Late Breaking Decisions from the Court of Appeals


Decisions by the Court of Appeals in the John Crane, Inc. v. Scribner and Witte v. Azarian were recently reported. MTLA’s Amicus Committee filed briefs in both cases. MTLA Member George S. Tolley, III of Dugan, Babij, Tolley & Spector, LLC in Timonium authored the brief in the Crane case and David Kopstein of Dross, Levenstein, Perilman and Kopstein in Seabrook filed the MTLA amicus brief in the Witte case. Tom Cardaro of Balti- more is the chair of MTLA’s Amicus Committee.


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A brief digest of both opinions follows. ␣␣ John Crane, Inc. v. Scribner, No. 01-92 (Md. Jun. 11, 2002).


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␣ ␣ In this appeal from a judgment in favor of a worker injured through exposure to asbestos, the manufacturer-defendants sought to reduce the amount of the judg- ment by application of the cap on non-economic damages, Md. Cts. & Jud. Procs. Code Ann. § 11-108. ␣␣␣ An amicus brief filed by Maryland De- fense Counsel urged adoption of a “manifestation” test, which would have expanded the scope of the cap to include causes of action arising prior to July 1, 1986 — the effective date of the cap — but accruing after that date. ␣␣␣␣In response, MTLA was granted per- mission to file its own amicus brief (authored by George S. Tolley III, Es- quire), urging the Court of Appeals to reject the “manifestation” approach and to retain the traditional distinction be- tween when a cause of action arises and when it accrues.␣ MTLA further argued that the determination of when a cause of action “arose” for purposes of applying the cap is a retrospective analysis reserved by the General Assembly for the trial court alone. ␣␣␣␣ The Court of Appeals rejected the “manifestation” approach in favor of the standard urged by the plaintiffs and MTLA.␣ In addition, following MTLA’s argument, the Court held that, where the asbestos exposure occurred prior to July 1, 1986, the trial court may rule as a mat- ter of law that the cap does not apply.


␣ Summer 2002 ________ Trial Reporter 65


␣␣␣␣ This case is the first to address the scope of the so-called “20% Rule” in C&JP §␣ 3- 2A-04(b)(4).␣␣␣ That Rule, part of the␣ statute that requires each party in a medical malpractice case to file a Certifi- cate of Merit, disqualifies attesting experts who “devote annually more than 20 per- cent of [their] professional activities to activities that directly involve testimony in personal injury claims.”␣ At trial, the defendant physician moved to dismiss the case based upon evidence that the plaintiff ’s attesting expert spent about 25% of his time on activities, such as law- yer-requested examinations and record reviews,␣ that “could lead to” testimony regarding personal injury claims, even if those activities did not actually result in testimony.␣ The trial judge granted the motion.␣ ␣ After the Court of Special Ap- peals reversed, the Court of Appeals granted cert. ␣␣␣␣ MTLA asked for and was granted per- mission to file an amicus brief urging the Court to adopt a narrow view of the term “activities that directly involve testi- mony....”␣ The Court adopted that view. ␣ Affirming the Court of Special Appeals,


Witte v. Azarian, Cour of Appeals No. 103, September Term, 2001. Decided June 18, 2002


the Court held that␣ not all␣ forensic activi- ties should␣ be considered in determining whether an attesting expert satisfies the 20% Rule.␣ Only the following types of activities are to be considered:␣ (1) the time the expert spends in, or traveling to or from, court or deposition for the pur- pose testifying, waiting to testify, or observing events in preparation for testi- fying, (2) the time spent assisting an attorney or to her member of a litigation team in developing or responding to in- terrogatories and other forms of discovery, (3) the time spent in reviewing notes and other materials, preparing reports, and conferring with attorneys, insurance ad- justers, other members of a litigation team, the patient, or others after being informed that the doctor will likely be called upon to sign an affidavit or other- wise testify, and (4) the time spent on any similar activity that has a clear and direct relationship to testimony to be given by the doctor or the doctor’s preparation to give testimony. ␣␣␣␣ The decision is a substantial victory for plaintiffs in medical negligence cases.␣ An expansive interpretation of the 20% Rule could have dramatically limited the pool of available physicians willing to serve as attesting experts.␣


Thomas C. Cardaro


PH: 410-752-6166 FX: 410-752-6013


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