Connect

To receive new posts automatically via e-mail, enter your address:

Delivered by FeedBurner


City of Baltimore, Maryland

Baltimore, Maryland has made some improvements over the past twelve months, moving it down to the Watch List; however, there is still cause for concern. The next 12 months will prove to be a true test of the judicial environment in both the city and the state.

MASS CONSOLIDATION REQUEST SCALED BACK

The reemergence of questionable practices in asbestos litigation in Baltimore are the main reason that the city finds itself back in the Judicial Hellholes spotlight. Known for its “rocket docket,” the court pushes cases through as quickly as possible, a practice that places efficiency of the court and plaintiffs’ interest in collecting damages over the due process rights of the defendant. The court has a well-deserved reputation for being plaintiff-friendly and a history of large awards.

Last year’s Judicial Hellholes report focused on the motion and memorandum filed with the Baltimore City Circuit Court by famed mass tort kingpin Peter Angelos. Angelos requested consolidation of 13,000 non-mesothelioma asbestos personal injury lawsuits, including many unimpaired claimants. He essentially argued that, because his firm has filed so many cases, the court should help expedite them by stacking the deck against the targeted defendants.

In April 2013 the Wall Street Journal picked up where the 2012 Judicial Hellholes report left off, condemning Angelos’s consolidation game. A preliminary investigation by defense counsel indicated that more than 1,500 of the Angelos claims were duplicates. Of the remaining 11,383 plaintiffs, nearly 70% had been diagnosed by one or more of the same five doctors. One of the physicians, William Goldiner, diagnosed nearly 50% of the plaintiffs, 77 in one day. When not helping to promulgate claims for the tort bar like a well-oiled machine, Dr. Goldiner somehow finds time to work as a team doctor for the Baltimore Orioles baseball team, which, not coincidentally, is owned by Peter Angelos. Another doctor, Joseph Kligman, is a former partner of Dr. Goldiner. The other three doctors either prepared reports at Dr. Goldiner’s request or relied on his exams.

“This new information all but obliges [Circuit Court] Judge [John] Glynn to … dig into the claims and see how many are bogus suits manufactured with the help of friendly doctors,” the Journal editorialized . “[S]uch discovery is the best way for the judicary to stop the avalanche of fraudulent claims so legitimate victims can get their day in court.”

In June 2013, after the court heard oral argument on the consolidation motion, the Angelos firm scaled back its request. It proposed a smaller, but still unworkable, lumping together of about 4,600 cancer claims. Lawsuits alleging other harms could be handled in a similar way later on, the firm suggested to the court. Judge Glynn has not ruled on either of the firm’s requests.

CHANGING THE FACTS FOR MONEY

Baltimore City courts are not unique in experiencing manipulation by personal injury lawyers who claim one thing in a lawsuit while claiming something entirely different in administrative claims filed with trust funds – established by scores of already bankrupted asbestos companies – to compensate claimants.

Nowhere was that made clearer than in a recent case against a manufacturer of building products, CertainTeed, brought on behalf of a deceased worker who alleged asbestos exposure as a result of his presence on a construction site during the late 1970s. A Baltimore City jury returned a rare defense verdict in December of 2009, finding the plaintiff failed to show that CertainTeed’s pipes were used on the plaintiffs’ jobs. The defense verdict was overturned on a technicality and a retrial was scheduled for October of 2013.

During the defendant’s preparation for retrial, however, it became apparent that the plaintiff was attempting to “game” the system. Immediately after the jury’s decision, the plaintiff filed at least 23 claims against bankruptcy trusts alleging exposure to a wide array of asbestos-containing products between 1975 and 1978. In several sworn statements, the plaintiff attested to the fact that he was exposed to asbestos in a variety of places, a fact that he expressly denied during his prior sworn statement in the case against CertainTeed.

In a motion for sanctions against the plaintiff, the defendant noted that “the bankruptcy trust claims revealed information which either contradicted or supplemented the incomlete exposure history [the plaintiff] recounted, under the penalties of perjury, at trial.” By omitting the fact that he was exposed to asbestos on a variety of occasions, “his narrative was constructed to artificially bolster his experts’ opinions and prevent CertainTeed from investigating, developing and asserting the defense that [the plaintiff ’s] exposure to other asbestos-containing products caused his illness- a defense which, based on his bankruptcy trust claims, was meritorious and powerful.” Shortly before the scheduled retrial, the case settled.

The use of this strategy to handicap defendants with half-truths and lies to maximize the odds of recovering significant damages is not limited to this case or to Baltimore City. It has been in play for years and, until the judges crack down on these opportunistic trial attorneys, it will continue . Companies will be forced to spend millions defending themselves against baseless claims, all the while members of the asbestos litigation industry continue to rake in millions in attorneys’ fees.

MARYLAND COURT OF APPEALS ISSUES SOUND DECISIONS

For all the continuing problems with asbestos litigation in Baltimore, there was some encouraging news out of Maryland this year in the form of decisions handed down by the state’s highest court. The Maryland Court of Appeals issued three landmark decisions that favored balance and fairness.

In July 2013, the Court of Appeals retained the doctrine of contributory negligence, which provides a defense against liability when a plaintiff ’s negligence contributed to his or her own injury. As discussed among the Points of Light on page 49, the court properly recognized that it is the legislature’s responsibility to consider and change this longstanding doctrine if it is to be changed at all.

Also that month, the high court rejected an attempt by plaintiffs’ lawyers to extend the asbestos liability of companies to third parties who allege secondhand exposure via the clothing of family members who had worked directly with asbestos-containing products. The Court of Appeals’ decision followed a $5 million laintiff ’s verdict in Baltimore City, which was affirmed by an intermediate appellate court. But the high court reversed, holding that companies do not owe a duty of care to third parties if the alleged exposure occurred before medical science had recognized such exposures as a health threat.

In a separate decision – something of a two-for-the-price-of-one – stemming from yet another Baltimore City lawsuit, the high court rejected a scientifically unsound theory of liability pushed by plaintiffs’ lawyers as they seek to squeeze money out defendants for allegedly exposing their clients to as little as a singleasbestos fiber. Medical science indicates such miniscule amounts are not enough to cause harm. The court also reaffirmed the constitutionality of Maryland’s limit on subjective damages for pain and suffering in wrongful death actions in this case.

Maryland’s high court also once again soberly refused to adopt a “dram shop liability” law for the state. In a 4-3 decision, the court held that Maryland does not recognize a cause of action against an alcohol-serving establishment for harm caused by an intoxicated patron off premises in the absence of a special relationship.

But not all of the high court’s 2013 decisions went against those looking to expand liability . Earlier in the year, it waded into the thorny issue of whether a plaintiff with no injury, who nonetheless believes he or she was exposed to a toxic substance, can recover damages for medical monitoring. Many courts have rejected such speculative claims, but Maryland’s Court of Appeals allowed them. It did constrain the potential for abuse, however, both by imposing requirements for scientific evidence that shows monitoring to be necessary for diagnosis and treatment, and placing any recovery into a fund that may only be used for such medical expenses.

A closing note on Maryland’s high court: Chief Judge Robert Bell retired in 2013 after 22 years on the court (16 as chief justice). He takes with him a reflexive tendency to expand liability, which was evidenced one last time in a spirited dissent that lamented the majority’s decision to let legislators retain or reform the doctrine of contributory negligence.

MARYLAND GENERAL ASSEMBLY MAY UNDO HIGH COURT RULINGS

On cue, plaintiff lawyer-friendly members of the Maryland General Assembly have already expressed their intent to introduce legislation in 2014 that would replace the contributory negligence doctrine with comparative fault. They also intend to introduce a dram shop liability bill . And those liability-loving lawmakers may get additional inspiration in 2015 from a new attorney general to be elected next November. A prominent state senator is expected to be a leading candidate, and he has made no secret of his desire to play an activist role.

Share