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November 2003
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D.C. Court Of Appeal Reiterates That Service on the District Requires Service on the Mayor and on Corporation Counsel

In Dorsey v. D.C., the D.C. Court of Appeals held that Rule 4(m) means exactly what it says: for the District to be sufficiently served with a lawsuit, service must be made on both the Mayor and the Corporation Counsel.

Rule 4 (j) . . . supplements D.C. Code § 2-401 by providing that in order to effect proper service upon the District a plaintiff must serve the Mayor and Corporation Counsel. Therefore, because Dorsey failed to serve Corporation Counsel, service on the District was not proper.

The Court also rejected the plaintiff's motion to reinstate the action, on the grounds that the plaintiff has offered no explanation of her failure to comply with the rules as required by Rule 41(b).

D.C. Court of Appeals Vacates Punitive Damages Award In Light Of State Farm v. Campbell

In Daka, Inc. v. McCrae, Nos. 00-CV-1270 and 01-CV-227 (D.C. Dec. 24, 2003), the D.C. Court of Appeals vacated a jury award for punitive damages in a case involving negligent supervision of a managerial employee and unlawful retaliation against plaintiff for his claims of sexual harassment by that manager. The jury had awarded $187,500 in compensatory damages, $4,812,500 in punitive damages, and $276,493.28 in attorney's fees and costs.

The claim was brought by a male chef based on sexual harassment by a male supervisor.

The Court found that the punitive damages award, reflecting a ratio of 26:1 to the compensatory damages award, lacked the reasonableness and proportionality required for a punitive damages award.

The Court vacated the award and remanded the case to the trial court with directions to reduce the award of punitive damages to a sum consistent with the principles expressed by State Farm v. Campbell and this opinion. The Court noted that an award in this case that multiplies the sum awarded for compensatory damages by more than a factor of five will bear a very heavy burden of justification.

On remand, the plaintiff will not receive the option of accepting the remitted amount or a new trial on punitive damages. That is because the amount to be determined by the judge is the constitutional maximum which the jury could properly award, an amount that is actual award has already exceeded.

Maryland Court of Appeals Holds That $300,000 Plus Verdict In Auto Accident Case Must Be Reduced To $25,000 Due To Plaintiff's Reliance On Md. Courts and Jud. Proc. Code Sec. 10-104

A plaintiff, having taken advantage of the evidentiary shortcut provided by § 10-104 (c), is precluded from recovering more than $25,000.00, the jurisdictional limit of the District Court, notwithstanding the fact that the case was removed from the District Court and tried in the Circuit Court. James v. Butler (Md. Dec. 18, 2003).

Continue reading "Maryland Court of Appeals Holds That $300,000 Plus Verdict In Auto Accident Case Must Be Reduced To $25,000 Due To Plaintiff's Reliance On Md. Courts and Jud. Proc. Code Sec. 10-104" »

Maryland Court of Special Appeals Finds Orthopedist Qualified Under Md. Rule 5-702 To Render Opinion As To Cause of Erectile Dysfunction Resulting From Slip and Fall

In Samsun Corp., t/a Singer Exxon v. Bennett, the Court of Special Appeals upheld the trial court's discretionary ruling to admit expert testimony by the plaintiff's treating orthopedist on the issue whether a slip and fall injury caused the plaintiff's erectile dysfunction. The trial court had denied a motion in limine to exclude the expert testimony, and then had denied a motion for judgment based on the grounds that the plaintiff had failed to prove causation between the accident and the injury.

The Court of Special Appeals held, in part, that:

In the case sub judice, the lower court permitted Dr. Osteria, a licensed physician practicing in the field of orthopaedics, to offer an expert medical opinion concerning appellee’s erectile dysfunction. Dr. Osteria, we think, had the requisite knowledge in order to form an expert opinion concerning appellee’s erectile dysfunction. Although Dr. Osteria, unlike a urologist, is not a specialist in the area of erectile dysfunction, his knowledge, skill, experience, training, and education as an orthopaedist render him capable of testifying as a medical expert in the area. As Dr. Osteria explained, his field includes the diagnosis of spinal injury and the related symptoms of spinal injury, such as erectile dysfunction. Dr. Osteria offered the opinion that appellee’s erectile dysfunction was related to the lower back injury suffered at the Singer Exxon. His opinion, therefore, was consistent with his professional experiences and training. Thus, we conclude that the lower court did not abuse its discretion by denying the motion in limine and allowing Dr. Osteria to testify.

Don't Look A Gift Horse In The Mouth

Three years ago, a local philanthropist had bought 16.5 acres of land in a posh neighborhood of the District, and had offered to build a mansion there as the official residence for the Mayor of Washington, D.C., similar to the Gracie Mansion for New York City, and to be known as "the Casey Mansion." This was a proposed gift worth $50 million. There were some neighborhood organizations who disagreed with some of the details of the proposal, and three years of contentious debate followed. Finally, the philanthropist had enough, and has decided to give the land to the Salvation Army, which is going to sell it and use the proceeds to build a community center in Anacostia, one of the poorest neighborhoods in the District. A much better idea in my opinion. As for the neighbors of the proposed mansion site, now they are sweating over who will buy the land and how it will be developed.

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Application of D.C. Consumer Protection Procedures Act To An Insurer

In Athridge v. Aetna Casualty & Surety Co., No. 02-7134, the D.C. Circuit affirmed the trial court's dismissal of a claim under the D.C. Consumer Protection Procedures Act against Aetna. In this case, the plaintiff had been struck and injured by a car driven by a family member of an Aetna insured. Plaintiff brought suit against Aetna both in his own right and as as assignee of the at-fault driver. Among other things, Plaintiff claimed misrepresentations and omissions under the D.C. Consumer Protection Procedures Act (CPPA). The trial court granted summary judgment to Aetna on the CPPA count, finding that the Plaintiff could not maintain such a claim because the family member of the Aetna insured was not a "consumer" within the meaning of the Act, because Aetna's potential coverage of the family member was not a "trade practice" under the Act, and because the family member did not sustain damages.

The D.C. Circuit affirmed, but did so in a way that suggests that insurers do have potential liability under the CPPA.

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First Source website

First Source is an interesting resource. It provides A/E/C professionals free access to the industry's most comprehensive, up-to-date library of formatted commercial building product information, including manufacturers' addresses, telephone numbers, trade names, and regional distributors.

This might be useful to attorneys involved in disputes concerning construction defects, products liability or mold litigation.

Maryland's Business and Technology Case Management Program

Maryland has a business and technology case management program, and one facet of it is a website where trial court decisions that are relevant to business and technology issues will be posted. The Maryland State Bar Association website has posted an article to publicize this program.

As a sample offering, the B&T website has published a trial court opinion in which a legal malpractice claim against a firm acting as counsel for Prince George's County, Maryland, brought by borrowers who were unhappy that filing statements were not properly done in the District of Columbia, was dismissed due to lack of privity and under the statute of limitations. Bank of New York v. Ronald Sheff, et al., CAL 02-21119 (Circuit Court for Prince George's County, Maryland).

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Proposed Amendments to Local Rules for Eastern District of Virginia

The D.C. Bar's website invites our attention to proposed amendments to the Eastern District of Virginia's local rules.

The proposed amendments can be viewed here.

One change is to Local Rule 7, which will require redaction of personal identifiers from pleadings:

C) Personal Identifiers: In compliance with the policy of the Judicial Conference of the United States, parties shall not include the following personal identifiers in any pleading or document filed with the Court, including exhibits thereto, unless otherwise ordered by the Court. (1) Social Security Numbers. If an individual’s social security number must be included, only the last four digits of that number should be used. (2) Names of Minor Children. If the involvement of a minor child must be mentioned, only the initials of that child should be used. (3) Dates of Birth. If an individual’s date of birth must be included in a pleading, only the year should be used. (4) Financial Account Numbers. If financial account numbers are relevant, only the last four digits of these numbers should be used. If it is necessary to include a personal identifier in a pleading or order, it shall be tendered for filing under seal in accord with Local Civil Rule 5. The responsibility for redacting these personal identifiers rests solely with counsel and the parties. The Clerk will not review each pleading for compliance with this Local Rule. Counsel and the parties are cautioned that failure to redact these personal identifiers may subject them to sanctions.

These are probably good rules to follow always, especially as courts are moving to electronic filing.