IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND
MARY McGINNIS - Plaintiff v RELIABLE ROOFING, INC - Defendant, |
* * * * * | CASE
NO. 24-C-01-000894 |
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PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL
Plaintiff, Mary McGinnis, by and through
her attorneys, Laura G. Zois and Ronald V. Miller, Jr. and responds
to the Defendants’ Motion for New Trial and respectfully
requests that the Court deny the Defendants’ motion in its
entirety.
Trial judges are given the broadest
range of discretion when asked to consider whether “justice
has been done” in determining whether to grant a new trial.
Buck v. Cam’s Broadloom Rugs, Inc. 328 Md. 51,
at 57 (1992); See also Owens-Corning Fiberglass Corp. v. Baltimore
City, 108 Md. App. 1 (1996). The decision on a motion for
new trial is reviewed for abuse of discretion, and an appellate
court will rarely disturb the ruling. Buck, 328 Md. at
57. The Court of Appeals
has stated that “[w]e know of no case where this court has
ever disturbed the exercise of the lower court’s discretion
in denying a motion for trial because of inadequacy or excessiveness
of damages. “ Kirkpatrick v. Zimmerman, 275 Md.
215, 218 (1970).
I. THE DEFENDANTS’ ARE NOT ENTITLED TO A NEW TRIAL BASED ON THE COURT’S RULING TO PRECLUDE EVIDENCE REGARDING THE POSTURE OF THE PLAINTIFF’S SUBSEQUENT ACCIDENT
A. BACKGROUND FACTS OF CASE
The Plaintiff, Mary McGinnis suffered
injuries in an auto accident on February 20, 1998 when she was
rear-ended by the Defendant, Gregory Volker, while acting within
the scope of his employment for Defendant, Reliable Roofing, Inc.
As a result of the auto accident, the Plaintiff sustained injuries,
including a herniated disc in her neck that requires surgical
intervention. The Plaintiff was also involved in a subsequent
accident on August 28, 1998 and sustained an injury to her lower
back. However, the Defendant contends at trial that the Plaintiff’s
herniated disc in her neck and need for future treatment was caused
by the second accident.
The Plaintiff’s previous
attorney, E. Thomas Maxwell, Jr., filed a complaint on behalf
of the Plaintiff for her second accident in Anne Arundel County Circuit Court. However, after the undersigned attorney became
involved in both of these cases, it was painfully obvious that
the lawsuit pending in the Circuit Court for Anne Arundel County
for the second accident, should have been filed in District Court.
In the second accident, the Plaintiff’s medical specials
were less than $1,500 for treatment regarding a minor lower back
strain. She did not claim any permanent impairment as a result
of the second accident, she was only off work for one week, and
she had very little treatment and completely recovered within
four months.
By the time the undersigned attorney
became involved in the case, the statute of limitations had passed.
After discussions with the Plaintiff regarding the status and
posture of the lawsuit regarding the second accident, the decision
was made to dismiss the second lawsuit. In an abundance of caution,
the undersigned attorney obtained an agreement from the attorney
defending the second lawsuit to waive the statute of limitations
defense for one year from the date of the dismissal.1
The discussions between the Plaintiff and her counsel regarding
the decisions to dismiss the lawsuit and retain the right to re-file
her suit involved attorney- client privileged communications including
the merits of the second case.
B. THE COURT’S PRECLUSION OF THE ADMISSIBILITY OF THE LAWSUIT
REGARDING THE SECOND ACCIDENT
Prior to the beginning of the
trial, the Court heard motions in limine regarding the posture
of the second lawsuit. It is agreed by all parties that the suit
was dismissed and the right to re-file was preserved for one year
from the date of dismissal. The Defendants sought to introduce
evidence regarding the fact that the Plaintiff filed a lawsuit
for her second accident and had the right to re-file the lawsuit.
The Plaintiff argued that the posture of the lawsuit regarding
the second was irrelevant, however, the facts of the accident,
the injuries sustained, and the damages incurred were fair game.
Plaintiff’s counsel also argued that if the jury was told
that the Plaintiff reserved the right to re-file her lawsuit,
counsel would have to testify to matters that were protected by
the attorney-client privilege and the undersigned would be implicated
as a witness. Furthermore, the jury would not be able to fully
comprehend statute of limitations and dismissals, nor should they
have to understand to decide the merits of this case.
The Court properly ruled that the
posture of the lawsuit for the second accident was irrelevant
to the issues for the jury to decide. The Court further opined
that any probative value would be outweighed by the prejudicial
effect to the Plaintiff.
Court gave free rein to the Defense
attorney to cross-examine the Plaintiff and her doctors regarding
the facts, injuries, damages and lost wages relative to the second
accident.
The Defendants’ attorney
vigorously cross-examined the Plaintiff about the facts of the
second accident, the property damage from the second accident,
her medical treatment, her injuries and her lost wages following
the second accident. The defense also vigorously cross-examined
the Plaintiff’s expert witnesses with the same extensive
details regarding her second accident.
C. THE WAS NO PREJUDICE TO THE DEFENSE BY THEIR INABILITY TO CROSS-EXAMINE THE PLAINTIFF AND HER EXPERTS WITH THE COMPLAINT FILED IN THE SECOND ACCIDENT
After reviewing the Defendant’s
motion for new trial, it is apparent that the only piece of evidence
they were precluded from introducing or using for impeachment
purposes was the Plaintiffs Complaint that was filed in her second
accident which states “serious injuries about her head,
body and limbs.” It is noteworthy to mention that the language
used does not state she made a claim for injuries to her “neck
,” nor does it state “back” which was the injury
she sustained. The language was simply boilerplate language.2
During discovery, the Defendants
went on a wild goose chase to find some shred of evidence that
the Plaintiff claimed a neck injury in the second accident. The
best they could come up with identical dismissed complaints that
claim “serious injuries about her head, body and limbs.”
The Defense’s protracted argument that this pleading is
some how an admission against interest to support their contention
she injured her neck in the second accident is a stretch at best.
The Defendants subpoenaed the claim
file from the insurance company involved in the second accident.
(See attached hereto Exhibit “B” Defendant’s
deposition duces tecum). The Defendants also attempted to subpoena
the attorney defending the second accident, John Stebenne to the
trial of this matter. (See attached hereto as Exhibit “C”,
correspondence from John Stebenne, dated November 22, 2002).
As Mr. Stebenne clearly pointed out to Defense Counsel:
As I told you in our phone call today, if you were to ask me to say that on direct examination, plaintiff attorney would have the full right to ask me on cross-examination why I agreed to the 1-year extension. I would truthfully respond that, based on my understanding of the medical records and facts of the 2 accidents, that I had nothing to lose since all of the plaintiff’s injuries were caused by the accident involving your client.
First, the pleading filed was
not a “statement” as defined by the Maryland Rule
5-803(a). It was not a statement made by her, nor was it a document
adopted by her or signed by her. Furthermore, it was a pleading
that she dismissed and arguably disavowed. Not
to mention the fact that the document does not even state that
she claimed an injury to her neck .
The Defendants did not suffer any
prejudice because they were unable to cross-examine the Plaintiff
with these documents. The best piece of evidence the defense had
that the Plaintiff claimed an injury in her neck as a result of
the second accident was the hospital record from North Arundel
Hospital. The defense spent an inordinate amount of time in exhausting
detail with every witness about this medical report.
Furthermore, the defense acknowledges
that they jury knew the Plaintiff hired an attorney after both
accidents. The defense also acknowledges that the jury probably
knew that the Plaintiff was pursuing claims relating to the second
accident even though it was not introduced into evidence. The
Defense claims that since the jury asked a question about when
a lawyer was hired it must have been important to them, and thus
should be admissible. However, the Court, not the jury, determines
what is important and what is admissible.
The defense also expresses concern
about a potential fraud on the Court should Ms. Raleigh intend
to pursue a claim for permanent injuries for her second accident.
After testifying consistently at trial, in depositions, and by
way of interrogatories, the Plaintiff has claimed the first accident
injured her neck. Furthermore, all of her treating doctors are
of the opinion she injured her neck in the first accident. What
the Defendants repeatedly fail to recognize is that the Plaintiff
would be dramatically impeaches since on every given occasion
she has testified consistently that she did not
injure her neck in the second accident.
D. APPLICABLE LAW GOVERNING ADMISSIBILITY OF THE SECOND LAWSUIT
Maryland Rule 5-402 states that
relevant evidence is generally admissible and irrelevant evidence
inadmissible. In this case, the issues before this court were
liability and damages for an automobile accident which occurred
on February 20, 1998. The posture of a lawsuit, or even the fact
that the Plaintiff filed another lawsuit or made a claim is not
relevant to this case. Judge Smith was proper in her ruling that
the lawsuit and the posture of the lawsuit for the Plaintiff’s
second accident was irrelevant and inadmissable.
However, assuming arguendo, that
the lawsuit was relevant, Maryland Rule 5-403 states that even
when evidence may be relevant, it may also be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence. In the present case, the admissibility
of the second lawsuit, would at the very least would confuse the
issues and waste time. The evidence may also lead to undue prejudice
upon the Plaintiff for filing another lawsuit.
Furthermore, in order for the jury
to fully understand the reasons behind the Plaintiff’s decision
to dismiss her lawsuit and her attorney’s intention to maintain
the right to re-file within one year of the dismissal, would require
an explanation from the Plaintiff which would include conversations
with her attorney, and those conversations are protected by the
attorney-client privilege. The explanation would also implicate
the undersigned as a witness on why the Attorney did not dismiss
with prejudice and reserved the right to re-file the suit within
one year.
The Defense directs this Court’s
attention to the case of Martin v. State, 364 Md. 692
(2001). This case is clearly distinguishable from the facts of
this case. Martin, was a criminal case involving a police
officer who was accused of taking money from a private citizen.
The private citizen was testifying at the trial as the State’s
witness and had also consulted with a lawyer about a civil case
arising out of the same incident. The Defense attorney was precluded
from asking the witness about his lawsuit against the Defendant.
The Court held that the Defendant in a criminal trial has his
6th Amendment Right to confront and cross-examine witnesses.
The Court held that the fact that
the State’s witness may have been motivated by money to
testify instead of his “altruistic interest generated solely
by motives in the public interest” was legitimate cross-examination.
In this case underlying case involved a Defendant’s right
to confrontation and a civil suit arising out of the
same set of circumstances. (emphasis added).
The other case cited by the was
Morris v. Weddington, 320 Md 674 (1990). The facts of
that case are also clearly distinguishable and not close to being
on point in this case. Morris, involved the personal
injuries of a minor child. During the course of the trial a witness
blurted out that the Defendant was uninsured. Thereafter the jury
informed the Court that the lack of insurance would have bearing
on the decision in damage. After the Court informed the jury that
they should not consider such things, the jury propounded three
specific questions all dealing with insurance coverage. Ultimately
the jury returned a very low verdict in favor of the Plaintiff.
The Court of Appeals determined the jury was contaminated by the
lack of insurance comment and a mistrial was appropriate.
The defense has failed to provide
this Court with any authority that the posture of the lawsuit
for the second accident had any bearing or relevance in the issues
before the jury during the course of the trial and the exclusion
of that information warrants a new trial.
II. THE JUDGMENT WAS NOT EXCESSIVE AND THE DEFENDANTS ARE NOT
ENTITLED TO A NEW TRIAL ON THE ISSUE OF DAMAGES
The defense asserts that the jury’s
award for future medical treatment of $20,000.00 and past lost
wages of $14,000.00 was excessive and not based on evidence presented
at trial. This is incorrect. As for the future medical expenses,
the Plaintiff, in discovery, claimed that the Plaintiff’s
future medical expenses for the surgery would be $15,000.00. Additionally,
Dr. Smith opined that she had a permanent injury to her neck,
even if she had the surgery. The Plaintiff’s life expectancy
was for another 32 years. Dr. Smith also testified that the Plaintiff
would need therapy after the surgery even though he did not quantify
the cost.
A. AWARD FOR FUTURE MEDICAL TREATMENT
The jury could have awarded the
Plaintiff the additional $5,000.00 in anticipation of future medical
treatment over the course of her life for the next 32 years, which
would average $156.25 a year for the rest of her life for medical
treatment. The jury may also have used Dr. Brager’s bills
for physical therapy to determine an appropriate amount for her
to have post surgical physical therapy. Or, the jury could have,
based on their own personal experiences, could have considered
Dr. Smith’s approximate cost to be conservative.3
B. PAST LOST WAGES
The testimony solicited from the
Plaintiff’s attorneys regarding past lost wages was as follows:
(1) the Plaintiff earned approximately $450.00 a week on average
at the time of the accident; (2) the Plaintiff had disability
slip through April 16, 1998; (3) as of April 1, 1998 Dr. Gordon
advised her she could try to go back to work; (4) the Plaintiff
testified she was never able to go back to stying hair full-time;
(5) in closing the Plaintiff asked for 7 weeks of past wages in
the amount of $3,150.00.
On cross-examination of the Plaintiff,
the Defendants’ attorney brought out that the Plaintiff
earned, 10,187.00 in 2001. On re-direct after opening the door,
Plaintiff testified to her income tax’s from 1994 through
2000 as follows:
1994 - 11,945.06
1995 - 12,297.82
1996- 10,814.07
1997- 10,794.88
1998- 5,758.37
1999- 7,885.29
2000- 4,289.00
This testimony clearly demonstrated
a loss of past earnings. Using her income level pattern before
the accident as a bench mark, it is clear she lost past wages.
The jury, more likely than not, used her past income tax returns
to make a past lost wage award. It is interesting to note that
the Defendant’s attorney opened the door for this testimony.
It appears as though the jury came to the $14,000 amount by using
the Plaintiff’s earned income in 1997 of $10,794.88 as a
base line. Accordingly in 1998 she lost $-5,035.63, in 1999 she
lost $-2,909.49, and in 2000 she lost $-6,505.88. By adding up
the losses from 1998 to 2000, you get to $14,451.00.
The Plaintiff also testified that
she lost one week from work following the second accident and
she earned $450.00 a week. It appears as thought the Jury took
this into consideration and credited the Defendants for the week
she lost from the second accident. The evidence clearly demonstrates
how the jury arrived at the past lost wages almost to the penny.
C. STANDARD OF REVIEW FOR THE COURT
The standard for the trial judge
in determining whether a new trial should be granted on the grounds
of an excessive verdict, is whether or not the verdict is “grossly
excessive,” or “shocking to the conscience of the
court,” or “outrageously excessive,” or even
simply “excessive.” See Conklin v. Schillinger,
255 Md. 257 at 69 (1969). Appellate Courts will review the sufficiency
of evidence in the light most favorable to the prevailing party
in cases involving excessive or insufficient jury awards. Accord
Safeway Stores, Inc. v. Barrack, 210 Md. 168 (1956); State
Roads Com. v. Wood, 207 Md. 369 (1955); Baltimore v.
Smith & Schwartz Brick Co., 80 Md. 458 (1895).
“A jury’s verdict should
not be causally overturned.” Buck, 328 Md. 51 ,
at 60 quoting Boscia v. Massaro, 365 Pa.Super. 271, 529
A.2d 504, 508 (1987). As long as there are basic facts supporting
the jury’s verdict, it should not be disturbed. Id at 328
Md. 51, at 60-61. (1992).
D. THE APPROPRIATE RELIEF WOULD BE REMITTITUR NOT A NEW TRIAL
Assuming arguendo, that the Court
found the awards for past lost wages and future medical expenses
to be grossly excessive, the appropriate relief would be to enter
a remittitur on the past lost wages and future medical expenses,
not to award the Defendant a second shot at the trial in its entirety
when the only portions of the verdict they contend are excessive
can be easily remitted with little speculation or guess work.
The Defendant challenge the base amount of $15,000 for future
medical expenses, nor does he challenge to past lost wages in
the amount of 2,791.04.4
If the Court was persuaded that the verdict
is excessive and is not based on any evidence presented at trial
, then the appropriate remedy would be to enter a remittitur in
the amount of $5,000 for future medical expenses and $10,850.00
for a total reduction in the verdict by $15,850.00.
CONCLUSION
The trial court was correct and
did not abuse its discretion and commit reversible error when
it ruled that the posture the Plaintiff’s subsequent lawsuit
filed in a subsequent accident was not relevant. Furthermore,
the trial court was correct in its ruling that if arguably relevant,
its admissibility would cause confusion to the jury, on balance
would unfairly prejudice the Plaintiff, and would require the
Plaintiff to reveal conversations protected by the attorney-client
privilege. The inability of the Defendants to cross-examine the
Plaintiff and her experts with the Complaints filed in the subsequent
accident did not result in any prejudice to the Defendants. Additionally,
the jury’s awards for past lost wages and future medical
expenses are supported by the evidence and should stand. Should
the Court find the awards for past lost wages and future medical
expenses not supported by the evidence, the remedy to the Defendants
would be a remittitur.
WHEREFORE, the Plaintiff, Mary
McGinnis, respectfully requests that the Defendants’ Motion
for New Trial be denied in its entirety.
Respectfully submitted,
MILLER & ZOIS, LLC
Ronald V. Miller, Jr.
Empire Towers, Suite 1001
7310 Ritchie Highway
Glen Burnie, Maryland 21061
(410)553-6000
(410)760-8922 (Fax)
Attorney for the Plaintiff
1 The dismissal regarding the second lawsuit was filed on August 22, 2002. As of June 2003, the Plaintiff’s right to re-file her lawsuit regarding the second accident will terminate.
2 The Defendants’, during the course of the trial, never approached the Court with the Complaints from the second accident at any time nor did they ever seek to introduce the Complaints from the second accident.
3 The Forelady’ was elected by the jury as their Foreperson. The Forelady’s mother had back surgery as a result of herniated discs. Juror number 6 also claimed to have herniated discs in his neck.
4
The Defendant did not place any objections on the record
during any part of the testimony or argument regarding the claim
of $3,150 for past lost wages.
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