Lead Litigation Conference 2013

November 14-15, 2013

Pretrial Motion Practice

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PRE-TRIAL MOTIONSJ. Marks Moore III

Semmes, Bowen & Semmes25 S. Charles Street, Ste 1400

Baltimore, Maryland 21202

mmoore@semmes.com410-576-4722

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I. Mandatory MotionsII. Permissive MotionsIII. General MotionsIV. Motions for Summary JudgmentV. Discovery MotionsVI. Motions in Limine

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I. Mandatory Motions (Md. Rule 2-322(a))-before answer or waived

A. Personal JurisdictionB. Improper VenueC. Insufficiency of ProcessD. Insufficiency of Service of Process

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II. Permissive Motions(Md. Rule 2-322(b))-filed anytime

A. Subject Matter JurisdictionB. Failure to State Claim Upon Which Relief

Can Be GrantedC. Failure to Join PartyD. Discharge in BankruptcyE. Governmental Immunity

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III. General Motions

A. Motion to Dismiss (Md. Rule 2-311)1. On the Face of the Complaint (e.g., statute of

limitations)2. Introduction of Facts Makes it an MSJ

B. Motion for More Definite Statement (Md. Rule 2-322(d)) (e.g., multiple properties/owners all during same time period)

C. Motion to Strike (Md. Rule 2-322(e))

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IV. Motions for Summary Judgment Md. Rule 2-501

A. TimingB. MotionC. Response D. Defense Not AvailableE. Contradictory Affidavit or

StatementF. Bases

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IV. Motions for Summary Judgment A. Timing

Scheduling Order (3 months) a motion for summary judgment may be

made at any time – Benway v. MPA, 191 Md.App. 22, 989 A.2d 1239 (2010), citing Rodriguez v. Clarke, 400 Md. 39, 74 n.21, 926 A.2d 736, 757 n.21, recon. denied (2007)

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IV. Motions for Summary Judgment B. Motion

Rule 2-501 (a)

(a)  Motion.- Any party may make a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.  The motion shall be supported by affidavit if it is (1) filed before the day on which the adverse party's initial pleading or motion is filed or (2) based on facts not contained in the record.

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Rule 2-501 (c)

(c)  Form of Affidavit.- An affidavit supporting or opposing a motion for summary judgment shall be made upon personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.

movant must support the motion with “facts that would be admissible in evidence” – Davis v. Goodman, 117 Md. App. 378, 392-93, 700 A.2d 798, 804-05 (1997)

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IV. Motions for Summary Judgment

C. Response

Rule 2-501 (b)

(b)  Response.- A response to a written motion for summary judgment shall be in writing and shall (1) identify with particularity each material fact as to which it is contended that there is a genuine dispute and (2) as to each such fact, identify and attach the relevant portion of the specific document, discovery response, transcript of testimony (by page and line), or other statement under oath that demonstrates the dispute.  A response asserting the existence of a material fact or controverting any fact contained in the record shall be supported by an affidavit or other written statement under oath.  

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Rule 2-501 (c)

(c)  Form of Affidavit.- An affidavit supporting or opposing a motion for summary judgment shall be made upon personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.  

non-movant must support the opposition with “facts which would be admissible in evidence” – Chantel Assoc. v. Mount Vernon Fire Ins. Co., 338 Md. 131, 149-50, 656 A.2d 779, 788 (1995), citing Beatty v. Trailmaster, 330 Md. 726, 736, 625 A.2d 1005, 1011 (1993)

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IV. Motions for Summary Judgment D. Defense Not Available

Rule 2-501 (d)

(d)  Affidavit of Defense Not Available.- If the court is satisfied from the affidavit of a party opposing a motion for summary judgment that the facts essential to justify the opposition cannot be set forth for reasons stated in the affidavit, the court may deny the motion or may order a continuance to permit affidavits to be obtained or discovery to be conducted or may enter any other order that justice requires.

 

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IV. Motions for Summary Judgment E. Contradictory Affidavit or Statement

Rule 2-501 (e)

(e)  Contradictory Affidavit or Statement.-   

(1) A party may file a motion to strike an affidavit or other statement under oath to the extent that it contradicts any prior sworn statement of the person making the affidavit or statement. . . .   

(2) If the court finds that the affidavit or other statement under oath materially contradicts the prior sworn statement, the court shall strike the contradictory part [unless certain circumstances exist].

 

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IV. Motions for Summary Judgment F. Bases

1. Condition Precedent 2. Immunity3. Other Affirmative Defenses4. Wrong Property/Wrong Defendant5. Member of LLC/Officer or Director of

Corporation6. Causation7. Damages8. Consumer Protection Act

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IV.F.1. Condition Precedent

Maryland Tort Claims ActLocal Government Tort Claims Act (plaintiff must plead compliance – Hansen v. City of Laurel, 420 Md. 670, 684, 25 A.3d 122, 131 (2011))

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IV. F. 2. Immunity

Governmental (governmental v. proprietary function – Mayor & City Council v. State ex rel. Blueford, 173 Md. 267, 195 A. 571 (1937))

Charitable (judicially created as to entity – Abramson v. Reiss, 334 Md. 193, 638 A.2d 743 (1994) – statutorily created as to officers, employees, directors, etc. – Md. Code Ann., Cts & Jud. Proc. §5-406)

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IV. F. 3.Other Affirmative Defenses Accord and Satisfaction (settlement,

release, payment) Estoppel Issue Preclusion Res Judicata

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IV. F. 4. Wrong Property/Wrong Defendant

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IV. F. 5. Member of LLC/Officer or Director of Corporation

although member of LLC generally not liable for torts committed by, or contractual obligations acquired by, the LLC, member can be personally liable if he satisfies some part of the definition of “owner” under Balt. City Hous. Code (“controls the… title to any dwelling or dwelling unit…”) – Allen v. Dackman, 413 Md. 132, 145-46, 991 A.2d 1216, 1223-30 (2010)

president of corporation not liable for torts/acts of corporation, because he did not meet definition of “operator” under Balt. City Hous. Code (did not have “charge, care or control…”) – Toliver v. Waicker, 210 Md. App. 52, 64-70, 62 A.3d 200, 207 -11, cert denied, 432 Md. 213, 68 A.3d 287 (2013)

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IV. F. 6.Causation

Plaintiff’s medical/source expert- Md. Rule 5-702

- Frye-Reed

- Framework- Brown v. Dermer

- Bartholomee v. Casey and Johnson v. Rowhouses, Inc.

- Davis v. Goodman- Dow v. L&R Properties, Inc.

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Md. Rule 5-702

Testimony By ExpertsExpert testimony may be admitted . . . if the court

determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact at issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

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Rule 5-702-(3) two distinct sub-factors

- expert must have an adequate supply of data- expert must employ a reliable methodology in analyzing that data- CSX Transp., Inc. v. Miller, 159 Md. App. 123, 189, 858 A.2d 1025, 1063 (2004), cert. granted and then dismissed, 387 Md. 351, 875 A.2d 702 (2005), citing Wood v. Toyota Motor Corp., 134 Md. App. 512, 521-27, 760 A.2d 315, 321-23, cert. denied, 362 Md. 189, 763 A.2d 735 (2000)

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Frye-Reed Frye v. United States, 293 F.1013 (D.C. Cir. 1923),

Reed v. State, 283 Md. 374, 391 A.2d 364 (1978) basis of scientific expert’s opinion must be shown to

be generally accepted as reliable within the expert’s particular scientific field – Blackwell v. Wyeth, 408 Md. 575, 588, 971 A.2d 235, 243 (2009)

Frye-Reed analysis required only when proposed expert testimony involves a “novel scientific method” – has to be some assurance that the novel method has gained acceptance within the relevant scientific community – Dixon v. Ford Motor Co., 433 Md. 137, 149-50, 70 A.3d 328,335 (2013)

Brown v. Dermer357 Md. 344, 744 A.2d 47 (2000)

To make out a prima facie case in a negligence action, plaintiff must show violation of a statute/ordinance [§703(a)(3) of the Baltimore City Housing Code – no “flaking, loose or peeling paint or paper”] designed to protect the plaintiff

Evidence of flaking, loose or peeling paint gets case to jury

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Bartholomee v. Casey103 Md. App. 34, 651 A.2d 908 (1994), cert. denied, 338 Md. 557, 659 A.2d 1293 (1995)

Johnson v. Rowhouses, Inc.120 Md. App. 579, 707 A.2d 933 (1998)

Defendant landlord’s conduct must be a “substantial factor” in causing the injury

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Davis v. Goodman117 Md. App. 378, 700 A.2d 798 (1997)

Mere fact that most old houses in Baltimore have lead-based paint does not mean that a particular old Baltimore house contains lead-based paint

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Dow v. L&R Properties, Inc.,144 Md. App. 67, 796 A.2d 139 (2002)

SJ reversed -record contains circumstantial evidence from which trier of fact could infer presence of lead-based paint

MD’s Lead Act does not create evidentiary presumption that pre-1950 rental homes contain lead-based paint (citing Davis)

Circumstantial evidence may support a determination of negligence if it amounts to a reasonable likelihood or probability rather than a possibility

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Recent Decisions circumstantial evidence insufficient to support

expert’s opinion that defendant’s house was source of lead exposure – Taylor v. Fishkind, 207 Md. App. 121, 51 A.3d 743 (2012), cert. denied, 431 Md. 221, 64 A.3d 497 (2013)

pediatrician not qualified to offer expert opinion – City Homes, Inc. v. Hazelwood, 210 Md. App. 615, 63 A.3d 713, cert. denied, 432 Md. 468, 69 A.3d 476 (2013)

expert testimony lacked factual basis - expert testimony not required to prove source causation – circumstantial evidence sufficient - Ross v. Hous. Auth. of Balt. City, 430 Md. 648, 63 A.3d 1 (2013)

owners not liable in absence of evidence that only possible source of exposure was owner’s property – West v. Rochkind, 212 Md. App. 164, 66 A.3d 1145 (2013), cert. denied (10/21/13)

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pediatrician lacked requisite qualifications and adequate factual basis to render opinion identifying source of plaintiff’s lead exposure – Hamilton v. Dackman, 213 Md. App. 589, 75 A.3d 327 (2013)

insufficient factual evidence that subject property was substantial contributing source of plaintiffs’ injuries – Hamilton v. Kirson, No. 1530, Sept. Term, 2011, April 30, 2013, cert. granted (8/14/13)

plaintiffs’ medical expert lacked sufficient factual basis to opine as to source of plaintiffs’ lead exposure – Alston v. 2700 Virginia Ave. Assoc., No. 0011, Sept. Term, 2012, July 10, 2013, cert. granted (10/18/13)

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IV. F. 7. Damages

Plaintiff’s vocational rehab expert

- factual basis- methodology

Plaintiff’s economist- methodology

- discount rate- life expectancy- tables

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IV. F. 8. Consumer Protection Act must be defective paint at inception of

lease – Benik v. Hatcher, 358 Md. 507, 750 A.2d 10 (2000)

minor tenant a consumer? change in ownership – new lease – new

“inception?”

Speaker

J. Marks Moore IIISemmes Bowen & Semmes

J. Marks Moore IIISemmes Bowen & Semmes, APC410.576.4722mmoore@semmes.com

Questions