the standard of care and did not answer other questions. The plaintiff moved for a new trial, and the court denied it. The plaintiff appealed. (Id. at 12-13).

The Court of Special Appeals, a higher court, reversed the decision of the lower court. This reversal was significant as it indicated a disagreement with the lower court’s ruling, prompting the defense to appeal the decision further. (Id. at 13-14).

Court of Appeals

The Court of Appeals first held that expert testimony is required to establish nonparty medical negligence without regard to whether a defendant raises the nonparty medical negligence as an affirmative defense or in connection with a general denial of liability. The reason is that medical negligence and causation are beyond the understanding of ordinary lay jurors. (Id. at 25).

In this case, the defendants did not identify or call expert witnesses to testify that nonparty physicians breached the standard of care or that a breach proximately caused the plaintiff’s injury. (Id. at 27). 

The court then turned to the verdict sheet. The sheet asked the jury whether specified nonparty doctors committed malpractice that was a substantial factor in causing injury to the plaintiff. Since the defense failed to present expert testimony in support of the question, the circuit court erred in submitting it to the jury (Id. at 31).

The issue was whether this error was prejudicial. The focus is on whether the mistake undermines faith in the jury’s verdict. (Id. at 32). The court found that the jury was obviously confused by the verdict sheet because they found in favor of the defendants and awarded the plaintiff $4.8 million. When completing a second verdict sheet, the jury could not put this out of their minds. (Id. at 32-33). In addition, they heard improper arguments about the negligence of nonparty doctors for which there was no evidence. The court could not conclude that the jury would have found for the defense if they had not heard the arguments against the nonparty doctors. More likely than not, the court found that the error influenced the verdict and required reversal. (Id. at 33-34).

Commentary by the Baltimore Medical Malpractice Lawyer on Verdict Sheet Question on Nonparty Malpractice

The court’s decision in this case was correct. The defense’s arguments that other doctors’ negligence caused the plaintiff’s injuries without proper evidence were indeed prejudicial. This prejudice is evident, regardless of the confusion on the verdict sheet. The defense presented the jury with an alternative explanation for the injury, unsupported by evidence. Even if they found the defendants not liable, the jury’s reasoning could have been influenced by these unsupported arguments.

Furthermore, the verdict sheet contained an inappropriate question about nonparty malpractice. This question was unsuitable for multiple reasons. Firstly, the defense failed to introduce expert evidence to support its arguments of nonparty malpractice. Even if there had been such evidence, the question would still have been inappropriate. The defendants did not file a third-party claim. Although the defense would be entitled to argue nonparty malpractice if they had put on sufficient expert testimony, there was no reason to ask the jury about it.

The question asked if the nonparty doctors were a substantial factor in causing injury to the plaintiff. The answer to this question has no bearing on the defendants’ liability. If the answer is no, the defendants can be liable or not liable. The same is true if the answer is yes. More than one tortfeasor can be a substantial factor in causing injury.

The inclusion of this question was nonsensical, and it is not surprising that it caused confusion. The court appropriately reversed the defendants’ verdict, highlighting the need for clearer legal procedures.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background on Judge Recusal

The plaintiff, born at 30 weeks gestation, now suffers from spastic diplegic cerebral palsy, a condition causing stiffness primarily in the leg muscles. His parents filed a case for medical malpractice in the Circuit Court for Baltimore City, alleging negligence before and during his delivery. This case, with its intricate medical details, presents a compelling legal challenge. (Op. at 1).

When the mother presented to the hospital for the second time for decreased fetal movement, a biophysical profile for fetal well-being scored 6 out of 10. She also had severe preeclampsia. The doctor admitted her. (Id. at 5).

At 3:30 am the following day, the fetal heart rate tracings worsened to category II. They worsened more by 7 or 8 am, indicating potential fetal distress. At 8:17 am, the doctor called for an emergency C-section, which they accomplished at 8:50 am. The Apgar scores for the baby’s condition were 2 and 6. (Id. at 5-6).

Umbilical cord gas revealed acidemia from excessively low blood pH. The plaintiff did not have any seizures, and an ultrasound of the head was normal. (Id. at 6).

The plaintiff argued that the doctor should have done the C-section by midnight, and the baby would have avoided injury. (Id. at 7). These are the facts that preceded the recusal issue.

The defense motioned to exclude the plaintiff’s standard of care and causation experts under Rule 5-702 and Daubert. The court granted the motion and then entered summary judgment for the defense. The plaintiff appealed.  (Id. at 9, 15).

Appellate Court

The Appellate Court found insufficient support for the position that fetal heart rate tracings, acidemia, nucleated red blood cell count, and neuroimaging together supported the cause of injury. The court found persuasive medical literature that states that the plaintiff’s prematurity put him at a 40-50 times higher risk for cerebral palsy than a full-term baby. (Id. at 20).

Judge Recusal

The Appellate Court then turned to the plaintiff’s claim that the trial judge should have recused himself. The plaintiff states that the judge’s wife is an ob-gyn who worked until 2020 and previously trained at and worked for Johns Hopkins. The judge failed to disclose that before issuing his ruling. (Id. at 21.) The plaintiff adds that the judge’s wife is a member of ACOG. In part 1 of this Blog post, I noted that ACOG’s literature was central to the court’s decision. ACOG is an organization with an agenda to limit and eliminate birth injury lawsuits and the damages they seek. ACOG spends millions of dollars advocating against birth injury victims.

The court examined the circumstances and concluded that there was no basis for recusal. The judge’s wife’s previous work for the defendant, which ended 30 years ago, and her retirement as an OB were deemed inconsequential.

Commentary by the Baltimore Medical Malpractice Lawyer

It is important to focus on what the court was deciding. The court addressed the effect of a relationship. The judge’s spouse trained and worked at the defendant 30 years ago and long held the same OB position as the doctor at issue but retired a few years earlier.

The court held that this relationship was not sufficient to require the trial judge’s recusal. I agree. The connection with the defendant was decades before. I don’t believe that the wife’s former occupation in the same position as the doctor in this case required recusal.

General Bias

Bias, however, is a larger question. It raises serious concerns about conscious or subconscious influences on a case. Could a spouse’s negative experience with the legal system color the judge’s thinking? Of course. Yet, there may be no mechanism to root out such bias. This example speaks of the potential dangers and limitations of the system, a matter of significant concern. (I want to be clear that I know of no such bias in this case. This example speaks of the possibilities and limitations of the system.)

Of course, it works the other way too. We could have the same conversation about a judge married to a birth injury lawyer. The point is that judges can bring potential biases from many sources and experiences, and the legal system is limited in its ability to address them. The assignment of a case to a particular judge may play more of a role in the outcome than is often realized, especially by the public. This underlines the need for vigilance and caution in the legal process.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

In part 1 of this Blog post, I discussed what happens when affidavits opposing a summary judgment motion contradict the affiant’s prior testimony.

Factual Background & Dispute of Fact

In 2000, the plaintiff underwent an aorto-bifemoral bypass graft at GBMC. This procedure created a new path around an obstructed blood vessel. (Op. at 3). Sixteen years later, the plaintiff filed a malpractice claim against the surgeon.  The complaint alleges that the doctor placed a surgical clip on the plaintiff’s right ureter, which then caused the plaintiff to start having abdominal pain in 2014. (Id. at 1, 4-5).

Discovery revealed a 2006 CT Scan of the plaintiff, which revealed kidney stones. In addition, it showed hydronephrosis, which is excessive fluid in the kidney due to urine backup. The scan also showed clips from the bypass. (Id. at 6). 

The parties filed motions for summary judgment on the statute of limitations. The defense argued that the five-year statute of limitations in CJP 5-109(a) barred the plaintiff’s claim. The defense contended that if it put a clip on the ureter in 2000, that is when the injury occurred. Additionally, the defense asserted that a CT scan 2006 showed hydronephrosis that the clip caused the plaintiff’s claim. Under this argument, the claim was barred by 2011. (Id. at 9).

Expert Affidavits

The plaintiff sought to create a dispute of fact. plaintiff’s submission of expert affidavits that contradicted their previous deposition testimony, attributing the change to a review of the entire file relating to the 2006 visit, was a significant development. The experts initially claimed in depositions that the clips caused the 2006 hydronephrosis. They now contended that the 2006 admission was not due to the defendant’s negligence but rather to kidney stones. The plaintiff argued that there was no injury in 2006 from the negligence. The defense filed a motion to strike the affidavits contradictory to prior testimony. (Id. at 9-10).

The Circuit Court for Baltimore County ruled that the statute of limitations ran at the latest from 2006. The court rejected the inconsistent affidavits from the plaintiff’s experts. Consequently, the court found no dispute of fact and granted the defense motion for summary judgment, as the statute of limitations had expired. (Id. at 12-13).

Court of Special Appeals

In opposing the defense’s motion for summary judgment, the plaintiff attempted to create a dispute of fact. She used the defense experts’ testimony that the defendant doctor’s negligence did not cause the 2006 hydronephrosis. Of course, the plaintiff did not seek to adopt the defense expert testimony that the defendant did not put a clip across the ureter in the first place. The plaintiff also contended that the defense had the burden of proving an injury in 2006 for purposes of the statute of limitations. (Id. at 32).

To defeat the defense’s motion for summary judgment, the plaintiff was required to create a dispute of fact. She had to present admissible evidence upon which the jury could reasonably find for the plaintiff. The defense experts did not testify only that there was no injury in 2006. Instead, they testified that the defendant never placed a clip across the ureter and that there was never an injury. The plaintiff cannot adopt the defense experts’ testimony without sinking her prima facie case. Accordingly, summary judgment was appropriate. (Id. at 34).

The CSA also rejected the plaintiff’s claim that the defense had the burden of proving injury in 2006 to show an expired statute of limitations. In its motion, the defense demonstrated that it was entitled to summary judgment because the procedure was in 2000, and the plaintiff filed suit in 2016, eleven years past the expiration of the statute of limitations. CJP 109(a). (Id.)

The defense met its burden of establishing the absence of a genuine issue of material fact. Then, the burden shifted to the plaintiff to show why the statute of limitations did not bar her claim as a matter of law or identify disputed material facts. The plaintiff failed to do so. (Id. at 35). 

Commentary by the Baltimore Medical Malpractice Lawyer on Dispute of Fact

The plaintiff’s attempt to use only a portion of the defense expert’s expert testimony to create a dispute of fact and defeat the defense motion for summary judgment would fail. Under the plaintiff’s argument, a plaintiff can always defeat a statute of limitations claim by invoking defense expert testimony that the defendant never caused an injury.

The plaintiff’s argument that the defense had the burden of establishing a 2006 injury was so unusual that the CSA called it enigmatic. The plaintiff filed suit 16 years after the alleged negligent act. The defense could then file a motion saying that the filing was beyond the 3-5 year statute of limitations. Then, the burden shifted to the plaintiff to create a dispute of fact and show that the filing was within 3-5 years of the injury. As discussed in part 1 of the Blog series, the plaintiff was stuck with her expert’s testimony that there was injury in 2006, 10 years before the plaintiff filed suit.

In part 3 and the final Blog post on this case, I will discuss the courts’ application of the statute of limitations.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

In part 2 of this Blog post, I will examine the court’s decision on the issue of generating a genuine dispute of material fact to avoid summary judgment.

Factual Background

In 2000, the plaintiff underwent an aorto-bifemoral bypass graft at GBMC. This procedure created a new path around an obstructed blood vessel. (Op. at 3). Sixteen years later, the plaintiff filed a malpractice claim against the surgeon.  Specifically, the complaint alleges that surgical clips were left behind, which caused the plaintiff to start having abdominal pain in 2014. (Id. at 4-5).

Discovery revealed a 2006 CT Scan of the plaintiff, which revealed kidney stones. In addition, it showed hydronephrosis, which is excessive fluid in the kidney due to urine backup. The scan also showed clips from the bypass. (Id. at 6). 

Motions for Summary Judgment & Affidavits

The parties filed motions for summary judgment on the statute of limitations. The defense argued that the five-year statute of limitations in CJP 5-109(a) barred the plaintiff’s claim. The defense contended that if they put a clip on the ureter in 2000, that is when the injury occurred. Additionally, the defense asserted in the alternative that a 2006 CT scan showed hydronephrosis that the clip caused, resulting in the plaintiff’s claim. Under this argument, the claim was barred by 2011. (Id. at 9).

The plaintiff submitted expert affidavits that contradicted their previous deposition testimony, explaining that the change resulted from a review of the entire file relating to the 2006 visit. The experts first contended in depositions that the clips caused the 2006 hydronephrosis. They now claimed that the 2006 admission was not caused by the defendants’ negligence but rather by kidney stones. Accordingly, the plaintiff contended that there was no injury in 2006 from the negligence. (Id. at 7, 9-10). The defense filed a motion to strike the affidavits as contradictory to prior testimony. (Id. at 10).

The Circuit Court for Baltimore County ruled that the statute of limitations ran at the latest from 2006. The court also rejected the inconsistent affidavits from the plaintiff’s experts. Accordingly, the court granted the defense motion for summary judgment. (Id. at 12-13).

Court of Special Appeals

Maryland Rule 2-501(b) provides that a response to a motion for summary judgment that asserts the existence of a material fact or controverts any fact in the record must have an affidavit or other written statement under oath. But, under subsection (e), a party may move to strike an affidavit “to the extent that it contradicts any prior sworn statement of the person making the affidavit or statement.” Md. Rule 2-501(e). (Id. at 28).

Generally, if the court finds that the affidavit “materially contradicts the prior sworn statement, the court must strike the contradictory part.” Md. Rule 2-501(e)(2). The court is not required to strike a contradictory affidavit if it determines that: 

(A) the person reasonably believed the prior statement to be true based on facts known to the person at the time the prior statement was made, and (B) the statement in the affidavit . . . is based on facts that were not known to the person and could not reasonably have been known to the person at the time the prior statement was made or, if the prior statement was made in a deposition, within the time allowed by Rule 2-415(d) for correcting the deposition. (Id.).

In this analysis, the court looks at whether the statements are irreconcilable. In other words, the prior statement and the affidavit cannot both be true. (Id. at 29).

CSA Analysis of Affidavits

The CSA observed that the plaintiff’s experts’ deposition testimony that surgical clips caused the 2006 hydronephrosis was explicitly opposite their affidavit statements that kidney stones, not the clips, caused the hydronephrosis. (Id. at 30). Both statements cannot be true. (Id. at 31).

The CSA further found that excuse was unavailable under Rule 2-501(e)(2). The court did not believe that the entire chart review was the reason for the change of opinion. The experts had the opportunity to review materials before their depositions. As a result, the circuit court properly excluded the affidavits. (Id.).

Commentary by the Baltimore Medical Malpractice Lawyer on Summary Judgment Affidavits

The courts’ rulings were straightforward application of the rule provisions governing motions for summary judgment and supporting affidavits. The facts in the case reflect the challenges involved in complex medical malpractice cases involving a lot of records.

The medical malpractice lawyer’s role is crucial in ensuring that their experts have all the records the defense may use to question them. Moreover, the lawyer must meticulously ensure that the records and expert opinions align with the plaintiff’s theory of the case. This includes addressing the issue of the statute of limitations and the timing of the injury.

The lawyer must prepare the experts for the anticipated defense questioning, including the records that the defense is likely to use. This preparation can significantly influence the outcome of the case.

In this case, in depositions, the defense asked the plaintiff’s experts about a CT scan they may have never considered. They also had not seen the other records from that visit. As a result, they gave what seemed to be answers on the spot that they had not thought out before. The result was testimony that contradicted the plaintiff’s theory of the case.

Deposition Changes

After the depositions, the experts then sought to change their opinions after reviewing the full file from the 2006 hospital visit. There was a way that they could have successfully done that.

After the depositions, the medical malpractice lawyer could recognize the inconsistency of the testimony and then give the entire file to the experts for review. Then, under Rule 2-415(d), the experts could change their testimony within 30 days of receipt of the deposition transcripts.

The defense could examine the experts at trial about the change in their testimony. However, the plaintiff would avoid summary judgment resulting from affidavits that contradicted prior testimony.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

The case was in the Circuit Court for Frederick County. The case involved a car accident where a car hit a pedestrian. The jury found that the defendant was negligent but that the plaintiff was also contributorily negligent, a legal term meaning that the plaintiff’s own negligence contributed to the accident, thereby barring him from recovering damages. (Op. at 1, 6).

The Appellate Court discussed several issues in its opinion, but I am going to discuss the one involving a motion for mistrial. During the defendant’s closing argument, the plaintiff objected and moved for a mistrial based on improper reference to lack of insurance coverage, which the circuit court denied. (Id.).

Factual Background

In closing argument, the defense discussed the plaintiff’s claimed damages. Then the defense said, the plaintiff is asking you to award him a monetary figure for the choices he has made. He wants the defendant to pay him for some of these choices. (Id. at 8).

The plaintiff’s counsel swiftly moved for a mistrial. The plaintiff asserted that defense counsel had improperly suggested that the defendant, in his personal capacity, would be responsible for paying any verdict entered for the plaintiff. The plaintiff’s counsel also contended that the defense comment insinuated a lack of insurance coverage. (Id. at 8-9).

The circuit court denied the motion for mistrial, stating that it did not believe the word pay was a reference to insurance specifically. Upon the plaintiff’s request, the circuit court instructed the jury with a curative instruction, which is a statement made by the court to correct a mistake or to prevent a misunderstanding, that they should not consider how a verdict is paid in a case. (Id. at 9).

Appellate Court Analysis

The plaintiff argued that the defense’s comment was highly prejudicial. Despite the curative instruction, the plaintiff argued that the comment denied him a fair trial. (Id.).

The defense contended that the statements were not prejudicial because they did not present the lack of insurance to the jury. The defendant added that, in any event, the plaintiff received a fair trial because the circuit court used the curative instruction that the plaintiff had explicitly requested. (Id.).

Legal Principles

The standard of review, a legal term referring to the level of scrutiny that an appellate court applies when reviewing a decision by a lower court, was an abuse of discretion and an insurance mistrial is an extraordinary remedy. (Id. at 10).

Maryland follows the majority rule, a legal term referring to a principle of law that is followed by the majority of courts in a particular jurisdiction, that evidence of insurance is generally inadmissible. Morris v. Weddington, 320 Md. 674, 680 (1990). The rule against admitting evidence regarding insurance is for the protection of both parties. Suppose the amount of insurance coverage is high. In that case, reference to it may prejudice the defendant because the jury may consider that the defendant will not be personally liable for any damages and, therefore, be overly generous in an award to the plaintiff. Conversely, suppose coverage limits are low or nonexistent. In that case, the award may be smaller than justified because the jury may limit the award to what it believes the defendant can personally afford regardless of the actual damages proved. Id. at 681.

However, “a mere inference that there may be insurance would not necessarily require a termination of the trial.” Bricker v. Graceffo, 236 Md. 558, 564 (1964).

Appellate Court Ruling on Insurance Mistrial

The Appellate Court found that the defense comment was ambiguous. There was no suggestion or reference to insurance or lack thereof. The mere reference to the plaintiff wanting the defendant to pay him for his choices did not prejudice the plaintiff. (Op. at 12).

The plaintiff next contended that the curative instruction called additional attention to the insurance issue, depriving him of a fair trial. Here, it becomes unclear who requested the instruction. On page 9, the Appellate Court said the plaintiff requested it. On page 13, the court stated that the defense counsel requested it, and the circuit court used the language requested by the plaintiff.

In either event, the Appellate Court found that the curative instruction was sufficient. Accordingly, the Appellate Court upheld the circuit court’s denial of the insurance mistrial.

Commentary by the Baltimore Medical Malpractice Lawyer on Insurance Mistrial

Medical malpractice lawyers need to make sure that the defense does not try to inject a suggestion that the defendant does not have insurance or has insufficient insurance. Rarely will this issue come head-on. In other words, it likely won’t involve the word insurance. As in Lewis, it most likely will be a comment that mentions the ramifications of the lack of insurance.

For instance, the medical malpractice lawyer should object to any comment that a verdict would have a negative financial effect on the defendant or the defendant’s ability to practice medicine. The objection must be immediate. In addition, it is wise to request curative instruction. Further, propose one that is well-crafted to address the specific comment at issue.

Courts view curative instructions favorably. The argument that it calls additional attention to the issue will likely be unsuccessful for proper curative instruction. Of course, if it is a poorly constructed one, this argument may have better prospects. In that instance, the medical malpractice lawyer should have proposed an appropriate instruction, which the court declined.

Consider a Motion in Limine

Last, if you are going up against a defense counsel who is known for injecting inappropriate insurance-related comments, file a motion in limine. Motion in limine is a legal term referring to a pre-trial motion that is made to exclude certain evidence from being presented by the other party at trial, in advance of trial. It can inform the trial judge of counsel’s tendency to inject these inappropriate comments that could warrant an insurance mistrial. That alone may make the defense counsel back off. Even if it doesn’t, it may make the judge more sympathetic to your objections and curative instructions.

You can read more about trials on the litigation process pages. You can also read a Blog post about another case involving closing arguments.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

The plaintiff brought a case in the Circuit Court for Howard County after she tripped and fell at a mall on a floor mat that was allegedly misplaced. She broke her femur. (Op. at 1). The plaintiff then sued the mall, management, janitor, and security. The mall, management, and janitor settled with the plaintiff. (Id. at 1-2).

The plaintiff then went to trial against the security company and obtained a $750,000 jury verdict. The plaintiff contended three joint tortfeasors, and security contended four. The circuit court found there were four and entered judgment accordingly. However, it declined to predate the judgment to the date of the verdict. (Id. at 4).

Entry of Judgment

The procedure for entry of judgment is in Rule 2-601. The Appellate Court stated: 

“Section (a) of which, captioned in part “Prompt Entry,” provides, in relevant part, that, upon a verdict of a jury allowing recovery of a specified amount of money, ‘the clerk shall forthwith prepare, sign, and enter the judgment unless the court orders otherwise.’”

The jury returned its verdict on May 27, 2022. However, the circuit court still had to decide the disputed issue of how many tortfeasors, which would determine how much money the court would enter in its judgment. The circuit court decided the entry of judgment issue on June 20, 2022. (Id. at 8).

A circuit court is entitled to enter a judgment nunc pro tunc to the verdict date to commence the post-judgment interest running. See Mona v. Mona Electric, 176 Md. App. 672, 730-31 (2007) and Aronson v. Fetridge, 181 Md. App. 650, 683-687 (2008).

The Appellate Court also stated:

“Apart from resolving a post-judgment motion filed by Allied, which was denied, the one-month delay in this case was for the legally required determination of an appropriate reduction in the verdict due to the existence of other joint tortfeasors, and we see no reason why appellant should be denied post-judgment interest because of that necessary delay. The only way to achieve that result – a fair and permissive result – is to date the judgment nunc pro tunc from the date of the verdict.” (Id. at 9).

Commentary By the Baltimore Medical Malpractice Lawyer

The Appellate Court’s rationale on entry of judgment is persuasive and helpful to medical malpractice plaintiffs. Maryland has a 10 percent post-judgment interest rate. CJP 11-107. Interest rates have been low for over two decades, and the 10% post-judgment interest rate has significantly benefited plaintiffs who must wait for payment pending post-trial motions or appeals.

It significantly adds up on appeals. An appeal to the Appellate Court of Maryland can take one and a half years to complete. For a $1,000,000 medical malpractice verdict, 10% for 18 months totals $150,000.

The Maryland medical malpractice lawyer should specifically use these authorities to ensure the circuit court enters judgment as of the verdict date. Suppose the circuit court has entered judgment on a later date. In that case, the lawyer can file a motion to alter or amend judgment within ten days of the entry of judgment. Rule 2-534. Alternatively, the lawyer also can file a motion for the circuit court to exercise its revisory power. Rule 2-535. 

When it is time for the defense to pay the judgment, the medical malpractice lawyer should convey to the defense the amount of post-judgment interest, including the per diem amount. The lawyer should also state that the defense must pay interest through the date the lawyer receives the check, or the lawyer will only provide an order of satisfaction once the defense does.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Circuit Court Facts

The defendant’s SUV struck a car in which the plaintiff was a passenger. As a result, the collision force caused the airbags in the plaintiff’s car to deploy, the window glass shatter, and the vehicle to spin around (Op. at 2). Afterward, the plaintiff was mumbling and incoherent and was taken by ambulance to the hospital complaining of headache and neck pain. (Id. at 3).

The plaintiff was then diagnosed and received treatment for a concussion and fractured ribs. Following that, she continued to have headaches, dizziness, nausea, fatigue, sensitivity to noise and light, and difficulty concentrating. Medical providers treated the plaintiff for nine months, including speech therapy. (Id).

The Circuit Court for Anne Arundel County entered summary judgment for the plaintiff on liability, and thereafter the jury considered damages. After a three-day trial, the jury awarded the plaintiff $32,000 in noneconomic damages and zero in future medical expenses. (Id. at 1). The plaintiff then filed a motion for new trial, arguing the verdict was against the weight of the evidence. The circuit court granted the motion. The plaintiff did not testify at the second trial and withdrew the claim for future medical bills. The jury returned a verdict for the plaintiff of $1,042,000 in noneconomic damages. (Id. at 1, 13). 

Appellate Court on the Motion for New Trial

The Appellate Court recounted details of the testimony from the first trial. A witness described the plaintiff as having trouble with memory and word retrieval and was less patient since the accident. (Id. at 3). The plaintiff could only return to work half-time and had to sleep when she got home. (Id. at 4). A neurologist also testified that MRIs. of the plaintiff’s brain reflected atrophy that follows a concussion. He testified that it would begin to affect her activities of daily living and ultimately require assisted living. (Id. at 4-6). The plaintiff was 64. (Id. at 6).

The defense’s neurologist found that the plaintiff scored normal on mental and cognitive tests and believed that the brain atrophy was caused by unrelated factors, noting that a CT scan after the accident was normal. (Id. at 7-8).

After the jury awarded the plaintiff $32,000, the plaintiff filed a motion for a new trial, arguing that the verdict was against the great weight of the evidence. The defense opposed it, arguing that the evidence revealed contested issues for the jury. The circuit court granted the motion (Id. at 11).

The defendant then appealed, arguing that the circuit court erred in granting the motion for a new trial. The Appellate Court observed that the circuit court was permitted to assign weight to evidence in exercising its discretion to grant or deny a motion for a new trial. (Id. at 22). The first circuit court specifically had a unique opportunity to hear the evidence and conclude that the verdict did not serve justice. Consequently, the Appellate Court declined to substitute its judgment for the trial court’s. (Id. at 23).

Commentary By the Baltimore Medical Malpractice Lawyer

It is hard to evaluate the circuit court’s decision because, like the Appellate Court, I was not there to view the testimony. However, the significantly higher second verdict is more in line with the circuit court’s reasoning and supports the fact that the first verdict could have been against the great weight of the evidence.

The plaintiff’s counsel also changed strategies for the second trial. He did not call the plaintiff to testify or make a claim for future medical expenses. It is rare for a plaintiff not to testify. The jury expects to hear from the one making a claim. However, a lawyer may make that decision if, on balance, it is better for the case if the plaintiff does not testify. Translation: the plaintiff was a bad witness.

The granting of a motion for new trial because the verdict went against the great weight of evidence is a rare event, and it is quite a disappointment to the party that convinced the jury of its case. The opinion in this case is a reminder of this powerful tool that trial judges have and the deference that the appellate courts give them when they use it.

The plaintiff lawyer’s strategy change for the second trial worked beautifully. However, before congratulating the plaintiff on the second verdict, read part 2 of this Blog post.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.