Metrobus Drivecam Systems

I've previously remarked that litigation arising from Metrobus accidents is now starting to feature video from drivecam systems on the buses.  WTOP has recently posted more detail about Metrobus drivecam systems, including sample videos that they have obtained from Metro.  The video from the drivecam system is clearly something that has to be pursued in discovery in any collision involving a bus, and further, the existence of such evidence should be pursued in any litigation involving a commercial vehicle.  (Hat tip to Christopher Mitchell.)

The restyled Federal Rules of Evidence became effective on Dec. 1

The Federal Rules of Evidence were restyled, and the new version became effective on December 1, 2011.  Here is a link to the restyled version of the Rules, which is defnitely worth reading.   As a sample, the restyled version of Fed. R. Evid. 702 is as follows:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the
form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and
methods; and

(d) the expert has reliably applied the principles and
methods to the facts of the case.

A copy of the Report of the Advisory Committee can be found here, and discusses in some detail the contributors to the effort to make the Rules more easily understandable.  Among other things, Bryan Garner's legal style guide was used in the rewrite of the Rules.

As reported by, there are also amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal Procedure which also became effective on Dec. 1.  

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.



Cross examination of illegal aliens

Illegal aliens or undocumented workers have become a constant presence in civil litigation.  They may be plaintiffs, defendants, your witnesses, or the opponent's witnesses.  In workers compensation matters, they may be claimants, co-workers and sometimes employers.  Where an illegal alien is concerned, there may be violations of immigration or other laws that offer opportunities for cross examination or even legal defenses.   To develop the evidence to raise such issues, it may not be enough to take discovery from the witness or party; it may be necessary to also take discovery from his or her employer.  That requires prior planning and a determination to contest objections.  It is almost a certainty that there will be resistance to disclosure of facts about a witness's immigration status.  That may result in discovery disputes and rulings from the court or agency that could be the basis of meritorious appellate issues.  The assertion of 5th Amendment privileges may also be a basis for proper adverse inferences to be drawn in a civil matter.

Any lawyer who is involved in litigation has to be prepared to deal with immigration-related issues from either side.   It is not an issue "owned" by the defense bar or the plaintiff's bar.

As a threshold issue, the advocate has to consider the venue and the likelihood of how such a cross examination will be received.   Illegal immigration isn't a new phenomenon and there will  be a local body of law to be consulted.  See this recent Fairfax, Va. court ruling, for example.  Further, an attempt to cross examine on such issues could backfire.  There is some moral ambivalence about illegal immigration.  On the other hand, as Robert Samuelson's column in the Washington Post points out, the magnitude of the problem of illegal immigration, in terms of sheer numbers, now militates against the impulse of a nation of immigrants to simply overlook the issue.

There is a pervasive criminal element that sells fake documentation to illegal immigrants so that they can obtain work.  Evidence of the use of such fake documentation would be useful information to uncover for purposes of cross examination.  Every year the Social Security Administration sends out "no match" letters to employers concerning millions of workers who are using invalid social security numbers.   Discovery should focus not only on the worker, but on the worker's employer, who might have copies of the false documentation used to obtain the job and a copy of any "no match" letter received from the SSA with regard to this particular employee.

More on this later.

Landlord Wins Eviction Suit By Rummaging Through Tenant's Trash; D.C. Court of Appeals Affirms Dismissal Of Follow-On Privacy Suit By Tenant

In Danai v. Canal Square Associates, there was a dispute between the landlord and the tenant, a travel agency, concerning whether the tenant failed to renew its multi-year lease.  During a bench trial, the landlord impeached the President of the travel agency, who had testified concerning her understanding of the renewal provision in the lease, by questioning her about a draft letter to the landlord which the landlord had found in the tenant's trash.  The trial court entered judgment for the landlord, giving it possession of the premises.

The tenant then brought suit against the landlord for invasion of privacy and intentional infliction of emotional distress.   It was undisputed that the tenants' trash was taken out from the leased premises and stored in a "trash room" in the building.  The letter had been written and then torn up on March 30, and on April 1 a Vice President of the landlord went through the tenant's trash in the trash room and recovered the letter.  The letter was used at trial to prove that the tenant was aware of its failure to give notice to the landlord of its intent to renew the lease.

The trial court granted summary judgment to the landlord, finding that the tenant did not have a reasonable expectation of privacy in its trash, and the D.C. Court of Appeals affirmed.

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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).

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Mold Detection Canines

I first heard about this today at my dentist's office, as my dentist and his assistant were joking about mold sniffing dogs and how mold is going to be the next asbestos. So I googled mold sniffing dogs and got this and this. Also this profile of mold dog. There is even a website called, which can help you find a mold dog and which has a streaming video available showing a mold dog in action.

D.C. Court of Appeals Affirms Use of Missing Witness Instruction

In McPherson-Corder v. Chinkhota, the D.C. Court of Appeals affirmed the trial court's use of a missing witness instruction in a medical malpractice case, while cautioning that its use is only allowable when stringent conditions have been met.

In this case, a 14 year old boy slipped and fell on ice, doing a split in the process, and began to have pain in his groin area afterwards. His mother took him to the defendant, his pediatrician, for an examination, and the defendant found no serious injury. The next day, the pain returned in greater intensity, and the mother called the pediatrician's office, and spoke to a different physician who was on call, who advised her to take her son to the emergency room. Not realizing the urgency of the situation, the mother and son stopped at the mall to do some shopping on the way. At the emergency room, it was discovered that the son had suffered testicular tortion, that too much time had passed to save the testicle, and it had to be surgically removed.

Plaintiffs alleged that the physician was negligent in failing to refer her son to a urologist, and in failing to advise them of the risk and urgency of testicular tortion. The jury found for the plaintiffs, awarding $200,000.

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