From the Listserv Edited by Louise A. Lock


Louise A. Lock is a solo practitioner who received her law degree from the University of Baltimore School of Law. Her practice concen- trates in the areas of medical malpractice, drug products liability and personal injury.


Following are a few excerpts from MTLA’s listserv, a networking service


SUBJECT: MD CODE SEC 11- 109(C) ANNUITY PAYMENT


From: “Daniel E. Schultz” <schultzd@sprintmail.com>


Colleagues:


I would appreciate hearing from any- one who has had any experience with defense attempting to invoke Md. Code Section 11-109(c) to have the court con- vert lump sum damage award for future needs/lost earnings to annuity payments, whether successful or rejected, or anyone who knows of any court opinions discuss- ing the inappropriateness, unfairness or impracticability of doing so, whether re- ported or not. Defendants are claiming they are going to make this request and present structured settlement broker ex-


pert at trial to testify regarding the pre- mium costs, etc., which are significantly less than present day value because of the high rated age for our severely brain in- jured client (which is true) and therefore claiming the case has significantly reduced settlement value. We are interested in utilizing a structured settlement to achieve the level of care and needs we are project- ing and be able to settle, but now they are claiming that the annuity cost is the start- ing point re their damage exposure and that settlement means compromising off that figure (instead of settlement value based on what a present day damage award would be at trial). Would like to be ready for the pitch at trial but also to be able to give our settlement judge ex- amples of cases in which the court has rejected the defendant’s request, any re- ported or unreported opinions in which problems with using this approach are discussed, and give him a list of reasons


why this tactic is not going to work at trial. Our final settlement conference is in two weeks andany help would be ap- preciated. Thanks.


From: “W. Scott Sonntag” <wss@forsondri.com>


Dan, to my knowledge no court has


ever applied this provision. It was just re- jected in my case on the Eastern Shore, but the order just says “denied.” The “un- used” statute provides for post verdict relief anyway as I recall. Call me if you like. Medical Mutual always threatens this statute but has not been able to show me where it has actually been applied. They are “hopeful” that some day in the right case it will.


From: George Tolley <4gtolley@lawdjb.com>


First — there is absolutely no reason


to allow an annuitist to testify at trial, and every reason to oppose such testimony strenuously. Even if you accept the propo- sition that the application of Section 11-109(c) requires such testimony, it is clear from the statutory language that such a determination is made by the court, af- ter the jury renders its verdict. The jury does not need to hear evidence about an- nuities, which would only be misleading, confusing and prejudicial to the plaintiff. One good authority for the proposition that an award for future damages must be a lump sum, rather than a structured payout, is the United States Supreme Court, in Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 533 (1983): “An award for impaired earning capacity is intended to compensate the worker . . . . The award in could in theory take the form of periodic payments, but in this country it has traditionally taken the form of a lump sum, paid at the conclusion of the litigation.” See also Reilly v. United States, 863 F.2d 149, 169 (1st Cir. 1988) (“The government’s argument that the award could have been made in the form of a structured payout, rather than a lump sum, seems to have been plucked from


(Continued on page 22) 20 Trial Reporter Summer 2001


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