Miracles Can Happen (Continued from page 11)
quent injury is to blame, the defense gen- erally must offer expert testimony. S.B. Thomas, Inc. v. Thompson, 114 Md. App. 357 (1997). Bear in mind that many of the plaintiff ’s treating medical records may also reference the unrelated injuries.
LITIGATION ISSUES
Why a Jury Trial The threshold for a jury trial prayer is when the “amount in controversy exceeds the sum of $ 10,000.” Md. Const., Dec- laration of Rights., Art. 23. What this means is that a case can be filed as non- jury in either the district court or the circuit court, provided the amount claimed does not exceed $10,000.00. Md. Cts. Jud. Proc. Art. §§ 4-401, 4-402. Before filing in a given county or Balti- more city, it is wise to investigate whether a court or jury trial is advisable. Keep in mind that an $8,000.00 verdict from a judge, based upon $5,000 to $6,000 in “specials” is better than “0.00” from a jury.
Venue
There are venues where the juries are less critical of minimal property damage plaintiffs. Keep in mind that venue lies not only where a defendant “resides,” but also where that party “carries on a regular business, is employed, or habitually en- gages in a vocation.” Md. Cts & Jud. Proc. Art. §6-201(a). Un/underinsured motor- ist carriers do business statewide; an action against a “non-resident individual” can be brought in any venue. Md. Cts. & Jud. Proc. Art. §6-202(11).
Liability Given Mason’s citation of liability as a
reason supporting the admission of pho- tographs, a motion for summary judgment adjudicating liability issues is of greater importance.
Motion for New Trial Not every jurist is pleased with a de- fense victory, especially when the plaintiff has presented a compelling case. A mo- tion for new trial, if timely filed, affords the court the opportunity to give that plaintiff another day in court. Md. Rule 2-533. Once granted, the decision is vir- tually not reviewable on appeal. Cf Mason, 151 Md. App at 28 (upheld re- fusal to grant a new trial upheld, despite the defense expert’s testimony that that plaintiff was injured). But see Lemon v.
Fall 2003
Ernst, 822 A.2d 768 (Pa. Super. 2002) (failure to grant new trial error where de- fense expert states the plaintiff is injured).
FACTUAL ISSUES
Preparation of the Plaintiff ’s Testimony Any contradictions, no matter how
small, are magnified in the eyes of a jury already predisposed by “common sense” to disbelieve the plaintiff. Contradictions between trial testimony, depositions and/ or interrogatory answers only serve to “confirm” what skeptical jurors are think- ing. It is important to caution the plaintiff that the jury is unlikely to “buy” the no- tion that a minor property damage accident caused “excruciating” or dis- abling pain.
Corroboration of the Injury Testimony from family members, co-
workers, ministers and friends confirms what the plaintiff has said all along: the accident caused injury. These witnesses help frame the question “are all of these people really lying?”
Testimony of Treating Health Care Provider With the adoption of Md. Cts. & Jud.
Proc. Art. §10-104, most minor property damage personal injury cases are tried without the testimony of the treating health care providers. On some occasions, the testimony of a family doctor might go a long way toward validating the client’s injuries. A district court judge, quick to cut bills, may think twice if there is a live witness there to explain them. However, calling an expert to the stand allows the defense to cross-examine about lawyer referred patients and the income derived from such referrals.
ATTACK THE COMMON SENSE – EXPERT TESTIMONY Maryland permits expert testimony “in
the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or determine a fact in issue.” Md. Rule 5-702.
Although the Mason
decision ruled that expert testimony is not a precondition to the admission of prop- erty damage photographs, it is silent on whether the plaintiff can call a biome- chanics expert to refute the notion that injury requires property damage. The Rules require that the court “shall determine (1) whether the witness is quali- fied as an expert by knowledge, skill, experience, training, or education; (2) the appropriateness of expert testimony on the particular subject; and (3) whether a sufficient factual basis exists to support the testimony. Md. Rule 2-702. The bio- mechanics expert, before being allowed to testify, must show that he or she is suffi- ciently trained in the scientific issues involved, Sloan v. Clemmons, 2001 Del Super. LEXIS 535 (Del. Super. 2001) (“whether a particular trauma caused a particular injury requires and answer form an expert trained in the healing arts”), that the “science” behind the opinions offered passes muster under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993); Martel v. Allstate, 790 So.2d 767 (La. App. 2001) (former police officer rendered opinion based upon improper science); and that there is a sufficient, factual basis to support the opinion offered.
CONCLUSION As this article began, so shall it end.
There is no incantation or spell that will protect accident victims who are not “lucky” enough to have their cars totaled. But, start with an appreciation of the na- ture of the defense, add a plan to minimize the stigma of minor property damage, toss in a dash of good luck and the right jury – and miracles can happen.
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