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Maryland

Maryland has provided a mixed bag this year. There have been some promising advances in the Baltimore courts on asbestos litigation, and there have been some disappointing opinions on expansion of liability. Medical companies in Maryland face a difficult legal climate that is affecting access to medical liability insurance and could prevent important patient care, which is especially important given the ongoing COVID-19 pandemic.

MARYLAND PERSONAL INJURY ATTORNEYS REPEATEDLY SEEK LIABILITY EXPANSIONS

A PLAINTIFF ATTORNEY BAILOUT?

Over the years, Baltimore has decreased as an attractive venue to file asbestos suits. It has over 27,000 asbestos cases on the docket, many filed by the Law Offices of Peter Angelos. In 2018, Baltimore was the third most popular jurisdiction in the country for asbestos filings, and in 2019 it had dropped to sixth place. The Peter Angelos’ law firm continues to burden Baltimore courts. Of the 167 asbestos lawsuits filed in Baltimore in 2019, 162 of them were filed by that firm.

Since 2017, more than 5,000 asbestos cases have been resolved in the Baltimore courts. The courts are on track to resolve about 500 cases each month, and administrative judge Michel Pierson has told state legislators that the court is on track to resolve more than 5,000 cases a year and is working efficiently to eliminate the backlog. Because the courts are properly reviewing each case individually, plaintiffs’ attorneys are voluntarily dismissing many of their own cases. They do so because they know that the case does not have merit, and they were hoping to consolidate the cases in a way that packages the weak cases with those that may be viable. As a result, the Law Offices of Peter Angelos has decreased its asbestos filings by 71.4 percent and is voluntarily dumping hundreds of lawsuits each month.

In an effort to salvage some profits from these meritless cases, Peter Angelos is using his political clout to push a legislative bailout for plaintiffs’ attorneys in Maryland. He hired Gerald Evans of Evans and Associates and paid him over $200,000 to lobby the legislature on his behalf. Last year Angelos tried to salvage the situation by sneaking in a piece of legislation at the end of the session. The legislation would have required that all asbestos cases be resolved in mediation as opposed to the court system that is now handling them individually. Had the pandemic not interrupted the 2020 legislative session, it is possible that Peter Angelos would have tried the sneaky maneuver again. The Maryland General Assembly should resist Angelos’ efforts to involve it in the judiciary’s affairs. 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.

ELIMINATION OF STATUTORY LIMITS ON NONECONOMIC DAMAGES

The Maryland legislature perennially explores eliminating the contributory negligence rule, decreasing the standard for punitive damages, and raising or eliminating the statutory limit on noneconomic damages in personal injury, medical liability, and wrongful death cases.

Members of the legislature have sought to repeal or lower the requirement that expert witnesses actually work in the medical field they are testifying about. Currently, an expert can only devote 20 percent of his or her time to testimony. Repealing this rule would allow “expert” testimony from people who may barely practice in the field, but spend most of their time as hired-gun expert witnesses. 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.

Prior to the COVID-19 pandemic, the Maryland General Assembly considered legislation that would eliminate the state’s statutory limits on noneconomic damages. Maryland was among the first states that placed reasonable limits on pain and suffering awards, which are not capable of objective measurement and can be wildly unpredictable and excessive. Statutory limits are also critical to preserving affordable and accessible healthcare.

Yet, in 2020, Delegate David Moon (D), whose top donor is the plaintiffs’ attorney lobbying group, the Maryland Association for Justice, introduced H.B. 1037. That legislation, a variant of which is introduced every year, would allow unconstrained noneconomic damage awards if a jury finds a defendant’s conduct was beyond ordinary negligence. This would open a huge door for plaintiffs’ lawyers to circumvent the cap and eliminate the predictability that is a benefit of the law. Should this occur, Maryland residents would soon see an increase in auto and homeowner’s insurance, and higher healthcare costs, and could experience an access to care crisis.

DETERIORATING CLIMATE FOR MEDICAL LIABILITY

Maryland set a new record for the largest medical malpractice payout ever in US history. Johns Hopkins must bear the burden of a $205 million birth injury verdict after the court decreased it from $229 million due to Maryland’s statutory limit on noneconomic damages. The verdict is twice as large as the next largest medical liability verdict. The defendant has submitted two notices of appeal (search case number 24C18002909). The bulk of the $205 million verdict is $200 million earmarked for future medical expenses. As of February 2020, four reinsurers have pulled out of the Maryland market, and Johns Hopkins has said doctors may refuse to care for OB patients if the verdict is upheld. Maryland medical liability payouts are twice as large as the national average, and in Baltimore County, they are three times larger than the national average.

While Johns Hopkins has had to deal with its medical woes, the University of Maryland Medical System (UMMS) has not been spared either. In July 2020, the Maryland attorney grievance commission alleged that plaintiffs’ attorney Stephen Snyder had been attempting to blackmail the medical system for $50 million. According to the complaint, after having settled two cases with UMMS, Stephen Snyder, in conversation with UMMS, asserted that the medical system was pressuring doctors to perform lucrative transplant surgeries and that the transplant surgery quality was floundering. During these conversations he reportedly offered to pro- vide consultation services to the medical system for up to $50 million. In those conversations he had explicitly mentioned that the payment method should appear in a way as to not look like extortion, according to the complaint. In October 2020, the US Attorney in Baltimore brought charges against Snyder for attempted extortion and other violations. Snyder faces up to 20 years in prison for his conduct. Snyder is seen as only second to Peter Angelos as Maryland’s most successful plaintiffs’ attorney.

LIABILITY-EXPANDING COURT OPINIONS

There were two important liability expanding court decisions that came out of Maryland this year: Plank and Steamfitters. In Plank, the Maryland Court of Appeals created a new tort claim: breach of fiduciary duty. Prior to the decision, Maryland courts split as to whether breach of fiduciary duty was a cognizable legal theory. Now it is, and LLC members should be wary because members may now sue one another under a breach of fiduciary duty liability theory. The ruling also opens up the possibility for litigation from minority stakeholders in corporations, beneficiaries of trusts, and other parties with a lesser say in a financial arrangement.

In Steamfitters, Maryland’s highest court ruled that there is a general duty to protect neighbors’ property from third party risks. In this case, a group of Steamfitter Union apprentices were smoking outside the premises, and a cigarette butt landed on mulch and started a fire that destroyed a neighboring house. The court reasoned that the union owed a duty to guard against foreseeable risks. In allowing for liability where the causation requirement is weak, Steamfitters allows litigation against parties that are increasingly distanced from loss and would not normally be subject to litigation.

GOOD NEWS!

The Maryland Court of Appeals joined the vast majority of states when it adopted the Daubert standard for assessing the admissibility of expert testimony. This decision earned the Court a “Point of Light” in this year’s report.