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Fall 2013
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The Defense Line: Fall 2013

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The Defense Line: A Publication From The Maryland Defense Counsel, Inc.


justiceWilson Elser Obtains Dismissal of Case of First Impression under Medicare as Secondary Payer Act

Robert W. Goodson of Wilson Elser’s Washington, D.C. office, representing three health care providers, recently won a motion to dismiss a case brought in the U.S. District Court for the District of Maryland under 42 U.S.C. § 1395y (b)(3)(A). This statute contains a private cause of action for double damages when a primary plan “fails to provide for primary payment (or appropriate reimbursement)” in accordance with Medicare as a Secondary Payer.
Plaintiff obtained a jury verdict in a medical malpractice case and judgment was entered in her favor before the Circuit Court for Prince George’s County. Medicare currently has a lien on Plaintiff’s judgment.

Defendants have appealed and taken every precaution to stay the enforcement of the judgment while the appeal is pending by filing an Affidavit executed by their insurer pursuant to Maryland Rule 8-424. During the pendency of the appeal, Plaintiff filed a complaint in federal court, using the Medicare as Secondary Payer Act to argue that she was entitled to damages in twice the amount of the Medicare lien. At oral argument on the Defendants’ motion to dismiss, Mr. Goodson argued that Plaintiff’s claim was not ripe because the judgment could not be enforced while the appeal was pending.

Judge Titus agreed and dismissed the case on March 20, 2013. This is an important decision in light of recent promotion by plaintiffs’ attorneys in the Washington/Baltimore area that the private cause of action permits double recovery when a judgment is entered against a health care provider or tortfeasor. In a lengthy oral opinion, Judge Titus reasoned that Plaintiff’s claim was premature as she would not be able to enforce the state court judgment while appeal was pending in the Court of Special Appeals. He also opined that the circumstances of the case did not fall within the statute because Defendants did not “fail to pay” Medicare.

Robert Brittingham, et ux. v. Elliott’s Hardware, Inc., Baltimore City Circuit Court, Asbestos Litigation, Case No. 24x12000852.

Robert E. Scott, Jr., Eric M. Leppo, and Semmes, Bowen & Semmes obtained summary judgment on behalf of an Ocean City, Maryland retail hardware store in a mesothelioma case. The Brittingham matter was given an expedited trial date in the April 2013 Burke Trial Group as a living mesothelioma Plaintiff but was severed from the trial group when the court granted a Motion to Change Venue to Worcester County filed by various Defendants. The Plaintiff alleged that he purchased asbestos-containing joint compound products from the store, and sought to hold the company liable under claims of strict liability, negligence and breach of warranty. On April 18, 2013, the Honorable John Glynn granted the store’s Motion for Summary Judgment relying upon his summary judgment ruling for 84 Lumber in a prior case (Neophytos Kacoyianni v. John Crane-Houdaille Inc et al, Case No. 24x10000430) applying Maryland’s statute of repose. Defendant’s Motion for Summary Judgment was also premised upon Maryland’s sealed container defense in light of the store’s role as solely a retail product seller that did not alter or modify the product or its warnings in any way.

Jury Awards Brethren Mutual $500,000 for Fire Caused by Manufacturing Defect

In January of 2010 a fire destroyed a waterfront home in Chesapeake City, Maryland. Assisted by fire investigator Charles Hughes and electrical engineer Robert Simpson, Brethren Mutual, which insured the property, concluded that the transmitter of a wireless pet containment system manufactured by PetSafe was the cause of the fire. On June 14, 2012, after a four day trial in the United States District Court in Baltimore, a jury agreed, finding that a manufacturing defect in the circuit board of the transmitter was the cause of the fire. The jury awarded Brethren Mutual $500,000 in damages.

The Niles, Barton & Wilmer team consisting of Chairman of the Litigation Department George E. Reede, Jr., along with Associate Mark Talty and Paralegal Christine Boessel, who represented Brethren Mutual at trial.

The Waranch & Brown, LLC, team of Neal M. Brown and Christina N. Billiet successfully defended Greater Baltimore Medical Center in a wrongful death case filed by Cardaro & Peek, LLC. The case was tried for six days in the Circuit Court for Baltimore County before Judge Michael Finifter. The jury returned a defense verdict on April 24, 2013.

Frank Walchuck, 69 years old, presented to GBMC on March 29, 2011, complaining of two days intermittent chest pain. The triggering episode for his chest pain involved an unusual amount of heavy exertion. Mr. Walchuck was admitted for cardiac monitoring and a stress test was scheduled for the next day. Early on the morning following admission, Mr. Walchuck began complaining of back and chest pain, and suddenly coded. GBMC health care providers were unable to resuscitate him.

Plaintiffs alleged that Mr. Walchuck died as a result of a failure to diagnose unstable angina and corresponding failure to fully anticoagulate with heparin.

GBMC responded that Mr. Walchuck was admitted to rule out possible acute coronary syndrome, but that a diagnosis of unstable angina could not have been made prior to his death. Under those circumstances, full anti-coagulation on heparin was not indicated.

The jury found GBMC not liable for Mr. Walchuck’s death.

Laura Steinbach v. Giant Food LLC, Unreported decision, Before the Court of Special Appeals, No 2203, September Term, 2011

Kevin O’Neill, a Member of Schmidt, Dailey, & O’Neill, L.L.C. in Baltimore successfully argued before the Court of Special Appeals, the panel was comprised of Judge Zarnoch, Judge Wright and Judge Moylan. Claimant Laura Steinbach filed a workers’ compensation claim alleging she suffered from cervical degenerative disc disease arising from repetitive trauma in the course of her employment with Giant Food LLC as a cashier. She filed the claim as an Occupational Disease, but amended it to be an accidental injury at the hearing before the Commission, all while acknowledging that there was no specific incident or “accident”. The claim was disallowed by the Commission, and Claimant Steinbach filed an appeal to the Circuit Court for Prince George’s County. A jury reversed the Commission’s decision and found that she had sustained an accidental injury arising out of and in the course of her employment. Mr. O’Neill on behalf of Giant Food and its Insurer filed a JNOV Motion alleging that the jury’s verdict was an error of law, and the Judge Leo Greene of the Circuit Court for Prince George’s County granted the motion and set aside the jury verdict. Claimant Steinbach appealed to the Court of Special Appeals arguing that the case of Harris v Howard County Board of Education, 375 Md. 21, 825 A.2d 365 (2003) opened the door for repetitive trauma claims to be accidental injuries now that there is no unusual activity requirement and relied on Foble v. Knefely among others to argue that repetitive trauma claims can now be accidental injuries.

The Court of Special Appeals disagreed with the Claimant’s arguments, and affirmed the Circuit Court Judge’s decision to grant the JNOV in favor of the Employer/ Insurer. The Court stated that Harris did not eliminate the need for the injury to be accidental in nature in order for it to be found compensable. The Court explained that Harris simply lessened the focus upon the activity leading to the injury (no need for it to be unusual) but the requirement that the injury be accidental continues in force per this Court’s analysis. The Court relied upon Judge Zarnoch’s opinion in Pro-Football v. Tupa, 197 Md.App. 463, 14 A.3d 678 (2011), aff’d, 428 Md. 198, 51 A.3d 544 (2012), in which he wrote that for the injury to be accidental it must happen by chance and without design, and take place unexpectedly and unintentionally. Ms. Harris had in fact had an accident when she heard the crack in her back and screamed. There was no dispute that no such event took place in the instant case. They also acknowledged that there is already a separate category for repetitive trauma claims or those that may not qualify as “accidental” in the form of occupational diseases but that did not apply to the facts before the Court in this case.

Claimant filed a Petition for Cert that was denied.

Analyzing the Necessity of Expert Testimony With Respect to “Substantial Factor” Causation in Lead Paint Actions: Ross v. Housing Auth. of Baltimore City

The Maryland Court of Appeals, as a matter of first impression, took up the issue of “substantial factor” causation in a lead paint poisoning action and considered whether expert testimony was necessary in order to establish that a particular property was a “source” of a child plaintiff’s elevated blood lead levels. In Ross v. Housing Auth. of Baltimore City, 63 A.3d 1 (Md. 2013), the Court of Appeals held that the Circuit Court did not abuse its discretion in excluding the plaintiff’s causation expert, but that summary judgment, solely based upon that exclusion, was inappropriate.

Facts and Procedural History

The plaintiff, Cherie Ross, was born on October 6, 1990. From birth through 1992, Ms. Ross lived at 934 N. Gilmor Street, owned by Bernard Dackman. She then moved to 546 N. Payson Street, owned by the Housing Authority of Baltimore City (“HABC”), and resided there from June 1992 through 1996. Ms. Ross sued Mr. Dackman and HABC alleging that she sustained injuries resulting from exposure to lead paint at both properties during the respective tenancies. Mr. Dackman settled with Ms. Ross shortly before trial.

Before trial, the Circuit Court granted HABC’s motion in limine to exclude a portion of Dr. Jacalyn Blackwell-White’s testimony concerning the source of Ms. Ross’ alleged lead exposure. The court then granted HABC’s oral motion for summary judgment on the basis that Ms. Ross could not prove causation without expert testimony.

The Court of Special Appeals, in an unreported opinion, affirmed the Circuit Court’s exclusion of Dr. Blackwell-White but did not consider whether summary judgment was appropriate because Ms. Ross failed to separately challenge that ruling. The Court of Appeals granted certiorari to consider both issues: (1) whether the Circuit Court abused its discretion in excluding Dr. Blackwell-White, and (2) whether the Circuit Court erred as a matter of law in granting summary judgment based on the absence of a causation expert.

The Court’s Reasoning

With respect to the exclusion of Dr. Blackwell-White, the Court of Appeals held that the Circuit Court did not abuse its discretion in finding that she lacked the qualifications to provide expert testimony as to the source of a child’s lead exposure and that she lacked the necessary factual basis to identify the source of exposure. Specifically, the Court noted the undisputed evidence of various possible alternative causes of her elevated blood lead levels. Because Dr. Blackwell-White testified that she was simply identifying the “potential risk” of particular properties and could not provide any certainty with her opinions as to causation, the Court found that her conclusion as to “source” was likely to confuse the jury. Thus, the Circuit Court was within its discretion to exclude that “source” testimony.

However, this exclusion was not a “fatal blow” to Ms. Ross’ case. The Court remanded the case back to the Circuit Court on the basis that the fact-finder could infer from the evidence that lead exposure at 546 N. Payson Street was a substantial contributing factor to her blood lead levels without the testimony of a causation expert. The evidence consists of inspection reports identifying lead on the property, testimony that Ms. Ross was exposed to paint dust and chips at the property, and medical records indicating that her blood lead levels rose during the first year they resided at 546 N. Payson Street.

Tydings & Rosenberg Prevails in Defense of ADA and Maryland’s White Cane Law Claims

Tydings & Rosenberg attorneys, William Carrier and Kelly Marzullo, prevailed in a case brought by Blind Industries & Services of Maryland, Inc., and three individual plaintiffs, against Route 40 Paintball Park in the U.S. District Court for the District of Maryland. At issue were claims that the Paintball Park wrongfully denied access to the plaintiffs under the American Disabilities Act and Maryland’s White Cane law.

The case presented novel issues in the recreational industry under the ADA and White Cane Law, including whether the plaintiffs could be denied access based on the park’s customary rules and regulations, the appropriateness of the defendant’s assessment and conclusion that the individual plaintiffs presented a direct threat to others, and whether and how the park’s usual practices needed to be changed to accommodate the plaintiffs.

The case was tried before Judge William M. Nickerson in February 2013, and a decision was issued on March 21, 2013.

Robert C. Morgan and Joseph S. Johnston of Morgan Carlo Downs & Everton, P.A. (Hunt Valley) recently obtained a defense verdict in Circuit Court of Maryland for Frederick County for an oral and maxillofacial surgeon who allegedly failed to diagnose oral squamous cell cancer in a patient. The plaintiffs alleged that the failure to diagnose caused the patient’s death. The plaintiff’s decedent, a 43-year old male, presented to the defendant oral and maxillofacial surgeon with complaints of left-sided facial pain in September 2006. The defendant performed a thorough history and physical examination and ordered a panoramic x-ray and did not locate any lesion or other sign of disease upon intraoral examination. The plaintiff was told to return in one week with a pain diary but he did not return for a follow-up exam until more than 10 weeks later, in December 2006. Upon follow-up presentation in December 2006, the patient complained of left-sided facial pain and defendant again performed a thorough history and physical examination and did not locate any lesion or other sign of disease after looking inside the mouth. The defendant diagnosed the patient as having atypical facial pain with possible trigeminal neuralgia and referred the patient to a neurologist and the neurologist thereafter performed regular examinations on the patient, through March 2007. In May 2007, approximately five and a half months after the defendant’s last examination of the patient, an otolaryngologist (ear, nose and throat surgeon) located a squamous cell oral cancer tumor in the lower left-side of the patient’s oral cavity, in the base of tongue and retromolar trigone area.

The plaintiffs claimed that the defendant failed to diagnose the tumor during the follow-up examination in December 2006 and that oral cancer was causing the patient’s facial pain, not trigeminal neuralgia, and that further tests such as an MRI scan would have detected the tumor. The defense successfully argued that the defendant complied with the standard of care in all respects during his follow-up examination of the patient and that the standard of care did not require an MRI scan or any other test. The defense also proved that the patient had an aggressive type of oral cancer that was not even present during the defendant’s follow-up examination of the patient and did not become clinically detectable until shortly before the tumor was diagnosed by the otolaryngologist. The jury returned a defense verdict finding no breach in the standard of care.

Paluba v. MASG

Craig B. Merkle and Adam Kelley obtained a defense verdict in a wrongful death suit on behalf of a general surgeon in the Circuit Court for Wicomico County, Maryland. In the case of Paluba v. MASG, the plaintiffs alleged that the defendant surgeon failed to properly repair and treat an anastamotic leak discovered during a low anterior resection for rectal cancer. The patient's subsequent course was complicated by a persistent high ileostomy output, Klebsiella pneumonia, an inflamed abdominal aortic aneurysm, an infected endograft and an aortoenteric fistula. After 8 days of trial, the jury determined that the defendant had not breached the standard of care in the decisions made at the time of surgery or in the patient's postoperative management. Nine physicians testified during the trial on a wide range of issues, including, surgical oncology, infectious disease, vascular surgery, and gastroenterology.

Ross v. Manor Care

Thomas V. Monahan, Jr. and Elizabeth A. Hafey obtained a defense verdict in favor of Manor Care Largo MD, LLC, a nursing home in Prince George’s County, after a six-day trial. In Lissa Ross v. Manor Care Largo, the 10 children of James Johnson alleged that their father fell from a wheelchair at Manor Care Largo, sustained an injury to his brain that necessitated surgery six days later and, ultimately, died less than 24 hours after the brain surgery. After hearing defense experts in geriatrics, neurosurgery and neuroradiology, the jury concluded that there was no breach in the standard of care by any nurses or staff at Manor Care Largo.

Sheppard v. DCH

Craig B. Merkle and Adam Kelley obtained a defense verdict in Sheppard v. DCH, which was filed and tried in the Circuit Court for Prince George’s County. The plaintiff alleged that she had sustained a tear of her airway when she was intubated for surgery to remove infected abdominal hernia mesh. The plaintiff developed significant air in her neck and mediastinum the day after surgery and was reintubated and hospitalized for an additional 10 days. Mr. Merkle and Mr. Kelley successfully represented the anesthesia team which consisted of an anesthesiologist and a CRNA.

Hoben v. Dr. S

Craig B. Merkle and Adam Kelley obtained a defense verdict in the case of Hoben v. Dr. S, where the plaintiff alleged he sustained a bladder perforation as a result of a urethral sling placement and a cystodilation. The plaintiff developed multiple postoperative complications from the bladder perforation and repair that necessitated further surgery and 40 days in the hospital. Plaintiffs alleged negligent surgical technique, lack of informed consent and that the surgery was not indicated. The defense countered that all conservative measures had been exhausted to treat the plaintiff’s incontinence following radical prostatectomy, that appropriate consent had been obtained, and that the bladder injury was a non-negligent and recognized complication of the procedures. After four days of evidence, a jury in the Circuit Court for Baltimore County returned a verdict in favor of the defense on all counts.

Reversing a $55 million verdict, Goodell DeVries obtains new trial from Court of Special Appeals in Baltimore City birth injury case.

One year after Johns Hopkins Hospital was hit with a verdict of $55 million in a single-plaintiff birth injury case, the Court of Special Appeals has vacated the judgment entirely and ordered a new trial. See Martinez v. Johns Hopkins Hosp., 1394 SEPT TERM 2012, --- A.3 ----, 2013 WL 3337277 (Md. Ct. Spec. App. July 3, 2013). The Baltimore City verdict was widely cited as the largest medical malpractice award in Maryland history, exceeding even what the Plaintiffs’ attorneys had requested.

However, legal error required a new trial. Specifically, the Hospital was precluded from putting on evidence at trial of the nurse-midwife’s negligence on the grounds that the uninsured midwife was not a party in the case. Instead, the trial judge limited the Hospital to merely reciting what the nurse-midwife did and prohibited it from characterizing anything she did as improper, negligent, or in violation of the standard of care for nurse-midwives. Plaintiffs then exploited the ruling to repeatedly suggest to the jury that the midwife’s grossly incompetent and dangerous treatment was appropriate for nurse-midwives. The appellate court explained that “the effect of the trial court’s ruling was that Martinez was permitted to argue to the jury that [the midwife’s] treatment of Martinez was appropriate. The Hospital, however, was precluded from arguing that [the midwife’s] actions were negligent.” Slip op. at 49.

Donald L. DeVries, Jr. led the Goodell DeVries appellate team that secured this important win. Assisting him on the briefing was Janet A. Forero, Derek M. Stikeleather and Meghan Hatfield Yanacek.

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