F&P Obtains Dismissal of Workers’ Compensation Claimant’s Action for Judicial Review in Reported Decision from MD Court of Special Appeals

On March 31, 2021, the Maryland Court of Special Appeals, in a reported opinion, reversed the Circuit Court for Harford County’s grant of summary judgment to a workers’ compensation claimant.  The Circuit Court had granted judgment despite the fact that the claimant was seeking judicial review of a Maryland Workers’ Compensation Commission’s decision that chose not to exercise its plenary power to re-open or re-visit a prior order adverse to the claimant.  Applying precedent from the Court of Appeals, the intermediate appellate court had no difficulty holding that there is still no right of judicial review when the Commission chooses not to disturb a prior award or order.  Rather, the Court held that the Circuit Court should have granted the Employer’s (the Harford County Board of Education) and Insurer’s (the Maryland Association of Boards of Education) motion to dismiss the action.  F&P Principal David A. Skomba argued the case before the Court of Special Appeals and was joined on brief by fellow Principal Angela Garcia Kozlowski and Associate Natalie J. Johnson.

View the argument and decision.

Franklin & Prokopik Secures Complete Reversal of $400,000 Jury Verdict in Premises Liability Case

On February 25, 2021, the Maryland Court of Special Appeals reversed a $400,000 jury verdict entered against one of Franklin & Prokopik’s retail clients in 2019.  The case involved a customer who sued a grocery store alleging that she was struck while shopping by a stocking cart being pushed by a vendor who was at the store stocking its merchandise.  Plaintiff claimed that the vendor should be treated as the grocery store’s employee. Plaintiff’s counsel, who deployed the “Reptile Theory” in opening and closing arguments, also argued that because the business had no security footage of the incident, the business must have spoliated/destroyed evidence.  There was no evidence offered of the destruction of video at trial.  Instead, the store owner offered testimony that the store’s surveillance system did not capture the incident at issue.  Over challenges raised by the store, the trial court allowed the jury to decide whether the vendor was an employee of the store and provided a jury instruction related to spoliation of evidence. The jury found in favor of Plaintiff at trial.  On appeal, The Maryland Court of Special Appeals reversed the jury’s verdict and ordered that a defense judgment be entered in favor of the store. Firm Principal Steve Marshall tried the jury trial and briefed and argued the successful appeal.

In reversing the trial court, the Court of Special Appeals held that a defense judgment should have been entered at the close of the Plaintiff’s case, as there was insufficient evidence for the jury to conclude that the store owner could be vicariously liable for the acts or omissions of an employee of a vendor. The Court held that general control over an independent contractor’s work, such as having the vendor check in, and reviewing the vendor’s work once completed, or allowing the vendor to use a stocking cart, does not amount to the type of control that the store had to exert over the vendor’s employee in order for the store to be vicariously liable for the vendor’s actions.  As the store did not have control over the “method and operative detail” of the vendor’s work, there was no basis for establishing vicarious liability on the store owner. To that end, the Court reversed the jury’s verdict and directed the entry of a defense judgment in the case.

The Court of Special Appeals also held that the trial court abused its discretion in providing a jury instruction as to spoliation of evidence. The opinion clarified that under Maryland law before a spoliation instruction can be given to a jury, a plaintiff must establish, and the trial court must make a legal determination that evidence actually existed and was destroyed. The Court noted that in this case, Plaintiff did not meet her burden to show that direct evidence of the video surveillance footage of the incident actually existed or that it was destroyed. As such, the trial court improperly provided the instruction as to spoliation of evidence because it invited and permitted the jury to speculate regarding concealment, destruction, and failure to preserve evidence that was never shown to actually exist.  The Court found that to be significantly prejudicial to the store. Even though the Court had already directed that judgment be entered in favor of the Defendant, the Court said it would have still reversed the judgment based on the spoliation instruction and ordered a new trial.

This is also the first reported case in which an appellate court in Maryland has addressed the impropriety of Plaintiff’s attorneys’ use of the Reptile Theory in opening and closing arguments.  Specifically, the Court here admonished Plaintiff’s counsel’s use of reptilian tactics in both his opening and closing statements as encouraging jurors to make the store owner an insurer of its customers’ safety while on its premises. The Court stated that these tactics and arguments invite jurors to disregard their oaths and to become non-objective viewers of the evidence or to go outside that evidence to bear on the issues of damages; purely subjective considerations are improper in Maryland. While not determinative to the outcome of this case, the opinion provides the basis for mounting legal challenges to a Plaintiff’s bar that loves to embrace the use of the Reptile Theory.

This case is a significant decision that will provide clear guidance to trial courts moving forward when dealing with cases involving the actions of vendors and their employees while in a retail establishment.  It also serves to guard against completely fabricated claims invented by plaintiffs that the absence of video surveillance of an incident equates to some act of destruction of evidence.  The law is now clear that before a trial court can grant a spoliation instruction, the trial court must first find that there was evidence that actually existed and which was destroyed or not properly preserved.

The reported case is Giant of Maryland, LLC v. Karen Webb (No. 413, September Term, 2019).

See the memorandum and opinion here: https://www.courts.state.md.us/data/opinions/cosa/2021/0413s19.pdf.

If you have any questions regarding this case or any other retail and hospitality matter, please contact Steve Marshall at smarshall@fandpnet.com or at 410-230-3612.

Principal Ralph Arnsdorf is Selected Fellow in the Construction Lawyers Society of America

Ralph L. Arnsdorf, F&P principal, has been selected as a Fellow in the Construction Lawyers Society of America. Ralph is one of 1,200 attorneys, throughout the United States and internationally, to be given this honor. The Fellowship is an invite-only, society of construction attorneys. Lawyers are selected based on accomplishments in any of the disciplines within construction law as well as possessing a superior ethical reputation.

An experienced civil litigator, Ralph has been providing a broad spectrum of legal services to clients for more than 35 years. He works extensively in the construction field and has represented architects and engineers, general contractors, subcontractors, owners, and suppliers in a full range of cases from construction site accidents to delay and disruption of schedule claims.

Attorneys are selected to Fellowship membership through Fellow input, nominations by Fellows, research, attorney opinions, as well as some input from active and retired judges, among other qualifications. The CLSA strives for a preeminent level of diversity and most fellows are on the partner or shareholder level in their respective firms. For more information, please visit the CLSA site at https://www.constructionsociety.org/.

 

F&P Spotlight on Paralegal Christine Mueller

What is your practice area and how did you choose it?
I am a litigation paralegal in insurance defense concentrating mostly on Commercial Transportation or premise liability cases.

What’s your favorite thing about working with your clients?
I like that I have established a trusting relationship with our clients. If at any time the attorney is unavailable, our clients will contact me to discuss a case or relay information. It shows how important my job as a paralegal truly is.

What is your favorite aspect of working at F&P?
Overall, I love the people I work with. Our liability team works extremely well together and are always more than willing to help each other out.

Favorite Restaurant:
Chiapparelli’s  — I could eat their salad for days

Favorite Show:
Friends (all time): This Is Us (Current)

Favorite Event in Baltimore: 
Generally, I love live music. Baltimore has such a huge local music scene.  But if I had to pick just one particular event, it would be opening day for baseball. I love how alive our city becomes.

What’s your proudest accomplishment?
Honestly, I believe the fact that I have been at the same job now for almost 16 years is a huge accomplishment. In our current times, not a lot of people can say that. Most people do not stay in one position for very long. I have established a good relationship with our clients and they know I am someone they can rely on.

Tell us something about you that few of your colleagues and clients would know.
This is more of a fun fact but I traveled a lot growing up and was able to go hang gliding off a cliff in Rio de Janeiro, Brazil when I was in High school

What do you like to do outside the office?
When I am not working I like to spend time with friends and family especially my 8-year-old twins, run a girl scout troop, see live music shows and go to baseball/football games.

Have you read any good books or seen any good movies this year that you would recommend?
The Way Back; Queen’s Gambit (mini-series)

What is your favorite food?
Mexican is my absolute favorite but Italian and India aren’t too far behind

What is your all-time favorite city or town and why?
I don’t have a favorite but I have the best memories in Las Vegas and New York City. I was able to celebrate my 21st birthday in Las Vegas with family and friends. I’ve been so many times and even witnessed my best friends get married there on more than one occasion. I love the atmosphere of NYC and the hustle and bustle and that there is always something to do.

What was the best news you ever received?
When I found out I was having twins. There is nothing like it.

What is the weirdest thing you have ever eaten?
Anyone that knows me knows I don’t eat weird hahaha I barely eat normally

If you could have lunch with anyone in the world who would it be?
Drew Barrymore has been my all-time favorite person since I was a teenager.  I would love to have lunch with her.

Do you have any bizarre talents?
Not that I can think of

 

F&P Announces 2021 Promotions

Effective January 1st, Franklin and Prokopik promoted four attorneys to counsel. We applaud these team members who have demonstrated skill and professionalism within the legal community, and at F&P. Our attorneys have received recognition from peers and distinguished legal organizations. Please join F&P in congratulating the following attorneys and thanking them for their dedication to the firm!

Renee Bowen, counsel, Baltimore

Elena Patarinski, counsel, Richmond

Chris  Smith, counsel, Baltimore

Ellen Stewart, counsel, Baltimore

 

F&P Obtains Favorable Appellate Opinion Regarding ‘Open and Obvious’ Jury Instruction

On December 16, 2020, in a reported opinion by Judge J. Berger, the Court of Special Appeals of Maryland reversed the trial court’s judgment in Stephanie Gonzalez-Perdomo v. Six Flags America, L.P. (Case No. CAL-18-15218, Circuit Court for Prince George’s County) and remanded the matter for a new trial on liability consistent with the Court’s opinion.

The Court of Special Appeals held that the trial court’s refusal to instruct on the “open and obvious” defense when the issue was clearly raised by the facts adduced in evidence was an abuse of discretion and required a reversal of the judgment and a new trial on liability. The court specifically held that the pattern instructions were insufficient as a matter of law when the defense was generated as an issue of fact. Most significantly for the defense bar, the Court directly calls for the Standing Committee on Pattern Jury Instructions of the Maryland State Bar Association to review Maryland Civil Pattern Jury Instructions – Civil (“MPJI-Cv”) 24:3 (2019): “The duty owed to an invitee is to use reasonable care to see that those portions of the property that the invitee may be expected to use are safe.” The Court points out that, as F&P argued, the pattern instruction is incomplete and there is a lack of clarity with regard to the case precedent set forth in premise liability cases like Casper, 316 Md. at 582, and Tennant, 115 Md. App. at 389, “a possessor of land has the duty to protect an invitee from injury caused by an unreasonable risk that the invitee would be unlikely to perceive in the exercise of ordinary care for his or her own safety, and about which the owner knows or could have discovered in the exercise of reasonable care.”

Click here to read the opinion of Judge Berger.

Oral argument – https://www.courts.state.md.us/sites/default/files/import/cosappeals/media/20201105_1620.mp4 

Super Lawyers Recognizes F&P Attorneys for 2021 Super Lawyers and Rising Star Honors

Super Lawyers has announced its 2021 designees for Maryland Super Lawyers and Maryland Rising Stars. Super Lawyers is a nationally recognized rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement.

The final list for Super Lawyers includes 5% of the lawyers in each state. Rising Stars must be under 40 years of age or in practice for 10 years or less. This list comprises 2.5% of lawyers in the state. Each candidate is selected by attorney-led research staff and is evaluated on a high degree of peer recognition or professional competence.

2021 Super Lawyers:

Ralph Arnsdorf, Construction Litigation
Tamara Goorevitz, Transportation/Maritime
John Handscomb, Workers’ Compensation
Maija Jackson, Workers’ Compensation
Angela Garcia Kozlowski, Workers’ Compensation
Laura McKenzie, Workers’ Compensation
Michael Prokopik, Workers’ Compensation

2021 Rising Stars:

Imoh Akpan, Civil Litigation: Defense
Michael Bennett, Workers’ Compensation
Renee Bowen, Transportation/Maritime
April Kerns, Workers’ Compensation
Heather Rice, PI General: Defense
Miranda Russell, Business/Corporate
Ellen Stewart, Civil Litigation: Defense
James Temple, III, Workers’ Compensation
Patrick Toohey, Civil Litigation: Defense
Patrick Wachter, PI General: Defense

F&P Spotlight on Dave Skomba, An F&P Founding Principal

What is your practice area and how did you choose it?
I practice in several discrete areas including insurance coverage, commercial law and tort defense, as well as product liability, construction defect matters and workers’ compensation.  The tie that binds all these areas is my focus on litigation: I am a trial attorney and an appellate advocate.  While I value the counselor role, especially in insurance coverage, contract and related business matters, I enjoy immensely the challenge of effectively communicating our clients’ interests to both juries and jurists whatever the subject area might be.

What’s your favorite thing about working with your clients?
I love the sense of team, of working together toward a common goal and regardless of result knowing that we did all we could to realize the clients’ goals in the particular mater.

What is your favorite aspect about working at F&P?
The people.  We have a talented and diverse group of attorneys, paralegals and staff that each have their own story and so much to offer.  It has been a pleasure to watch so many of them come to F&P and learn, grow and thrive and then in turn themselves become mentors to new additions to the firm.

What’s your favorite restaurant?
My wife, Jackie, and I have celebrated “date night” every Tuesday at Shannon’s Saloon in Ellicott City for almost 30 years, since our children were very young.  It is important to take time to be with the most important person in one’s life and Shannon’s has been the place where Jackie and I have taken that time.

What’s your proudest accomplishment?
Being part of raising two wonderful children who are accomplished, intelligent, and responsible adults and who are themselves kind and considerate of others.

Tell us something about you that few of your colleagues and clients would know.
That I am a native of New Jersey where my family farmed.

What do you like to do outside the office?
I love to coach and be involved with basketball.  I have coached all levels of boys and girls basketball over the last few decades!  For the last 15 years I have had the honor of coaching girls high school basketball at Mount de Sales Academy where we have been successful both on the court and in the classroom.

Have you read any good books this year that you would recommend?
“Why Us? How Science Rediscovered the Mystery of Ourselves” by James Le Fanu, MD

What is your favorite food?
I am a beef-eater!  A good steak, medium rare, is a divine gift.

What is your all-time favorite city or town and why?
Georgetown in the District is my home away from home (but I also like the rest of DC)!

What was the best news you ever received?
Outside of my wife saying “yes,” the news that I had been accepted Early Action at Georgetown University into the School of Foreign Service at Christmas time in 1978.

What is the weirdest thing you have ever eat?
I don’t eat weird things!

If you could have lunch with anyone in the world who would it be?
Asked this years ago I responded immediately and without hesitation, John Clease of Monty Python fame.  I still feel that way, especially if he were to be paying the bill.

Do you have any bizarre talents?
I am a lawyer.  Of course, I have bizarre talents.  I am just not going to share them.

Imoh Akpan to Co-Chair Fannie Angelos Virtual Gala

 

F&P Receives US News and World Report’s “Best Law Firms” Designation for 2021

The U.S. News & World Report and Best Lawyers released their “Best Law Firms” rankings for 2021 last week. F&P is pleased to announce that we have received the following designations:

  • Metropolitan Tier 1
    • Baltimore
      • Workers’ Compensation Law – Employers
  • Metropolitan Tier 2
    • Baltimore
      • Employment Law – Management
      • Litigation – Construction
    • Washington, D.C.
      • Workers’ Compensation Law – Employers

Client and peer ratings determine firm rankings. A firm must also have an attorney recognized in the 26th edition of Best Lawyers in America. The survey for 2021 saw record participation, with 8.1 million evaluations reviewed. Nationally, 15,587 law firms and 75 practice areas were reviewed. A total of  2,179 firms received a national ranking.

To find out more about these rankings and the “Best Law Firms” process, please visit the website at https://bestlawfirms.usnews.com/.