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April 2011
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Maryland Court of Appeals decides that Rule 5-404(b) applies only in criminal matters, not in civil matters

In Ruffin Hotel Corp. of Md., Inc. v. Gasper, ___ A.3d ___ (Md. March 21, 2011), which was a retaliatory discharge case, the Maryland Court of Appeals held that it was error to instruct the jury that that plaintiff is required to prove that her opposition to the unlawful harassing conduct was a "determining" factor in the decision to terminate her employment; rather, it was only necessary for it to be a "motivating" factor in the decision.  The Court also held that a negligent hiring and retention claim was not preempted by federal law, by Maryland anti-discrimination statutes, or by the Maryland Workers Compensation Act.

Last but not least, the Court of Appeals held that Maryland Rule 5-404(b) is applicable only in criminal matters, not in a civil matter like this.  Therefore, on retrial, the trial court need only apply Maryland Rule 5-403 on the issue whether her immediate supervisor's prior history of sexual harassment is admissible:

Because the foundational requirements of FRE 404(b) are so vastly different from the foundational requirements of Md. Rule 5-404(b), we are persuaded that Md. Rule 5-404(b) should continue to be applicable only to evidence offered by the State against the defendant in a criminal case. In civil cases, whether the evidence at issue is offered by a plaintiff or by a defendant, the admissibility of relevant evidence that presents the "possibility of [unfair] prejudice is to be dealt with pursuant to [Md.] Rule [5-] 403."

From the defendant's point of view, the net result of these rulings is to lower the evidentiary standard that the plaintiff must meet, while at the same time simplifying and easing the evidentiary rules that will govern the admission of other instances of sexual harassment.



Absolute privilege in Maryland extended to attorney's verbal statements to press about a newly filed class action

In Norman v. Borison, ___ A.3d ___ (Md. April 22, 2011), the Maryland Court of Appeals held that lawyers who published copies of their state complaint to the press before it was filed in court, and made oral statements to the press about the suit, then republished filed versions of their federal complaints on the internet, were protected by an absolute privilege.  However, the Court's holding on this contained a warning that lawyers who choose to try their cases in the press may do so at some peril:

We are not prepared to say that plaintiffs are prohibited from promoting preemptively their class action suit, before they have been certified as such, or that they must avoid verbal communications to the press in doing so — provided framing the suit as a "class action" status is not shown to have been a subterfuge for funneling defamatory statements to the press. Such public promotion, under the latter proviso, is not part of the proper prosecution of most tort claims. Indeed, but for the fact that the mortgage rescue scam suit was striving to become a class action, our conclusion might have been different. The Kennedy adage retains vitality — lawyers who try their cases in the media do so at some peril. See Kennedy, 229 Md. at 99, 182 A.2d at 58.

Maryland Court of Appeals explains how to analyze possible prejudice from error in civil jury instructions

In Barksdale v. Wilkowsky, ___ A.3d ____ (Md. May 23, 2011), the Maryland Court of Appeals reversed a defense verdict in a Baltimore City lead paint poisoning case, due to prejudicial error in the jury instructions.  In doing so, the Court reviewed Maryland law as to when an error in jury instructions is reversible error, and when it is harmless error. 

In the lead paint poisoning trial, the trial court gave an instruction regarding the joint responsibilities of landlords and tenants in keeping the property in good condition. This instruction was essentially the reading of a provision in the Baltimore City Housing Code.  The Court found that this instruction was error, because neither the plaintiff's contributory negligence nor negligence of her family members were at issue in the case.  The Court of Appeals found that this instruction was prejudicial, because it may have permitted the jury to speculate, or may have precluded a finding of liability where it was otherwise appropriate.

The Court of Appeals found that the jury instruction as to the occupant's duty to keep the dwelling in a clean and sanitary provision had no relevance to the issues at trial.  The plaintiff was a child when she lived in the dwelling, and whether or not her grandmother kept the house clean was irrelevant.  Under Maryland law, negligent acts of a parent cannot be imputed to a child, and such negligent acts that merely contribute to an injury do not necessarily rise to the level of a superseding cause.

Although there are a limited number of circumstances where prejudice is presumed, ordinarily a party in a civil case complaining of an erroneous jury instruction must show prejudice.  It is not enough, in those circumstances, to show that prejudice was possible; rather, the appellant must show that prejudice was probable.  Erroneous jury instructions which are misleading, distracting, or which permit the jury to speculate as to improper issues which are dispositive, are prejudicial.  The appellant can meet its burden of showing prejudice by showing the nature of the erroneous instruction and its relation to the issues in the case.  Based on that, the reviewing court can weigh the "materiality of the error and the potential that it poisoned the jury deliberations."

The Court of Appeals further stated that consideration of the following four factors, borrowed from a California case, are "helpful":

(1) the degree of conflict in the evidence on critical issues; (2) whether respondent's argument to the jury may have contributed to the instruction's misleading effect; (3) whether the jury requested a rereading of the erroneous instruction or of related evidence; . . . and [4] the effect of other instructions in remedying the error.

 In the case at bar, the Court of Appeals found that the error touched the heart of the litigation, and that it could not be sure that the erroneous instructions were "cured" by the correct instructions when both were presented to the jury as equals.  The Court found that the appellant carried her burden of showing prejudice.

This decision is now one of the crucial authorities to consider when analyzing the strength of an appeal based on an erroneous civil jury instruction.




Intra-jury pressure during deliberations with no outside influence is not enough to impeach a verdict

In Scott v. Merck & Co., No.  09-3271 (D. Md. Feb. 3, 2011), the Court denied the defense request for the Court to question a juror based on a post-verdict communication made to defendant's counsel. 

About four days after a jury returned a plaintiff's verdict in this case, one of the jurors called a representative of the defendant and left a voice mail asking for a return call.  Defense counsel returned the call for his client, and the juror stated that she felt that she had been pressured during jury deliberations to return a verdict for the plaintiff.  This communication was then reported to the Court, which requested briefing on how to proceed.

The Court ultimately decided not to question the juror.  As a threshold matter, the Court reminded counsel that under the Local Rules, no attorney or party can question a juror without permission of the Court.  Under Local Rule 107.16, no attorney or party may interview or question a juror with respect to that juror's jury service without permission from the presiding judge.  The proper procedure would have been to contact the Court and seek permission to contact the juror, before returning the telephone call.

Upon consideration of the facts as disclosed by defendant's counsel, the Court found it that it would be inappropriate the question the juror, because only intra-jury pressuring was involved.

It is well settled that a verdict may not be impeached by a juror’s testimony regarding “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind.”  Fed. R. Evid. 606(b).  A verdict may be impeached, however, by a juror’s testimony as to “extraneous prejudicial information,” “outside influence,” or “a mistake in entering the verdict onto the verdict form.”

Here, the trial had ended before a holiday weekend, and there was a Baltimore Ravens playoff game that weekend.  The jury wanted to finish deliberations as quickly as possible.  The juror who came forward had said that the jury foreman had refused to call for certain exhibits, and that her vote that the plaintiff had been terminated for cause by the defendant was ignored by the rest of the jury.  The Court found that these factors would not be competent to impeach the jury's verdict, since there was no external influence.  The Court also noted that the jury had deliberated for three hours, and that when polled after the verdict, the complaining juror said that the verdict was her individual verdict.