From The Listserv (Continued from page 15)
Taylor 310 A.2d 49; Balto. Transit v. Harroll, 141 A.2d
912.They deal with employer signed insurance policies. Also, Roberts v. Total Health Care, 675 A.2d 995 ( I believe affirmed by CA) Bachmann v. Glazer, 559 A.2d 365. Hope they help.
SUBJECT: RE: ATTORNEY AS EXPERT WITNESS
Sent by Member: Robert S. Campbell <
rcampbell@stkgrlaw.com>
Listmates: In a pending police brutal- ity/civil rights case, in a motion for summary judgment, defense counsel has submitted an affidavit of a prominent lo- cal criminal law attorney as support for the proposition that the police officers in the case acted reasonably. The affidavit cites case law and comes to legal conclu- sion about the issues in the case based on the officer’s deposition testimony. Other than the context of malpractice, I cannot imagine any possible circumstance where such expert testimony would be admis- sible. If attorneys could be expert witnesses as to what is the appropriate le- gal standard in non-malpractice cases, the MTLA members would all be testifying at each others P.I. trials as to what’s the effect of Maryland’s Boulevard Rule. I’m moving to strike the affidavit. Is anyone
aware of any pertinent authorities on the subject or have prepared motions in simi- lar circumstances? Or am I missing something?
From: Mike Winkelman <
3mike@mccarthycostello.com>
I believe the appellate courts have cre- ated this situation and I do not entirely disagree with the actions of defense coun- sel based on recent case law. Read the case of McCoy v. Hatmaker, CSA this year. I lost the case so I am very familiar with the issues. One issue was the legal stan- dard for gross negligence. The circuit court did not allow my expert’s testimony on this issue because it was a legal stan- dard and he was not an attorney - I called him for standard of care for a paramedic. I thought this ludicrous, appealed the de- cision and lost. The CSA held that he could not speak to a legal standard. Judge Theime asked me, during argument, how my expert could know what gross negli- gence was without legal training. He wrote the opinion. The language could be read to support the defense motion in your case. The Court of Appeals denied cert.
From: George Tolley <
3gtolley@lawdjb.com>
I respectfully disagree. I do not think that the decision in McCoy v. Hatmaker, 135 Md. App. 693, 763 A.2d 1233
(2000), supports an affidavit by a lawyer interpreting the legal standard applicable in any case — P.I. or civil rights or other- wise. Indeed, the language used by the Court in McCoy expressly condemns ef- forts by “experts” to testify about what the law requires: “Were the trial court to have allowed [the paramedic’s] conclusory af- fidavit, it would have abandoned its duty as expert in the law and taken from any potential jury—had one been empan- eled—the role of sifting through the facts of Hatmaker’s actions in this case and applying the law to those facts.” McCoy, 135 Md. App. at 723, 763 A.2d at 1249. The Court in McCoy goes on to cite cases from other jurisdictions that all reach the same conclusion: “As a general rule, an expert may not testify as to whether a cer- tain legal standard has been met . . . Opinion testimony may be received re- garding the underlying factual premise, which the fact finder must consider in determining the legal conclusion to be drawn therefrom, but may not be offered as to whether the legal conclusion should be drawn.” McCoy, 135 Md. App. at 723 n.10, 763 A.2d at 1249 n.10 (quoting Norris v. Zambito, 520 S.E.2d 113, 116 (N.C. App. 1999)). In the civil rights case, it appears to me that the defense has done precisely what the Court in McCoy for- bade, by submitting an affidavit from an “expert” who opines as to “whether a cer- tain legal standard has been met.” I’d cite that case in a motion to strike the affidavit.
Fall 2001
Trial Reporter
17
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