VIRGINIA: Mere allegation of a folded-over floor mat is insufficient proof of an unsafe condition

The U.S. District Court at Newport News, Virginia recently granted summary judgment in favor of a grocery store in a “trip-and-fall” case.  In the matter of Masoero v. Food Lion LLC, the Plaintiff claimed that she suffered injury due to tripping over a folded-over floor mat.  However, other than simply alleging in her complaint and discovery responses that the floor mat was folded over, the Plaintiff was not able to provide any evidence to support her claim.  In fact, at her deposition, she testified that she did not look down at the mat prior to falling, and that she does not believe that she actually saw the mat folded over.  The Court found that Plaintiff’s evidence was insufficient to establish that the Defendant had actual or constructive notice of the alleged unsafe condition, so the Court granted the Defendant’s motion for summary judgment.

Motor Vehicle "Black Boxes"

Most people are aware that airplanes come equipped with a black box that records vital information in the event of a crash.  What most people do not realize is that their own car may have that same information.  In most vehicles, either the Airbag Control Module (ACM), Engine Control Module (ECM), or the Powertrain Control Module (PCM) contains software that has the ability to monitor information such as the speed of the vehicle, the engine throttle percentage, the brake switch status and even the crash severity, among other critical data.  While this information is not accessible on all vehicles, depending on the year and make of the vehicle, Federal laws require that any vehicle manufactured after September 2012 must make access to the control module information commercially available to investigators and researchers.   Like all technology, these Event Data Recorders (EDR) are subject to failure and inaccuracies, and if you have a case in which this information may be critical to the success of your claim it is vital to retain an expert who can download, verify and interpret this information.

MARYLAND: Private Pool Fence Held to Public Standards

The Maryland Court of Special Appeals recently issued a decision that may have substantial impact throughout the State for those individuals with a pool.  In Alicia Daley Paul v. Blackburn LimitedPartnership D/B/A Country Place Apartments, et al., a three year old child slipped through the fence surrounding the apartment complex’s private pool and fell in the water.  The child suffered severe brain damage, leaving him unable to speak or control his limbs, and dependent on a feeding tube.  The Apartment Complex argued the child was a trespasser because the pool was not yet open and therefore the Apartment Complex was not responsible unless it acted “willfully or wantonly.”  The child’s parents argued that the regulations that govern how public pool fences should be constructed and maintained applied to the complex because the statutes were developed to protect a child in instances just like this. 

While the trial court awarded judgment in favor of the Apartment Complex, the Court of Special Appeals overturned the ruling and held that the public statutory requirements applied to the private pool, and the plaintiff’s could use circumstantial evidence to show that the child had gained access to the pool through the numerous holes and unfenced areas surrounding the pool in violation of that statute.  The ruling effectively rejects the notion that the child is held to a standard associated with a trespasser, and permitting the violation of the public statute to be evidence of negligence against the landowner.  Beyond instances of lead paint poisoning, this is the first time that a statute designed to apply only to publicly owned land has been applied to private property.

MARYLAND: Expert May Not Be Necessary to Show Lead Paint if There is Sufficient Circumstantial Evidence

Typically in lead paint cases, proving the existence of lead paint at a defendant’s premises years prior to the litigation requires the use of an expert.  However, the Court of Appeals of Maryland has recently broadened plaintiffs’ avenues to prove this crucial fact.  In the case of Ross v.Housing Auth. of Balt. City, the Court of Appeals reviewed the trial court’s decision to exclude the testimony of the Plaintiff’s sole expert, a pediatrician, regarding the issue of the source of the Plaintiff’s lead paint poisoning.  The Court concluded that there was not a sufficient basis for the expert’s opinions that the Defendant’s property was the source of the lead poisoning.  The Court noted that the decision to exclude that portion of the expert’s testimony was at the discretion of the trial judge, and the Court concluded that there had been no abuse of that discretion by the trial judge.  However, the Court also noted that the parties and the trial judge appeared to have ignored the possibility that circumstantial evidence may have been sufficient to permit the issue to go to the jury.  Therefore, the Court of Appeals remanded the case to the trial court to conduct an evidentiary hearing to determine whether the remaining evidence supported a finding that the Defendant’s property was the source of the lead poisoning.

This ruling clearly states a position that the plaintiff bar has been arguing for years.  In light of the evidentiary hurdles created by the extended passage of time in lead paint cases, plaintiffs’ attorneys have been arguing that an expert is not needed where circumstantial evidence establishes that a defendant’s property is the source of a plaintiff’s lead paint poisoning.  While the Ross decision will probably not greatly affect how plaintiffs proceed with prosecuting lead paint cases, the decision will make it more difficult for a defendant to win summary judgment in a case in which the plaintiff has no qualified expert to testify that the lead poisoning occurred on the defendant’s premises.

MARYLAND: First Maryland Orthopedics Physician Consent to Discipline

A few months ago, this blog reported that physicians with Maryland Orthopedics, based in Laurel, Maryland, had been charged with various violations by the Maryland State Board of Physicians.  Recently, an agreement was reached between the Board and Dr. Franchetti.  The resulting Consent Order is available on the Board’s website which is at http://www.mbp.state.md.us/.   The Consent Order reflects that Dr. Franchetti agreed to a 3-year probation and a $25,000 fine for failing to meet the appropriate standards for the delivery of quality of medical care, gross overutilization of health care services, and failing to keep adequate medical records.  The Board dismissed the charge of willfully submitting false statements to collect fees for which services were not provided.

The Consent Order is publicly available through the Maryland Public Information Act  (State Gov’t Art.  Sec. 10-611).  However, Health Occupations Article,  Section 14-410(a)(2) of the Maryland Code makes the Consent Order inadmissible in civil cases in the courts of Maryland.  

MARYLAND: New Gun Control Law Passes Senate

On Thursday, February 28, 2013, the Maryland Senate passed Senate Bill 281, titled the “Firearm Safety Act of 2013.”  The bill, which must still be passed by the Maryland House of Delegates before it can become state law, would ban the sale of “assault weapons” including, among others, semi-automatic pistols like the AA Arms AP–9 and the Colt AR-15.  The bill also requires any handgun purchasers to be licensed and fingerprinted, and limits gun magazines to 10 bullets.  The bill will likely be passed by the House of Delegates in the near future.

For More Information:

Senate Bill 281 Text

“Md. Senate passes gun control bill,” Erin Cox, The Baltimore Sun, February 28, 2013.

“Maryland’s about to pass strict gun control; Beretta may leave,” Catherine Poe, The Washington Times, March 5, 2013. 

VIRGINIA: Expert Cannot Rely on Evidence that is Not Substantially Similar

In the recent Virginia Supreme Court opinion in Funkhouser, Adm’r v. Ford Motor Co., a products liability case involving a failure to warn of the potential of a key-off fire originating behind the dashboard in Windstar vans, the Court reviewed the Albemarle Circuit Court holding that 1.) the Plaintiff could not present evidence on seven other key-off fires occurring in Windstar vans, because there was no evidence that the cause of the fires was the same as the one at issue, and 2.) Plaintiff’s expert, opining on the reasonable reaction of an automobile manufacturer to the other key-off fires, could not rely upon those inadmissible fires in forming his opinion.  

The Virginia Supreme Court held that the Circuit Court did not error in these holdings.  In applying the “substantially similar” test, the Court noted that the Plaintiff could not show that the cause of the other seven fires was “substantially similar” to the one at issue.  Instead, the Plaintiff’s evidence showed that the effect of the other seven key-off fires was similar.   The Court that the effect was not necessarily indicative of the cause, and was insufficient to conclude that the cause was substantially similar.  The Court then held that Plaintiff’s expert’s testimony, governed by  Virginia Code § 8.01-401.1,  could not be based on evidence that failed the “substantial similarity” test.   While § 8.01-401.1 allowed experts to express opinions based on sources that were not admissible as evidence, the Court noted that permitting the expert to rely upon evidence that was not substantially similar would permit the expert to offer opinions that were based on speculation or irrelevant evidence, and therefore, based on insufficient factual basis.

Three judges filed a concurrence and dissent opinion, agreeing that precluding evidence of three of the fires was proper but that the other four fires should have been allowed under the “substantial similarity” test established before this case.  Additionally, the dissent observed that Virginia Code § 8.01-401.1, as written, permitted experts to rely upon inadmissible evidence in formulating their opinion without exception.   The holding of the majority effectively created a previously unrecognized exception for evidence that was inadmissible because it was not “substantial similar.”