As Baltimore courts took steps toward a more fair and balanced judicial system, the Maryland General Assembly filled the void and pursued an extremely plaintiff-friendly agenda in 2019. The legislature considered multiple liability-expanding bills and looked for creative ways to provide benefits to the politically powerful personal injury firm of Peter Angelos. Despite pushback from Governor Larry Hogan (R), more of the same is expected in 2020.
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MARYLAND GENERAL ASSEMBLY
INDIVIDUAL REVIEW OR MASS CONSOLIDATIONS?
Baltimore City consistently ranks among the most popular jurisdictions to file asbestos lawsuits in the United States. But unlike other leading “magnet courts,” the docket has very few mesothelioma cases. Most cases filed by the Peter G. Angelos firm involve non-malignant conditions. For years, the firm has flooded the court with cases, many by asymptomatic plaintiffs, and stockpiled non-viable cases. Today, more than half the cases on the Baltimore City asbestos docket are non-viable.
Defense interests have long questioned the reliability of cases filed by the Angelos firm in Baltimore City that allege non-malignant conditions. The Baltimore Sun reported in 2013 when the Angelos firm last “[sought] to revive thousands of dormant asbestos cases,” that an investigation showed more than 1,500 claims to be duplicates. Of the remaining 11,383 claims scrutinized, nearly 70 percent involved diagnoses by one or more of the same five doctors, one of whom signed off on nearly 50 percent of those diagnoses, including an astounding 77 in just one day. Even more remarkable was the identity of this super doctor, William Goldiner. He was and remains the team doctor for the Baltimore Orioles, which Peter Angelos purchased with the contingency-fee riches he won as Charm City’s most successful asbestos lawyer in the early 1990s.
The Angelos firm has stockpiled these questionable cases because they are hoping for a bailout that will make them millions of dollars in fees for their largely worthless inventory. The firm wants mass trials where they can use higher value cases as leverage to force settlements on all of the cases. The judiciary went along with this unfair scheme a couple of times in the early 1990’s but the docket soon became clogged again because the practice simply encouraged the firm to file more cases of questionable merit. In 2014, when the Angelos firm tried a third attempt at mass trials, the court was onto their tactics and rejected their request.
Instead, the Baltimore City court adopted a version of an innovative approach adopted by the manager of the federal asbestos litigation. The Baltimore judges began requiring individual review of the pending cases in monthly status conferences. This system is effectively filtering out the non-viable cases while allowing the cases of deserving plaintiffs with viable cases to advance. The Angelos firm is voluntarily dismissing most of its cases when they are called up for a status conference because the firm knows the cases are not viable.
November 2019 was Groundhog Day again, as the Angelos Firm pushed the Maryland House Judiciary Committee to address the supposed backlog of asbestos claims in Baltimore City through mass consolidation of claims. Instead, the court should be permitted to continue its effort to clean up the asbestos docket by requiring plaintiffs with long-dormant claims to submit credible evidence of an asbestos-related impairment, giving priority to sick claimants, and dismissing claims that are not viable.
These changes “expand the risk of employer liability” and “make Maryland courts a more attractive forum for pursuing such claims” than federal courts.
– A Maryland law firm
LIABILITY-EXPANDING LEGISLATION
Maryland was named one of the worst states to start a business in 2019 despite significant access to resources. Rather than address the growing problem, Maryland’s legislature considered an agenda that would drive up the cost for doing business in the state.
MEDICAL LIABILITY
A survey of Maryland’s hospitals found that in 2018, annual hospital payouts were $176 million – nearly 140 percent higher than in 2008, despite the frequency of claims remaining relatively stable. The Maryland General Assembly enacted a bill that will further drive up these costs. S.B. 773 will increase the maximum amount of time that professionals can devote towards giving expert witness testimony in trials from 20 percent to 25 percent. The more time experts spend testifying in court, the less time they spend actually treating patients. This creates a niche culture of professional witnesses providing less informed testimony.
The legislature also again considered a bill that would significantly increase the amount Maryland law allows plaintiffs to collect for subjective, noneconomic damages, such as pain and suffering. That bill, S.B. 813, would have eliminated the lower limits established in medical liability cases to preserve affordable and accessible healthcare and instead applied higher limits applicable in other personal injury cases. The bill also would have significantly increased those limits in wrongful death cases “per beneficiary.” The result would be a law that allowed awards for noneconomic damages as high as $3.4 million – far exceeding other states with similar laws. The bill ultimately failed.
As health care providers look for ways to avoid costly litigation, the use of defensive medicine has increased. It now makes up 13 percent of all hospital costs, or $2 billion in unnecessary health care spending in Maryland. Bills like S.B. 773 and S.B. 813 will only exacerbate these costs and will lead to an access-to-care crisis for Maryland residents.
EMPLOYMENT LIABILITY
The Maryland General Assembly considered several bills that would expand liability for businesses across the state. First, the legislature passed H.B. 994/S.B. 839, which would have prevented some employers from asking job applicants about their criminal history until the first in-person interview. The “Ban-the-Box” legislation not only would have led employers to waste time and resources, it would have opened employers up to potential liability by discouraging them from screening applicants for legitimate safety reasons. Governor Hogan vetoed the measure and the legislature did not override him.
Another liability-expanding provision considered by the legislature was H.B. 661, a bill that would have amended the definition of “employer” by repealing a requirement that an employer have at least 15 employees for purposes of Maryland’s broad employment discrimination laws. Ultimately, the legislature enacted a separate bill, H.B. 679, that eliminated the 15-employee requirement for claims alleging harassment, among other changes, such as allowing giving independent contractors the ability to sue companies that hire them as if they were an employee. As one Maryland law firm observes, these changes “expand the risk of employer liability” and “make Maryland courts a more attractive forum for pursuing such claims” than federal courts.
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