From the Business Litigation Practice.
By Marisa A. Trasatti
Maryland Defense Counsel’s (“MDC”) lobbyists have been busy monitoring the bills affecting its members during the 2014 General Assembly Session. John Stierhoff, Ileen Ticer, Gardner Duvall, Mike Dailey, Chris Boucher and Nikki Nesbitt are among those who have testified or are expected to testify and propose amendments to certain bills. Highlighted below are some of the bills on which MDC acted:
HB 73 / SB 247: A hot topic this year is the reversal of the Maryland Court of Appeals’ decision in Tracey v. Solesky, 427 Md. 627 (2012) (concerning dog bite liability and holding that an owner or landlord could be held strictly liable for dog bites from pit bulls or pit bull mixed breeds, so long as the owner or landlord knew or should have known that the dog was part pit bull.). HB 73 / SB 247 would establish that in a claim for damages against a dog owner for death or personal injury, evidence that the dog caused the personal injury or death creates the rebuttable presumption that the owner knew or should have known of the dog’s vicious propensities. Given Tracey, MDC supported the rebuttable presumption at the heart of HB 73 / SB 247, but sought for the law to be redrafted to eliminate the interpretation that it reverses the burden of proof on any element of a dog liability claim other than the propensity of the dog to cause harm. Additionally, MDC proposed to strike out the section requiring every liability claim to be submitted to a jury even if the court would grant judgment as a matter of law to the defendant. If the rebuttable presumption were established as a matter of law, then MDC submitted that the Rules of Civil Procedure should be applied as in any other case. The Judicial Conference and many others, agree with MDC’s view. This legislation is a compromise to protect innocent landowners while avoiding the strict liability for dog owners that many legislators advocate for.
SB 209: This dram shop liability bill would for the first time impose liability on liquor licensees and their employees for accidents caused by drunk drivers leaving the licensed premises in Maryland. Under the proposed act, a person may bring an action against a liquor licensee or its employee who sold or furnished alcoholic beverages to an individual if: (1) the licensee/employee knew or reasonably should have known that the individual to whom the alcoholic beverages were sold or furnished was “visibly under the influence of alcoholic beverages”; (2) the licensee/employee could have reasonably foreseen that the individual might drive or attempt to drive a motor vehicle after consuming the alcoholic beverages; (3) after consuming the alcoholic beverages, the individual negligently drove or attempted to drive a motor vehicle; and (4) the individual’s negligence in driving or attempting to drive the motor vehicle was a proximate cause of the damages claimed in the action. The standard of proof to be applied is clear and convincing evidence and a one year statute of limitations applies to such claims. MDC urged an unfavorable report with respect to SB 209 on grounds that it imposes far too lenient a standard of liability for such liability to be imposed fairly. Patrons are too unpredictable to impose liability fairly to strangers to the licensee, and there is no objective and equitable way to impose a meaningful standard of liability.
SB 215 / HB 280: This purpose of this Act is to prohibit employers or their insurers, except under certain circumstances, from being required to pay for a prescription that is dispensed by a physician to certain covered employees, and generally relating to payment for prescriptions dispensed by physicians to covered employees. According to Ileen M. Ticer, Esquire, Co-Chair of the MDC Workers’ Compensation Committee, physician dispensing continues to be an unnecessary cost driver in compensation claims: “It is a practice that is not seen on the health side, only in workers’ compensation. Repackagers, who supply the drugs, hype this practice to physicians as a way to increase their income and it falls on the backs of businesses and insurers to absorb the cost.” Generally, the Act would only require employers/insurers to pay for prescriptions dispensed by a physician to a covered employee if that prescription is dispensed within 30 days after the covered employee’s initial consultation, and would limit the prescription to no more than a 30-day supply of the medication. MDC supports this Act, but submitted a proposed Amendment to clarify that it applies to prescriptions dispensed by a physician to a covered employee whose accidental personal injury, compensable hernia, or occupational disease has been “accepted by the employer or its insurer” or “has been determined to be compensable by the Commission.”
HB 219 / SB 216: MDC supported this workers’ compensation bill which would allow either party to request subpoenas once an issue has been filed by either party. In its current form, the applicable statute has been interpreted to prohibit the issuance of subpoenas until a disputed issue in a compensation claim has been set for hearing. Issues can be filed at any time and it usually takes 3-4 weeks after an issue has been filed in order for a hearing to be set. Due to the restrictions of HIPAA, MD. CODE ANN., HEALTH GEN. § 4-306, and the speedy resolution of disputes by the Workers’ Compensation Commission, the parties are prevented from being able to subpoena and receive relevant medical and employment history prior to the hearing. This bill would allow either party to request subpoenas once an issue has been filed by either party. As of the date of this article submission, the bill passed the Senate Finance Committee. According to Ticer, “In an effort to alleviate the time constraints imposed by the prior statute, all parties- claimants, employers, carriers, and the Commission, under the direction of Delegate Jameson and Senator Klausmeier, worked together in order to pass a bill that was acceptable to all.”
HB 439: This bill provides that an individual may be excused from jury service if the individual is a primary caregiver for a minor under the age of 6 years and unable to find child care for that minor, is a breast-feeding mother, or is a parent currently on paternity or maternity leave. MDC urged an unfavorable report with respect to House Bill 439. Although MDC agreed that it may well be difficult for the primary caregivers, mothers and parents on maternity leave to appear for jury service, the Court already has broad discretion to when it comes to considering a request to be excused from jury service. Specific exclusion of certain groups of persons from jury service could unintentionally skew the makeup of juries and the constitutional right to a jury of one’s peers. MDC proferred that the bill created a slippery slope which is better addressed by the judge and lawyers during jury selection.
HB 568: This bill would allow a “prevailing plaintiff” in a civil action suing to enforce a right secured by the Maryland Constitution or whose litigation brings “about a voluntary change in the conduct of the Defendant” to collect attorney’s fees and expenses from the Defendant. The Defendant would not be entitled to fees unless the Plaintiff’s claim was frivolous. The fees would not be limited by existing caps on awards under the Local Government Tort Claims Act. The Maryland Defense Counsel urged an unfavorable report with respect to HB 568. MDC submitted that not only was the bill patently unfair to Defendants, but it would encourage litigation against our public entities and other private parties.
Members should also note that although HB 1009 / SB 789 is not scheduled to be heard until after the submission of this article, it is expected that MDC will submit written testimony against this bill and in favor of preserving the cap on noneconomic damages, especially at this time when healthcare providers are facing unprecedented and unsustainable jury verdicts relating to birth injuries and ever-increasing insurance rates. This bill would alter the maximum amount of noneconomic damages that may be recovered in health care malpractice and other civil actions for catastrophic injury under specified circumstances.