Personal Injury

Maryland Court Rules Asbestos Defendants May Be Liable for Failure to Warn About Replacement Parts

March 19, 2016 | by Foran & Foran, P.A.

The Maryland Court of Appeals recently published an important opinion that will have consequences for future asbestos litigation and personal injury claims. In a victory for asbestos plaintiffs, the court’s ruling in May v. Air & Liquid Sys. Corp. (Md. Dec. 18, 2015) found that in limited circumstances, a manufacturer has a duty to warn workers of asbestos-containing third-party replacement component parts under theories of negligence and strict liability.

In May, the plaintiff replaced asbestos gaskets and packing while in the United States Navy from 1956 until 1976, which exposed him to airborne asbestos fibers. However, he was not exposed to the asbestos gaskets and packing that the defendants used, but to asbestos-containing replacement parts acquired from third parties. It is undisputed that the instruction manuals did not contain any warnings regarding the danger of inhaling asbestos dust or directions to wear protective gear. In January 2012, the plaintiff learned he was suffering from mesothelioma, a form of cancer that is commonly caused by asbestos exposure. The plaintiff initially filed suit against the defendants, and his wife continued the action upon his death. The defendants moved for summary judgment, contending that they had no duty to warn of the dangers of third-party asbestos-containing replacement parts that they did not manufacture or place into the stream of commerce. The trial court granted the motion in favor of the defendants, and Court of Special Appeals affirmed.

In Maryland, failure to warn claims may be brought under a negligence or strict liability theory. Negligence claims require a showing of a duty of care owed by the defendant to the plaintiff. In determining the existence of a duty, the court considers many factors, including the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant, and others.

Maryland Plaintiff Fails to Prove Causation in Negligence Action

March 18, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently ruled on an appeal in a personal injury case in Smith v. Chimes, Inc. (Md. Ct. Spec. App. Jan. 5, 2016). The plaintiff in Smith was an intellectually disabled woman who participated in an employment program sponsored by one of the defendants. In November 2010, the plaintiff was being transported to her employment by bus when she broke her shinbone. The plaintiff alleged that she had struck another passenger on the bus because he would not stop touching her, and the passenger shoved her to the ground, causing her injury. The plaintiff also claimed that she had previously complained to the bus driver and employees of the defendant that another passenger on the bus frequently harassed and touched her.

In September 2013, the plaintiff brought claims against the defendants to recover compensation for that injury, as well as a second injury that occurred over a year later, contending that her knee was so weakened that it gave way and caused her to fall down the stairs. Specifically, the plaintiff brought negligence claims against the bus driver for failing to prevent the passenger from injuring her, failing to stop the passenger once the altercation was in progress, and ignoring the plaintiff’s request for medical attention after the injury. In addition, the plaintiff brought a claim against the bus driver’s employer on a theory of vicarious liability and negligent entrustment of the bus to the driver. The plaintiff filed negligence claims against the employment program as well, alleging vicarious liability on the basis of its contract to provide transportation to its employees.

Maryland Court of Special Appeals Holds Lower Court Erred in Setting Aside $926,000 Jury Award in Medical Malpractice Case

March 17, 2016 | by Foran & Foran, P.A.

In a recent opinion, the Maryland Court of Special Appeals held that a trial court erred in setting aside a jury verdict in favor of the plaintiffs and entering judgment for the defendants in a medical malpractice action. In Gibau v. Falik, (Md. Ct. Spec. App. Dec. 22, 2015), the decedent was hospitalized after suffering an assault and eventually died. The decedent’s survivors brought a wrongful death action based on the alleged medical malpractice of the treating physician. The plaintiffs claimed that the defendant breached the standard of care when he decided not to administer anti-seizure medication to the decedent, and when he failed to transfer the decedent back to the intensive care unit on the morning of his death. The plaintiffs claimed that the alleged medical malpractice caused the decedent to suffer a seizure, which ultimately resulted in his death.

After trial, the jury returned a verdict in favor of the plaintiffs in the amount of $926,640. The circuit court then granted the defendant’s motion for judgment notwithstanding the verdict, but on grounds that were not raised by the defendant. Instead, the circuit court concluded that no reasonable trier of fact could have found that the defendant breached the standard of care in the case, nor that the alleged breach was a causative factor in the defendant’s death.

Maryland Court Reviews Jury Verdict in Motorcycle Accident Case

March 16, 2016 | by Foran & Foran, P.A.

The Maryland Court of Special Appeals recently reviewed a jury decision finding that a defendant was not negligent in causing a car accident with the plaintiff. In Clark v. Dulaney, the parties were driving towards each other in opposite directions on the same two-lane road. An SUV in front of the plaintiff stopped to make a left turn at the same time the defendant’s minivan stopped to make a left turn. The plaintiff passed the SUV on his motorcycle, hitting the rear of the defendant’s minivan as she made a left turn. The plaintiff brought a personal injury lawsuit against the defendant, alleging that she failed to yield to the right of way of the plaintiff, which resulted in an accident that injured the plaintiff. After trial, the jury returned its verdict in favor of the defendant, finding that she was not negligent, nor was her negligence the proximate cause of the accident.

Court of Special Appeals of Maryland Reverses Jury Verdict in Slip and Fall Case

March 15, 2016 | by Foran & Foran, P.A.

The Maryland Court of Special Appeals recently reviewed a verdict in which the jury found in favor of the plaintiff in a personal injury claim. In Univ. Specialty Hosp, Inc. v. Rheubottom (Md. Ct. Spec. App. Feb. 10, 2016), the plaintiff brought a negligence action against a hospital, seeking damages for injuries she suffered when she slipped and fell while exiting the hospital. After a trial, the jury returned a verdict in favor of the plaintiff and awarded damages for medical expenses and pain and suffering. The hospital moved for judgment notwithstanding the verdict, contending that the jury’s verdict was not supported by the evidence presented at trial. The trial court denied the motion, and the hospital appealed.

To establish a negligence claim in Maryland, the plaintiff must prove that the defendant owed her a duty of care, the defendant breached that duty, the defendant’s action caused the plaintiff’s injury, and the plaintiff suffered damages. In premises liability cases, the duty owed to a plaintiff depends on the circumstances of the parties’ relationship. A business invitee is defined as one invited or permitted to enter another’s property for purposes related to the property owner’s business.

In Univ. Specialty Hosp, Inc. v. Rheubottom, the plaintiff was a business invitee of the hospital. Accordingly, the hospital owned her a duty to use reasonable and ordinary care to keep its premises safe and protect her from harm caused by an unreasonable risk that the plaintiff, by exercising ordinary care for her own safety, would not discover. However, no presumption of negligence on the part of the property owner arises merely from a showing that an injury was sustained on the premises. The plaintiff, therefore, bears the burden of producing evidence from which the jury could infer that the hospital created the dangerous condition or had actual or constructive knowledge of its existence.

Maryland Court Rules Police Officers Immune from Liability in Personal Injury Case

March 15, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently ruled on an appeal in a personal injury claim against two Baltimore City police officers. In Freedman v. Wright (Md. Ct. Spec. App. Jan. 27, 2016), the plaintiff awoke to a fire in her apartment building. She cried for help from her third-story window, and two police officers arrived on the ground below her window. The plaintiff alleged that the officers ordered her to jump and stated that she would be okay. However, the plaintiff hit the ground when the officers did not catch or break her fall, and as a result, she suffered various injuries. The plaintiff brought suit against the officers and the Baltimore City Police Department. The trial court granted the defendants’ motion to dismiss, and the plaintiff appealed.

Public official immunity is a common-law doctrine that limits certain officials’ liability for official acts. An official must satisfy three conditions to qualify for immunity: (1) he or she must be a public official; (2) his or her tortious conduct must have occurred while performing discretionary acts in furtherance of official duties; (3) the acts must be done without malice or gross negligence. Gross negligence has been defined as an intentional failure to perform a manifest duty in reckless disregard of the consequences affecting the life or property of another, without the exertion of any effort to avoid them.

Maryland Court of Special Appeals Reviews Expert Testimony in Automobile Accident Case

March 15, 2016 | by Foran & Foran, P.A.

In a recent car accident case, the Maryland Court of Special Appeals was presented with the question of whether the trial court abused its discretion in allowing the defendant’s medical expert to testify about a photograph of the damage to the vehicle in which the plaintiff was riding. In Fusha v. Leonard (Md. Ct. Spec. App. Sept. 24, 2015), the plaintiff was a passenger in a car that was rear-ended by a vehicle operated by the defendant. The plaintiff brought a personal injury claim against the defendant, alleging that his negligence caused her injuries.

The parties agreed that the defendant was at fault for the accident. The issue for the jury was the amount of the plaintiff’s damages, if any. At trial, the defendant offered the expert testimony of an orthopedic surgeon, who provided his opinion as to whether the plaintiff’s injuries were caused by the collision. The expert based part of his opinion on a photograph of the plaintiff’s vehicle that was admitted into evidence. The plaintiff objected to the testimony of the expert regarding the impact that was sustained to the upper part of the truck of her vehicle, and the trial court overruled that objection. At the conclusion of the trial, the jury returned a verdict in favor of the defendant. The plaintiff then appealed the issue of the expert’s testimony to the Maryland Court of Special Appeals, contending that he was not an expert in accident reconstruction and was not qualified to testify as to the nature or severity of the collision.

Maryland Court Reviews Appeal in Car Accident Case

December 10, 2015 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently ruled on an appeal in a personal injury case that arose out of a car accident. In Chaffman v. Estrada-Bernales (Md. Ct. Spec. App. Nov. 17, 2015), the plaintiff and his wife were stopped at a red light when the defendant’s vehicle rear-ended their SUV. The day after the accident, the plaintiff experienced stiffness in his right side, neck, and lower back and visited his primary care physician, who referred him to a chiropractor. After four to six weeks of chiropractic treatment, the plaintiff was referred to a pain management specialist and also underwent a surgical procedure to alleviate the pain. The plaintiff filed suit against the defendant, alleging that the plaintiff had sustained severe and permanent injuries as a result of the accident.

The plaintiff filed a motion for summary judgment against the defendant, arguing that since the defendant failed to answer the plaintiff’s request for admissions, its contents were deemed admitted. The defendant then filed an opposition to the motion and provided the plaintiff with a response to his request for admissions. The trial court ruled that the defendant had breached a duty of care owed to the plaintiff but left the issue of damages to the jury. After trial, the jury found that the plaintiff was not injured in the accident and awarded no damages. The plaintiff appealed the verdict, contending that the judge erred by not granting his motion for summary judgment on the issue of causation and damages when the defendant failed to timely answer the request for admissions, and by not allowing the plaintiff to rebut a misleading closing argument made by the defendant’s counsel.

Maryland Court Ruling Affirms Summary Judgment Against Former Tenant in Lead Paint Case

November 3, 2015 | by Foran & Foran, P.A.

The Maryland Court of Special Appeals recently ruled on a lead paint case, Barr v. Rochkind (Md. Ct. Spec. App. Sept. 29, 2015), in an action brought by a plaintiff alleging that she was exposed to lead-based paint while living in a rental property owned and managed by the defendants. The defendants filed a motion for summary judgment, contending that there was insufficient evidence to demonstrate that the rental property contained lead-based paint that caused the plaintiff’s injury. The motion was granted by the trial court, and the plaintiff appealed.

The plaintiff was born in 1995 and had lived in several different houses in Baltimore, including a rental property owned by the defendants from 2001 to 2003. From 1996 to 2002, the plaintiff was tested every year for lead, and the results showed elevated blood lead levels. When she was 17 years old, the plaintiff was diagnosed with brain-related neuropsychological impairment as a result of childhood exposure to lead. In bringing her negligence claim against the defendants, the plaintiff relied on circumstantial evidence, including an affidavit from a medical expert that opined that the plaintiff’s intellectual impairments were caused in part by her exposure to lead paint at the defendants’ property. There was no evidence presented of any testing performed on the paint.

Maryland Court of Appeals Analyzes Role of Medical Experts In Lead Paint Case

November 2, 2015 | by Foran & Foran, P.A.

In a newly published opinion, the Maryland Court of Appeals considered whether a pediatrician, who has never treated a child victim of lead paint poisoning, may be permitted to offer an opinion as to medical causation of this condition. In Roy v. Dackman, the plaintiff filed a negligence action against the landlord and owners of a building for alleged personal injuries resulting from lead-based paint poisoning. The property was alleged to have been the only source of lead paint ingested by the child. The plaintiff identified two expert witnesses to testify as to the source of lead exposure, but only one of them as to the medical causation of the injuries suffered by the plaintiff. The testimony of the doctor in question established that he was well-read on the literature related to lead poisoning and its harmful effects on young children, but it revealed that he had never studied or treated directly in his practice an individual with lead-based poisoning.

The defendants filed motions to exclude the plaintiff’s expert witnesses, arguing that they were not qualified. The trial court agreed, and without the testimony of the plaintiff’s sole medical expert to establish causation, the court granted the defendant’s motion for summary judgment. The Court of Special Appeals affirmed the ruling, holding that he was not qualified to testify as an expert in lead poisoning, or offer an opinion as to the source or causation of lead exposure. However, when the Court of Appeals considered the requirements that must be met by an expert witness in order to qualify to testify as to the medical causation of alleged injuries from childhood lead exposure, it reversed the previous courts’ decisions as a clear abuse of discretion.