From The Listserv (Continued from page 20)


thin air”); Muenstermann by Muenster- mann v. United States, 787 F. Supp. 499, 527 (D. Md. 1992) (“In the absence of a structured settlement between the parties, the Court has no alternative but to order the payment of a lump sum”). Second — in the absence of a structured settle- ment, a periodic payment scheme is never appropriate. The plaintiff, who has suf- fered permanent brain injury, with a corresponding diminution of earning ca- pacity and lifetime need for medical care and treatment, should not be compelled


to accept the risks inherent in a periodic payment scheme, which (not incidentally) include the bankruptcy of the annuity company. See, e.g., Arizona Life & Dis- ability Ins. Guar Fund v. Honeywell, Inc., 945 P.2d 805 (Ariz. 1997) (arising out of insolvency of insurance company that sold “guaranteed investment contracts” to employee retirement plan); Vetter v. Se- curity Continental Ins. Co., 567 N.W.2d 516 (Minn. 1997) (arising out of insol- vency of reinsurance company that had purchased annuity contracts from origi- nal insurer); Bennett v. Virginia Life, Accident, and Sickness Ins. Guar. Assn, 468 S.E.2d 910 (Va. 1996) (arising out


of insolvency of insurance company that sold annuity contracts to plaintiffs); Hatcher v. Haupert, 655 N.E.2d 1229 (Ind. 1995) (arising out of insolvency of insurance company that sole insurance contracts to plaintiff). In Maryland, the leading case on Sec. 11-109(c) is Kent Village Assoc. J.V. v. Smith, 104 Md. App. 507, 524-27 (1995). In that case, the Court of Special Appeals considered the arguments in favor of imposing an annu- ity under the terms of 11-109(c), and flatly rejected them all.


SUBJECT: SUBPOENA OF RECORDS IN DISTRICT COURT


From: Eric Schloss <schlosslaw@home.com>


The following situation has come up


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several times during District Court mo- tor tort cases involving my clients. Defense attorneys are issuing subpoenas regarding medical records pertaining to the particular plaintiff without notifying me that the subpoenas have been issued. My reading of Health General Section 4- 306(b)(6) would require the defense attorney to serve a copy of the subpoena on the person whose records are sought (i.e. the plaintiff’s attorney). Is my read- ing of this particular statute correct? If no, then is there a Md. rule or statute that would require the defense attorney to notify me that medical records pertain- ing to my client have been subpoenaed? Does anyone think that I would have suc- cess keeping the records out of evidence by arguing that the defense attorney has obtained the medical records improperly prior to the trial date under Md. Rule 3- 510(a) and (h)? Thank you in advance for any responses.


From: Andrew Freeman <adf@browngold.com>


Eric:


I believe (without checking the stat- ute) that you are correct regarding the requirement of Health General 4-306. In addition, all document subpoenas require notice to all other parties. A document subpoena (under Rule 3-510(a) in Dis- trict Court or Rule 2-510(a) in Circuit Court) is a subpoena to attend and pro- duce documents at a deposition. Rule 3-401(a) provides that the taking and use of a deposition permitted under the Dis- trict Court rules is governed by Chapter 400 of Title 2 (the Circuit Court rules). Rule 2-412(a) requires that a party desir- ing to take a deposition (including a “deposition” that is just for the produc-


(Continued on page 24) Summer 2001


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