The Injury Litigation Blog

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Maryland Appellate Courts Hand Down Slew of Defense Oriented Opinions

By Byron Warnken, on July 14, 2013

The Maryland Court of Appeals and the Maryland Court of Special Appeals have published a number of defense oriented opinions in Maryland civil injury cases, just in the last two weeks.  For lay people, this means the injury lawyers on are losing cases.  In fact, they are losing cases previously won at the trial level.  Many laypeople hear big jury verdicts and don’t realize that’s only the first step in getting a win for the injured party.

In one such case, a woman who had previously been awarded $5 million had her award taken away.  The woman, Jocelyn Farrar lost a lung to malignant mesothelioma five years ago.  The cause is believed to be exposure to asbestos from washing her grandfather’s clothes when she was a child.  Her father worked in a building with asbestos.  He installed Georgia-Pacific drywall, the defendant in the case.  Maryland’s court said she could not be liable because, at the time, though GP knew the material was dangerous, GP  didn’t know it was dangerous at home.  The case was handled by James Shea of Venable for the defense, and Edward Lilly of Peter Angelos’s firm for Ms. Farrar.  We do not list these attorneys on ILD, but do list other Baltimore asbestos attorneys.  Though it’s sorted by number of cases, and many are listed, not all asbestos lawyers are listed on the page provided by the link.

The Court of Special Appeals also reversed a $55 million judgment for the family of a child with cerebral palsy.  The case, Martinez v. Johns Hopkins was handled by Gary Wais, Briggs Bedigian, and Keith Forman at trial and added Byron Warnken (my father) and his associate on appeal.

Finally, the case that will have the largest impact for Maryland injury cases as a whole, Maryland’s highest court will not overturn contributory negligence in favor of comparative negligence.  Contributory negligence is, in essence, an all or nothing tort recovery system.  If the injured party contributed to their own injury through their own negligence, the injured party cannot recover in the same way as comparative negligence.  Under the comparative negligence doctrine, the liability of one party is compared against the other, allowing for partial recovery.  There are different forms of comparative negligence systems, some suggesting the more responsible party pays all, some suggesting liability is truly apportioned by percentage.  Comparative negligence is by far the more common system.  In fact, less than half a dozen jurisdictions use contributory negligence, Maryland being one of them.  Most consider pure contrib to be antiquated.  No argument here.

The Court of Appeals ruled in Coleman v. Soccer Association of Columbia that comparative negligence would not be adopted.  The Court noted it had the power to do so, but elected not to.  The opinion was 5-2.  The Court noted that the General Assembly could have changed the law and hasn’t.  The plaintiff in the case was represented by Bruce Plaxen, a Columbia injury lawyer.

In addition to opinions found on the the Maryland Judiciary website, the Washington Post was used twice as a source of information.

Opinion:  I believe that states and our Federal Government are doing a poor job as regulators.  Therefore, it falls on plaintiffs’ lawyers to, in essence, be the de facto regulators in order for potential defendants to fear bad conduct.  These decisions do not bode well for a safer society.



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