From the Listserv Edited by Louise A. Lock


Louise A. Lock, of the firm of Barry L. Steelman, P.A., received her law degree from the University of Baltimore School of Law. She is a member of the MTLA’s Trial Reporter and Legislative Committees. Ms. Lock practices in the areas of plaintiff’s medical malpractice, product liability and personal injury.


As those who are already members of


the Listserv are aware, there has been a phe- nomenal effort, especially over this last month, on the part of our legislative mem- bers attending hearings and negotiating in Annapolis, of keeping the members posted on an often daily basis, via the Listserv, of the most up to date information about those bills important to all members. If you are not already part of this free member benefit, just send an email to mtla@erols.com and request to be added to “the list.” It has also been a busy time for the


Listserv repartee. A sampling of some of the topics discussed :


MEDICAL MALPRACTICE:


From: Andrew G. Slutkin <ags@Plaintiff-Lawyer.com>


The Defendant in one of my cases wants


to prove that my client failed to follow-up with a certain alleged recommendation (to have a chest x-ray), by introducing evidence at trial that my client failed to follow sev- eral other recommendations that the Defendant allegedly made. It seems to me that the defense is trying to introduce “char- acter evidence,” and that it has no bearing on whether my client failed to follow the recommendation to have the chest x-ray. Does anyone have any thoughts or case law? Thanks.


From: Robert R. Michael <rrmich@aol.com>


Andy:


What about Rule 5-404 (b) among oth- ers, which prohibits “evidence of other ... wrongs or acts ... to prove character of a person to show action in conformity there- with.” Under the case law, your post describes classic prior “bad acts” showing a pattern of negligence by the plaintiff. These are no more admissible than showing that the defendant automobile driver has had three prior accidents for which he or she was at fault as evidence of negligence on the date the plaintiff was injured. This con- duct is clearly not the type contemplated by Rule 5-406. And it likewise should be excluded as prejudicial under Rule 5-403. While I am sure you don’t need me to


Spring 2000


suggest this, a motion in limine should be filed ASAP.


From: Mark A. Binstock <mbinstock@paleyrothman.com


Is it character evidence or is the defen-


dant trying to prove a pattern of conduct on the part of your client. i.e.. He never follows his doctors advise or instructions. I believe that the use of such evidence is generally very limited for the same reason that the prosecution is not allowed to use a defendant’s prior convictions to prove that he committed another crime. I forget the evidentiary cite but it should be in the Maryland Rules of Evidence. You should have a good chance of keeping it out espe- cially if it is unrelated to the treatment in question.


From: Mark A. Binstock <mbinstock@paleyrothman.com


I would have to agree with Bob Michael’s analysis that he sent yesterday It has been my experience that judges are hesitant, if not loathe, to permit a party to prove a part of his or her case by showing that some- thing similar occurred at another time. I believe that Bob’s cite to the Maryland Rules of Evidence is [correct] and the analogous federal Rule of Evidence supports that such prior bad acts are not admissible. I also do not believe that the conduct rises to the level of a “habit” that might make it admissible. There should be substantial case law inter- preting the Federal rules of evidence since they have been around longer and there may even be law interpreting the Maryland Rules although I have not researched the issue for some time.


WORKERS’ COMPENSATION:


EPinder882@aol.com writes: I just received a request by Kemper to


have my client attend a Functional Capac- ity Evaluation in a WCC case; which is set up by a company which will come to her house or my office, but they digitally video the exam. Has anyone else run into this? Do I have any obligation to allow a video- tape of my client? Seems to me its nothing but bad news -FCE will be no doubt used by evaluating orthopod to diminish inju- ries.


From: Bruce M. Bender <bmb@vawlaw.com>


My reaction is the same as yours; I think they will try to use this against your client by showing video to IME doctor who will then say client is malingering. Some carri- ers on occasion do this with surveillance video and I see no difference. I wouldn’t agree to the video.


From Mitchell Greenberg:


Ed, they would use it for that anyway. Who is the evaluator? If it’s someone fair (and you have a good client), you probably don’t have much to lose. However, I defi- nitely don’t believe Kemper has the right to videotape any proceeding without your client’s consent. You might be able to use the consent as a bargaining chip. For in- stance, I let you tape this, you agree to only use an IME doctor 1) I consent to or 2) permits me to videotape the IME. Tit for tat.


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