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Litigation in Brief
Fall 2011
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DeCaro, Doran, Siciliano,
Gallagher & DeBlasis, LLP
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Whose Profile is this Anyway?
Using Social Media in Litigation
By Erin Hebert Cancienne
Everyone knows there is a wealth of information available in social media. From Facebook, to MySpace, to Twitter, both public and private matters become the subject of public posts for anyone to read, interpret and use against the poster. In litigation, the information could be key to proving the thoughts or actions of another party. One issue is how to prove that the information on a profile is really attributable to the alleged user.
This was exactly the issue before the Court of Appeals in Antoine Levar Griffin v. State of Maryland. A profile on MySpace, which was attributed to a criminal defendant's girlfriend, had the following post, "FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" "Boozy" is the nickname for the criminal defendant. After this post appeared, a witness for the state became uncooperative. The prosecutor argued that this post was an attempt to tamper with a witness.
During the trial of the matter, the prosecutor introduced a printout of a MySpace page that was allegedly from the girlfriend of the criminal defendant. To authenticate the profile, a police investigator testified that the profile had a picture of the defendant and the girlfriend, and there were references on the page to the defendant's nickname, and the girlfriend's birth date. Both the trial court and the Court of Special Appeals held that this information was enough to authenticate the printout and to allow a redacted portion of the profile page, including the portion with the message "SNITCHES GET STITCHES", to be admitted into evidence.
However, the Court of Appeals held the profile printout was not properly authenticated and the case was reversed and remanded for a new trial. The opinion of the Court acknowledges that anyone can create a MySpace, Facebook, or Twitter profile by having an email address and asserting they are over a certain age. However, the Court's concern lies in the ability of any person to create a profile in someone else's name. The majority of the Court held:
"The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that [a particular person] was its creator and the author of the "snitches get stitches" language."
While the Court of Appeals did not find the MySpace page was authenticated in this matter, it did offer other ways to authenticate social media pages. These included questioning the person who allegedly made the page, searching the person's computer, obtaining records directly from the social networking sites via subpoena. There are practical problems to each of these solutions, including witnesses invoking their right against self-incrimination (witness tampering is a crime), witnesses denying that they created their own profiles, the expense of computer forensics, and the lack of cooperation of some social media companies to respond to subpoenas.
It will be interesting to see where the lines for authentication will be drawn in the future. There is a possibility that a certain threshold of verifiable content will be enough (i.e. several pictures over a period of years). There is also a possibility that admitting to creating a profile will be insufficient to authenticate that a specific post was made by the witness, if the witness denies that post. As social media continues to expand, and more attorneys start mining social media for gems against opponents, there will be other cases to tackle this issue and define the murky authentication boundaries. Check our blog at www.decarodoran.com to follow this increasingly important issue.
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Recent Developments - Maryland
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Uninsured/Under-insured Motorist Coverage
Recently, the Maryland Court of Appeals carved out limits to coverage when a Maryland plaintiff creatively attempted to recover underinsurance motorist coverage as a resident relative on the policy of a vehicle not involved in the incident. The case involved a collision whereby Patsy Frey failed to yield to a motorcyclist, Ray Comer, Jr. Comer suffered serious injuries and incurred over $200,000 in medical bills. Comer's motorcycle had UM/UIM coverage limits of $50,000 with Progressive Insurance Company, and Frey's vehicle had liability limits of $100,000 with Erie Insurance Company. Comer accepted $100,000 from Frey's insurance company, and then turned to his UM/UIM coverage.
Since Comer's low-limit underinsured motorist coverage provision was not triggered, Comer filed an underinsured motorist coverage claim with his father's insurance company, GEICO, which insured his father's vehicle with a $300,000 limit. Comer claimed that since he lived with his father, he was an "insured" under the GEICO policy and, therefore, able to collect under that UM/UIM policy. GEICO denied Comer's claim based on the assertion that, at the time of the accident, Comer was occupying a motor vehicle owned by an insured (the motorcycle) which was not covered by the GEICO policy.
The Court of Appeals analyzed the policy and found it to clearly exclude UM/UIM coverage for bodily injury to an insured while the insured was occupying a vehicle owned by the insured, but not covered by the GEICO policy. In response to Comer's argument that Maryland only permits exclusions by statute, the Court explained that such an exclusion is expressly permitted by Maryland Insurance Article, §19-509(f)(1). The purpose of that provision is to prevent a family from insuring only one of several vehicles with the intention of collecting under the policy for accidents arising from any of the other vehicles. Similarly, the exclusion prevents an owner from purchasing high limits of insurance for one vehicle under one policy and low limits of insurance on his remaining vehicles with the intention of applying the excess coverage of the first policy to the low limit vehicles, thereby avoiding the payment of the higher premiums on the low limit vehicles.
The Court determined that prohibiting an owner from obtaining higher limits without paying the corresponding premiums was a permitted exclusion under both the GEICO policy and Maryland law. As a result, the Court of Appeals reversed the judgment of the Circuit Court and remanded the case back to the trial court. Government Employees Insurance Company v. Comer
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Landlord Liability for Tort of his Tenant
Recently, the Court of Special Appeals held a landlord liable for injuries to a third party caused by a tenant's dog. The case involved injuries to a child that occurred as a result of a tenant's pit bull escaping its pen that was located on the leased premises. The parents brought suit against the tenant and the landlord for negligence and strict liability.
The Court of Special Appeals was faced with deciding whether the evidence presented at trial satisfied the plaintiff's burden to show (i) that the landlord had knowledge of a vicious animal on the premises and (ii) had some means of exercising control over the animal. The court noted that the lease agreement acknowledged the presence of the dog on the leased premises. As to viciousness, the court found no direct evidence that the landlord had observed the dog's aggressive tendencies. However, the court determined that adequate circumstantial evidence existed to satisfy the knowledge element. That evidence existed in the form of the renewal documentation for the lease reflecting that the landlord had removed the prohibition about keeping a vicious pet and added language about insulating the landlord from liability relating to the pet. Additionally, the court was persuaded by the neighbor's testimony that anybody who walked near the dog pen would experience aggression from the dog. As a result, the court noted that a jury could have rationally inferred that the landlord also observed vicious behavior when she visited. Solesky v. Tracey
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Proposed Legislation - Statutory Contributory Negligence
An attempt to codify contributory negligence in Maryland failed to move past the House. House Bill 1129, proposing the Maryland Contributory Negligence Act, was introduced on February 11, 2011 but failed to receive a sufficient amount of votes to become law. If it had passed, it would have effectively eliminated the possibility for the Court of Appeals to adopt comparative negligence by a rule change, an action which the Court of Appeals has alluded to having an interest in doing.
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| Recent Developments - Virginia |
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Medical Malpractice - Continuous Treatment Exception - Statute of Limitations
For the first time, the Virginia Supreme Court recently applied the continuous treatment exception to treatment by radiologists. In a medical malpractice case alleging that radiologists negligently read and interpreted various scans, a statute of limitations plea became the central issue. The claimant had received a variety of MRI testing from the defendant radiologists six times over a period of time spanning almost three years. The claimant filed her medical malpractice action almost five years after the date the negligence occurred but within two years of the date she was last seen by the radiologists. Citing Virginia's two-year statute of limitations and arguing that the claimant's treatment was episodic rather than continuing in nature, the defendants filed a plea of limitations, which was sustained by the Circuit Court.
On appeal, the Supreme Court of Virginia reversed the lower court's ruling. It was persuaded by the fact that the treatment of the plaintiff over the two years involved the same or related ailments. As a result, the Court found a continuous and substantially uninterrupted course of examination and treatment existed between the claimant and the radiologists. As a result, the Court found that the continuous treatment exception to the statute of limitations should have been applied by the Circuit Court. Accordingly, the Court reversed the judgment dismissing the case on statute of limitations grounds and remanded the case to the Circuit Court for further proceedings. Chalifoux v. Radiology Associates
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Governor McDonnell - Proposed Legislation - Medical Malpractice Cap
Governor Bob McDonnell stifled attempts to increase the maximum damage award in a medical malpractice lawsuit. Supporters of the bill sought to raise the cap from a maximum recovery of $2 million to $3 million through a series of step increases. The cap was last raised in 2008. Governor McDonnell cited a number of reasons for his decision, including his belief that an increase in the cap would not meaningfully protect against health care cost increases. Given the support for the bill in the Virginia General Assembly, many believe that an attempt to override the veto will be successful. Legislative News
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Indemnification - Automobile Insurance
The Supreme Court of Virginia was recently asked to determine whether a self-insured rental car company may seek indemnification from its renters for damages caused by the renters' negligence once the rental car company has satisfied its obligation to afford primary bodily injury and property damage coverage to third party drivers as required by law. The case involved a man, Baasanjav, who rented a vehicle from Enterprise Leasing Company. The lease agreement Baasanjav signed included a supplemental liability protection (SLP) option, which Baasanjav declined, and an indemnification provision whereby Enterprise could seek indemnification against Baasanjav or his insurance carrier for damages caused by him.
Baasanjav subsequently was involved in an accident while driving the Enterprise vehicle for which he was solely at fault. Enterprise paid for the damages of the third party driver and then exercised its indemnification rights against Baasanjav. Baasanjav's insurance carrier, Farmers, filed a complaint for declaratory relief asking the circuit court to determine whether Enterprise could recover against Baasanjav, Enterprise or both under the terms of the Farmers policy and the Enterprise lease agreement. The circuit court determined that Virginia law did not prevent Enterprise from seeking indemnification from Baasanjav and that the Farmers policy resulted in Farmers' liability for the amount paid to the other driver.
On appeal, the Supreme Court of Virginia affirmed the lower court's ruling. Specifically, it explained that the holding in USAA v. Hertz, 265 Va. 450, 578 S.E.2d 775 (2003), requires a rental car company to carry primary liability insurance coverage; however, it does not bar a rental car company from seeking indemnification from its renters for damages caused by them. Additionally, the Supreme Court rejected Farmers' contention that the decision would violate the anti-subrogration rule, explaining that the characteristics of a self-insurance company make it impossible for the aforementioned rule to apply. Finally, the Court reviewed the Farmers' policy language and determined that Farmers was required to reimburse Enterprise for amounts paid on behalf of Baasanjav. Farmers Insurance Exchange v. Enterprise Leasing Co.
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Recent Developments -
District of Columbia
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Settlements Involving Joint Tortfeasors
In 2007, the District of Columbia Court of Appeals held that a settling defendant, as part of the settlement agreement, could lawfully assign to a plaintiff its claim for equitable indemnification against the non-settling defendant. In Caglioti v. District Hospital Partners, LP, 933 A.2d 800 (D.C. 2007), the Court of Appeals focused on the Court's preference for free assignability of claims and the absence of express statutory prohibition against the assignment of such a claim.
Recently, the District of Columbia Court of Appeals extended its reasoning in Caglioti and held that a settling defendant, as part of a settlement agreement, can lawfully assign to a plaintiff its claim for contribution against the non-settling defendant. The facts of the case involved a plaintiff's medical malpractice claims against an anesthesiologist and a surgeon as a result of injuries arising from the negligent administration of medication. The plaintiff and the anesthesiologist entered into a settlement agreement whereby the plaintiff dropped all claims against both defendants, but preserved the anesthesiologist's contribution claim against the surgeon. In exchange, the anesthesiologist paid the plaintiff two million dollars and assigned his full contribution claim against the surgeon to the plaintiff. The Court of Appeals was faced with deciding a number of interesting issues.
The Court pointed out that the determination that the contribution claim was preserved required it to consider whether the parties' intended preservation of the claim was lawful, whether the preserved contribution claim was legally assignable to the plaintiff. To arrive at its determination, the Court considered its decision in Caglioti that permitted the preservation and assignment of an indemnity claim. Ultimately, the Court reasoned that the effect of an indemnification claim and a contribution claim is the same in that they both intend to allocate responsibility equitably among parties responsible for a plaintiff's injuries. As a result, the Court found that a plaintiff's complete release of two joint tortfeasors as consideration for (i) payment of money damages from a settling defendant (ii) a reservation of the settling defendant's claim for contribution and (iii) the assignment of that contribution claim back to the plaintiff, was completely valid and legal.
The final section of the Court's opinion touched on the non-settling defendant's argument that the plaintiff failed to sufficiently establish that the settling defendant was a joint tortfeasor. The Court of Appeals acknowledged that it often states that the liability of the settling tortfeasor must be "judicially established" and explained:The present case, therefore, is the first to address the question whether something less than a judicial ruling or a global stipulation can serve to establish a settling defendant's joint liability with the non-settling defendant for purposes of determining the settler's right of contribution against a joint tortfeasor.
Answering its question in the affirmative, the Court developed a two-part test: (1) whether the non-settling defendant was liable to the plaintiff in negligence, and (2) whether the settlement between the plaintiff and the settling defendant was reasonable.
The Court explained that the burden of proof lies on the settling defendant to establish his claim for contribution by proving himself to be a joint tortfeasor and proving that the settlement was reasonable. Since the non-settling defendant was not disputing the settling defendant's liability, the Court considered that element to be satisfied. With regard to the reasonableness of the settlement, the Court laid out its thought process in determining that the patient-anesthesiologist settlement was reasonable. It acknowledged that since the plaintiff's pre-trial ad damnum was three million, a payment by the anesthesiologist of two million dollars was a five hundred thousand dollar premium on what he may have paid had the jury reached a verdict of three million dollars. The Court pointed out, however, that the reasonableness standard is to be applied to the impact on the non-settling defendant. In this case, the fact that the plaintiff obtained a windfall does not change the determination since the windfall was not at the expense of the non-settling defendant.
In finding the settling defendant to have established both elements, the Court of Appeals affirmed the trial court's ruling that the contribution claim was valid and the settlement agreement legal. Estate of Ronald D. Kurstin, M.D. v. John B. Lordan, M.D.
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Negligence - Statutory Interpretation
The District of Columbia Court of Appeals recently decided an issue of first impression that had the potential to directly impact vehicle rental businesses in the District. The case involved a pedestrian's claims for damages as a result of being hit by the driver, David Panchi, who was driving a rented U-Haul truck. In addition to filing a claim against Panchi, the pedestrian filed a negligence per se claim against U-Haul when it was discovered that Panchi's Virginia driver's license, although facially valid, was actually suspended at the time of the incident. The negligence per se claim rested on the pedestrian's argument that U-Haul had a duty to investigate the validity of Panchi's license and that 18 DCMR § 1100.12 imposes strict liability on U-Haul.
18 DCMR § 1100.12 is a District of Columbia statute that provides:
No person shall authorize or knowingly permit a motor vehicle owned by him or her or under his or her control to be driven by any person who is not authorized under the provisions of this title, or who is not licensed for the type or class of vehicles to be driven or in violation of any of the provisions of this chapter.
The pedestrian argued that "authorize" and "knowingly permit" should be interpreted as two different scenarios. Essentially, the pedestrian's argument was that authorizing an unlicensed driver to use a vehicle should result in strict liability under the statute versus "knowingly permitting" another to use the vehicle indicates a person permitting another to use the vehicle with the knowledge that the driver was unlicensed. The Court of Appeals rejected the pedestrian's interpretation and held that proof of the culpable mental state of knowingly is a requisite element regardless of whether a plaintiff chooses to focus on the authorizatio nor permission aspect of the statute. Young v. U-Haul
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Torts - Negligent Infliction of Emotional Distress
The District of Columbia Court of Appeals granted a petition en banc to decide whether the "zone of physical danger test" should be applied to preclude a person's claim that his doctor's negligent mis-diagnosis caused him serious emotional injury. The case involved a man who was told that he was positive for HIV and then informed five years later that he was actually not afflicted. He alleged that he suffered repercussions in his employment and personal life during the five years he believed he had the disease.
The Court first reiterated the zone of physical danger test as set out in Williams v. Baker, 572 A.2d 1062 (D.C. 1990) (en banc), whereby a person can recover for mental distress if the defendant's actions caused the plaintiff to be "in danger of physical injury" and if, as a result, the plaintiff "feared for his own safety." After reviewing the progression of case law to arrive at the "zone of physical danger test" and the reasoning behind the test, the Court ultimately recognized a need for adopting a rule that supplements the test. The Court emphasized the limited nature of the supplement and held that:
[A] duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiff's emotional well-being or the plaintiff's emotional well-being is necessarily implicated by the nature of the defendant's undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant's negligence.
The Court reiterated that the new supplemental rule contains a self-limiting principle based on the nature of the defendant's relationship with, or undertaking to, the plaintiff. It explained that "a relationship or undertaking must 'implicate' the plaintiff's emotional well-being" and referenced psychiatrists/therapists and some doctors as examples of such relationships. The Court made very clear its desire to refrain from enumerating a list of relationships in order to allow the bench and the bar to carve out additional examples. Hedgepeth v. Whitman Walker Clinic
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17251 Melford Boulevard
Suite 200
Bowie, Maryland 20715
(301) 352-4950
Fax - (301) 352-8691
3930 Walnut Street
Suite 250
Fairfax, Virginia 22030
(703) 255-6667
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740 Stagwell Road
Mail: P.O. Box 338
Queenstown, Maryland 21658
(410) 827-5013
Fax - (410) 827-4323
www.decarodoran.com
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2012 Defense Litigation Seminar
April 19, 2012
Martin's Crosswinds
Greenbelt, Maryland
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About The Firm
DeCaro, Doran, Siciliano, Gallagher & DeBlasis, LLP is proud to announce that their Partner, Christopher R. Dunn, has been elected as a Fellow of the American College of Trial Lawyers. He was inducted a few weeks ago at the ACTL annual meeting in San Antonio, Texas.
Founded in 1950, the College is comprised of the best of the trial bar from the United States and Canada. Fellowship is extended by invitation only, and only after careful investigation and consideration, to those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility, and collegiality, along with recognized excellence as a trial attorney. Membership in the ACTL is conferred on less than one percent of all trial lawyers in the nation. As explained by ACTL:
The American College of Trial Lawyers is the only professional organization in the world to count among its members every member of the Supreme Court of the United States and every member of the Supreme Court of Canada. The College is honored to be able to make this statement, and it can do so only because every Justice on the Supreme Court of the United States and every member of the Supreme Court of Canada has elected to accept Honorary Fellowship in the College and to address the College at one of its national meetings. It is a tribute to the Fellows, the mission, and the work of the College that this statement can be made.
Membership is limited to only those trial lawyers who are unquestionably and eminently qualified, in addition to being regarded as the best in their state/province. Qualifications must include high ethical and moral standards, as well as excellent character. Consideration for Fellowship also requires lawyers must be actively engaged in trial work as their principal activity for a minimum of 15 years.
In the 61 years of existence of the College, Chris is just the 10th member elected from Prince George's County and the 151st from the entire state of Maryland. His election to the ACTL is a tremendous achievement in an already accomplished legal career that spans twenty-three years.
Chris has been practicing law for over twenty-two years, and has been with DeCaro, Doran since it opened its doors in 1993. He became a partner in 1994, and has managed the insurance defense litigation practice group for the past 15 years. A significant portion of Mr. Dunn's practice is focused in complex civil litigation including personal injury and premises liability litigation. He also has an extensive appellate practice, and has successfully represented a number of clients before the Court of Special Appeals, and Court of Appeals. Chris has been named as a "Super Lawyer" in Maryland and the District of Columbia for the past four consecutive years.
Chris is licensed to practice in both state and federal courts in Maryland and the District of Columbia. He is an active member of the Maryland State Bar and Prince George's County Bar, and is also associated with the District of Columbia Bar, Federal Trial Bar, and Anne Arundel County Bar Association. He has served on and has chaired a number of committees in these organizations, and from 2000-2001 served as President of the Prince George's County Bar Association, where he earned the reputation as an innovative leader. Additionally, Chris has served on the Judicial Nominating Committee from 1994 through 2007 and two terms on the Maryland State Bar Association Board of Directors. He is regularly asked by clients and colleagues to serve on panels, lecture, and present seminars in the areas of general liability claims, litigation and claims management, and risk management.
As a Prince George's County native, Chris has a deep-rooted interest in serving his community. He was responsible for the creation, and served on the Board of Directors, of the Citizenship Law-Related Education Program for the Schools of Maryland, or Law Links. The Law Links program teams law firms and minority and low income students by inviting students to work as paid interns in law firms and government agencies for an eight week period each summer. Chris was also instrumental in establishing the firm's "adoption" of a local elementary school, to which the attorneys and staff provide food and funds to deserving families during the holidays. He has also been active in the Thomas Moore Society.
Chris graduated from Villanova University with honors in 1984, with a B.A. in History and Political Science, and earned his J.D. from the University of Baltimore School of Law in 1987. He served a judicial clerkship with the Honorable Albert T. Blackwell, Jr., Court of Appeals of Maryland, before entering private practice in 1988 with our firm's predecessor O'Malley & Miles.
We congratulate Chris Dunn on this prestigious accomplishment and are proud to have him as a Partner at DeCaro, Doran.
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