AC&K wins trial on behalf of Frederick Memorial Hospital
Following a three-week trial in the Circuit Court of Frederick County, Maryland, Partners, J. Michael Sloneker and Jonathan A. Cusson, obtained defense verdicts for three emergency department nurses and Frederick Memorial Hospital in the matter of Dineen v. FMH, et al. The Plaintiffs alleged that their child was injured as a result of a failure to diagnose HEELP syndrome timely and deliver the baby before he sustained hypoxic injury. The Plaintiffs claimed in excess of $11,000,000 in economic and non-economic damages. Plaintiffs maintained that Defendants should have sent the mother, who was 36 weeks pregnant, directly to the Labor & Delivery department. However, the triage nurse, emergency department physicians and a consulting obstetrician thought her complaints, which included epigastric pain, nausea, vomiting and diarrhea, were most likely gastrointestinal in nature. Therefore, she was admitted to the emergency department for evaluation. Later that morning, a nurse discovered that the baby's heart rate was lower than it had been previously. She alerted the emergency physician and a nurse from L&D. The baby was delivered 30 minutes later in cardiac arrest. The obstetrician who delivered the baby by emergency caesarean section found that the placenta had suddenly sheared off the uterine wall, depriving the baby of oxygen.
In defense of these claims, the Hospital and the nurses contended that the mother's signs and symptoms were more consistent with a gastrointestinal etiology than a pregnancy-related problem. Mr. Sloneker and Mr. Cusson successfully argued that there was no suggestion that her symptoms posed any danger to her unborn baby and it was reasonable to treat her in the emergency room for what was believed to be a medical problem and that her symptoms were not consistent with HEELP syndrome or any other obstetrical condition that would potentially harm the baby. The mother's blood pressure and other vital signs were normal, she was not in labor, her membranes were intact, she had no vaginal bleeding and was hemodynamically stable. Defense experts defended the actions and the judgments of the nurses in triaging the mother to the emergency department and evaluating her complaints in that area of the hospital.
Prior to trial, the trial judge granted a motion filed on behalf of the nurses and Hospital that precluded Plaintiffs from introducing evidence of past or future medical or life care expenses, ruling that those claims were barred by the statute of limitations as to the nurses and the Hospital.
After returning defense verdicts in favor of the nurses and the Hospital, the jury concluded that two of the physicians, represented by other counsel, were negligent and awarded damages to Plaintiffs of $3.9 million.
Anderson, Coe & King Obtains Dismissal of Amended Complaint and Certificate of Qualified Expert on Behalf of Physicians and Hospital in Medical Malpractice Lawsuit.
Representing a major Baltimore Hospital in a wrongful death claim in the Circuit Court of Baltimore City, Partner J. Michael Sloneker and Associates Emily J. Hammann and Ryan S. Perlin successfully challenged Plaintiffs' attempts to file an Amended Complaint and Certificate of Qualified Expert that sought to add new claims against additional physicians in a medical malpractice lawsuit filed on behalf of a patient's family. After the statutory deadline for filing certificates of qualified experts and after the deadline for filing an amended complaint set by the Scheduling Order, Plaintiffs filed an Amended Complaint and Certificate of Qualified Expert seeking to add new claims against two additional physicians who treated the patient. Plaintiffs explained that their original certifying expert witness misread the medical records, inadvertently criticized the care of the admitting surgeon, and intended instead to criticize the care of other previously unnamed physicians. In addition to their Amended Complaint and Certificate, Plaintiffs filed a new Certificate signed by a new expert witness, and moving papers seeking extensions of time for the belated filings. Plaintiffs argued that the error should qualify as “good cause” under the Health Care Malpractice Claims Act and, thus, they should receive an extension of time to amend their expert's Certificate and file their new Certificate.
Mr. Sloneker, Ms. Hammann, and Mr. Perlin opposed Plaintiffs' Motions and filed Motions to Strike the Amended Complaint and all additional and amended Certificates, arguing that the Plaintiffs' expert's error in misnaming the physicians does not rise to “good cause” under either the letter or spirit of the Health Care Malpractice Claims Act.
The Circuit Court for Baltimore City agreed and struck Plaintiff's Amended Complaint and Certificates as to all new claims against additional physicians. After reviewing Defendants' moving papers and entertaining oral argument, the Court held that “Plaintiffs have failed to show good cause, under Rule or Statute, for extending time to file new [Certificates] and amend the Complaint…”
Partners James A. Rothschild, J. Michael Sloneker, and Gregory VanGeison listed in 2009 Super Lawyers
Anderson, Coe & King, LLP is proud to announce that Partners James A. Rothschild and J. Michael Sloneker are listed in the 2009 issue of Maryland Super Lawyers ® magazine and that Partner Gregory VanGeison and Mr. Rothschild are listed in the 2009 Super Lawyers , Corporate Counsel Edition.
Maryland Super Lawyers magazine identifies the top 5% of attorneys in the state, as chosen by their peers and through the independent research of Law & Politics magazine. The list of Super Lawyers , which is also published in regional magazines nationwide, designates the best lawyers in each of 60 different practice areas. Mr. Rothschild was recognized in the practice of Civil Litigation Defense, while Mr. Sloneker was listed in the category of Professional Liability Defense.
The Corporate Counsel Edition recognizes lawyers from business-related practice areas based on a variety of factors, including peer recognition and professional achievements, and is distributed to corporate counsel and CEO's of America 's top publicly and privately held companies. Mr. Rothschild and Mr. Vangeison were listed in the areas of Civil Litigation Defense and Insurance Coverage, respectively.
With more than one third of its partnership among those listed in the Super Lawyers publications, Anderson, Coe & King, LLP continues its tradition of leadership, innovation and skill at the bar.
James A. Rothschild and Ryan K. Bautz obtained summary judgment for Washington, D.C. based electrical contractor Central Armature Works, Inc. in a consolidated lawsuit initiated by four insurance companies seeking in excess of $3 million in damages caused by a November 24, 2005, fire at Zachary's Jewelers on Main Street, Annapolis. The consolidated case, captioned, Netherlands Insurance Company v. Constellation Energy Group, Case Number 02-C-07-122993, was pending in the Circuit Court for Anne Arundel County.
Plaintiffs alleged that the fire started inside a junction box that Central Armature Works, Inc. had installed on the side of the Zachary's Jewelers building in 1995 in connection with the City of Annapolis 's renovation of Main Street . As part of that renovation, the overhead utility system that had served Main Street businesses with power for years was abandoned, and a new, more reliable, underground electrical service was constructed to serve Main Street . The new electrical service connection supplying power to Zachary's from underground was made by BG&E inside the junction box installed by Central Armature Works, Inc.
Plaintiffs alleged that a plastic bushing that protected the building service conductors from rubbing against the edge of a metal conduit pipe inside the junction box was not properly installed. Plaintiffs' theorized that the plastic bushing slipped off the metal conduit over time and that street vibrations caused the insulation on the building service conductors to break down leading to an electrical arc that ignited the building.
Records wisely maintained by Central Armature Works, Inc. documented that its employees installed the junction box, and completed their work at Zachary's, on July 7, 1995. The same day, BG&E made the new electrical service connection and power was restored to the property. As the fire occurred more than a decade after the junction box was first available for its intended use, Mr. Rothschild and Mr. Bautz argued that Maryland 's statute of repose shielded Central Armature Works, Inc. from liability.
The statute of repose, which is codified at Section 5-108 of the Courts & Judicial Proceedings Article, protects contractors, architects, and engineers from being hauled into court long after their work is completed by setting an absolute time limit after which injuries caused by an allegedly defective improvement to real property will not give rise to a legal cause of action. The ten-year time limit applicable to the work of contractors, architects, and engineers begins to run on “the date the entire improvement first became available for its intended use.” Plaintiffs argued that the “entire improvement” to Zachary's was not available for use, and that the time limit under the statute of repose did not begin to run until the entire Annapolis Main Street reconstruction project was finished. Judge Pamela L. North disagreed, focusing properly on the improvement made to the Zachary's building, and not the entire Main Street reconstruction project. Following oral argument, Judge North issued a memorandum opinion and order granting summary judgment in favor of Central Armature Works, Inc.
The victory was reported in the December 29, 2008 edition of the Daily Record. The story may be viewed online at: www.mddailyrecord.com/article.cfm?category=2&page=2&id=151191&type=Daily
Anderson, Coe & King Wins Summary Judgment for Members of Board of Education in Civil Rights Lawsuit.
Gregory L. VanGeison and Cullen B. Casey, obtained summary judgment on behalf of two Kent County, Maryland, Board of Education members in a civil rights lawsuit filed by an elementary teacher. Baker v. Kent Co. Bd. of Educ., No. WMN-07-0824. (D.Md. 2008).
The lawsuit was filed after the teacher was implicated in a cheating scandal involving the 2005 Maryland School Assessment tests. After an investigation into the allegations of cheating, the teacher was initially recommended for termination by the superintendent and later reassigned and placed on a second class teaching certificate. As a result of the investigation and eventual discipline, the teacher sued the Kent County Board of Education, individual members of the Board of Education, the school superintendent and an assistant superintendent.
The teacher alleged that the individual board members violated her constitutional right to due process and were liable for intentional inflicted emotional distress. Mr. VanGeison and Mr. Casey asked that the Federal Court grant the board members summary judgment and dismiss the case in its entirety. Among other arguments, Mr. VanGeison and Mr. Casey asserted that the teacher had not presented any evidence that she was ever deprived of any constitutional rights as she was never terminated, never lost any pay and remained an employee of the school system. The teacher was also offered the opportunity to appeal the eventual discipline but withdrew her appeal without explanation.
The U.S. District Court for the District of Maryland agreed and granted summary judgment in favor of all defendants. After a review of all the evidence and legal arguments, the Court stated that it could not “find that [the teacher's] due process rights were infringed in any way.” Examining the intentional infliction of emotional distress claim, the Court determined that the teacher failed to produce sufficient evidence that any defendants' actions were “extreme and outrageous” and that her claims failed as a matter of law.
Jonathan A. Cusson obtains defense verdict on behalf of the Board of Education of Carroll County.
Following a three-day jury trial in the Circuit Court of Carroll County, Maryland, Jon Cusson obtained a verdict in favor of the Board of Education. Plaintiff, a high school junior varsity lacrosse player, claimed that the Board was negligent because her coaches failed to prevent two of her teammates from throwing a ball in a school hallway. One of her teammates failed to catch the ball, which struck Plaintiff in the eye causing her to become legally blind in that eye.
At trial, Plaintiff and her expert witnesses claimed that it was negligent for the coaching staff to leave junior varsity women's lacrosse players unsupervised while the coaches assessed the condition of the field for play as a result of inclement weather. Plaintiff also maintained that the Carroll County Board of Education was obligated to have a policy that required supervision of student-athletes under these circumstances. Mr. Cusson presented evidence of the steps the Board takes to promote safety and successfully argued that this case did not involve any unreasonable act by the coaching staff; rather, this was simply an unfortunate accident that the Board, through its coaching staff, was not obligated to anticipate or prevent. In closing argument, Plaintiff's counsel asked the jury to award his client in excess of $150,000. The jury determined that the Board was not negligent and awarded no damages.
Jonathan A. Cusson named partner at Anderson, Coe & King
Anderson, Coe & King, LLP, is pleased to announce that Jonathan A. Cusson has been elected as a partner of the firm. Mr. Cusson litigates on behalf of a wide variety of clients in the state and federal courts of Maryland. His practice is focused on the defense of medical and dental malpractice cases, cases against boards of education and claims involving construction defects, the federal False Claims Act and other tort actions. He has successfully defended cases involving allegations of wrongful death, serious brain damage, and other significant injuries. Mr. Cusson also represents doctors, dentists and other health care providers before licensing boards
Prior to joining Anderson, Coe & King, Mr. Cusson clerked for the Honorable Arrie W. Davis of the Maryland Court of Special Appeals. Mr. Cusson graduated from the University of Maryland School of Law, where he served as Associate Editor of the Business Lawyer. He obtained his undergraduate degree from the University of Pennsylvania and was named as an Academic All American as a member of the school's lacrosse team.
Cullen B. Casey joins Anderson, Coe & King as Associate
Anderson, Coe & King is pleased to welcome Cullen B. Casey as an Associate of the firm. Prior to joining Anderson, Coe & King, Mr. Casey was a staff attorney for the National School Boards Association in Alexandria, Virginia and an Associate with the Thrun Law Firm in East Lansing, Michigan where he represented public schools and community colleges. Mr. Casey will continue to focus his practice in the areas of school law, employment/labor law and general civil litigation. Mr. Casey holds a B.A. from Albion College and received his J.D. from George Mason University. He is admitted to practice in both Maryland and Michigan as well as the U.S. District Court for the Eastern District of Michigan, and the U.S. District Court for the Western District of Michigan.
Lynne B. Malone and M. Bradley Hallwig win defense verdict on behalf of client hospital in Marx v. Nagel, M.D. et al
Following a two week jury trial, Lynne B. Malone and M. Bradley Hallwig won a defense verdict in the Circuit Court for Frederick County, Maryland, for their client hospital in Marx v. Nagel, M.D. et al. The jury concluded there had been no negligence by any hospital personnel.
The case arose following the death in the hospital of a 59 year old surgical patient some five days after a successful emergency appendectomy and bowel resection. The patient died from a massive pulmonary embolism. Plaintiff alleged that the death could have been prevented had the surgeon and hospital personnel communicated properly and instituted and maintained proper prophylaxis against deep vein thrombosis. The plaintiff asked the jury for nearly two million dollars in damages.
Although plaintiff called four expert witnesses to attack the defendants, the case was unique in that the co-defendant had also attacked the hospital personnel in his deposition given two years before trial, claiming that hospital personnel had failed to follow his standard pre-operative practices. The co-defendant, however, was forced to recant his testimony when Ms. Malone and Mr. Hallwig convinced the court to let them use copies of 28 de-identified hospital charts of co-defendant's other, similar patients to show that hospital personnel had at all times followed the surgeon's standard pre-operative practices in those cases, as well as the one at issue in the trial. Confronted with this evidence, the co-defendant changed his prior sworn testimony one week before trial and agreed that hospital personnel had acted properly throughout the relevant time period. After four hours of deliberation, the jury agreed that the hospital personnel acted within the standard of care and that the hospital was not liable.
Anderson, Coe & King Wins Summary Judgment on Behalf of Hospital Against Insurer.
Partner, Gregory L. VanGeison, obtained the entry of summary judgment on behalf of a regional hospital against its insurer on the issue of whether a “known loss” exclusion should be applied under a subjective or an objective standard. The exclusion applied:
to any liability for a written demand for damages , money or services or service of suit, or a specific circumstance involving a particular person or organization regarding a medical incident, occurrence or offense whose circumstances were known to the insured or any insurer prior to the first date of continuous coverage provided by the Company for such insured ;
The insurer argued that the exclusion should apply where a reasonable insured with the hospital's knowledge would or should have known that the plaintiff's claim existed or was forthcoming at the time that the hospital obtained the insurance. The hospital argued that the exclusion applied only where the hospital actually knew about the plaintiff's claim or its likelihood at the time that it took out the policy of insurance.
In Freestate Healthcare Insurance Company, Ltd. v. Chester River Health System, Inc. , the United States District Court for the District of Maryland, Civil No. CCB-06-2951, agreed with the hospital, and entered summary judgment in its favor. On September 14, 2004, the plaintiff in the underlying claim, Charlotte Smith, was admitted to the hospital complaining of a severe headache and trouble swallowing. At approximately 6:30 a.m. on the next morning, she was provided with Dilaudid. She was discovered at 7:30 a.m. in respiratory arrest. Despite resuscitation efforts, she remained in a coma. She was discharged from the hospital to a nursing facility on October 19, 2004, where she remained on a ventilator in a comatose state until her death on November 3, 2006. The hospital obtained its first policy of insurance from Freestate July 1, 2005. A lawsuit was filed on behalf of Ms. Smith May 9, 2006. There was no evidence that the hospital had actual knowledge of Ms. Smith's claim or that such a claim was likely before Freestate issued its policy to the hospital.
Anderson,
Coe & King Obtains Landmark Decision Shielding Schools and Youth Programs
From Suit
Partner J. Michael Sloneker and Associate Jason P. Beaulieu recently
obtained a landmark decision from Maryland's highest court shielding schools
and youth programs from suits arising out of personal injuries.
In American Power Lifting Ass'n. v. Cotillo , 401 Md. 658, 934 A.2d 27 (Filed Oct. 16, 2007), the Maryland Court of Appeals held that a voluntary participant in an athletic event assumes all risks that are incidental to the sport, including the risk that someone else may be negligent. For the first time in any reported Maryland decision, the Court addressed the applicability of assumption of risk to conduct of coaches or other participants that poses an enhanced risk to participants. Mere negligence by a coach or other participants will never overcome the defense of assumption of risk. The exception are those rare cases where the coach or other participant has acted intentionally or recklessly to harm the participant.
The case, brought in the Circuit Court for Calvert County, involved a 40-year old weightlifter who was injured during a weekend powerlifting competition in a high school gym. The competition was sponsored by the American Powerlifting Association (APA). The lifter, Christopher Cotillo, was an experienced competitor and held numerous local and national bench press records. During his third and final bench press attempt, in which he was attempting to lift a Maryland record 530 lbs., the bar quickly fell backwards, striking his face, just before the spotters grabbed the weight and racked it. Cotillo suffered a broken jaw and lost four teeth.
Cotillo sued the APA, the Board of Education, and the individual who secured and trained the spotters for the meet. Eventually, all defendants filed motions for summary judgment on several grounds, including assumption of risk. The trial court agreed with the defendants and granted the dispositive motions, holding that Cotillo assumed the risk as a matter of law.
Cotillo appealed the trial court's ruling to the Court of Special Appeals, which held that the trial court erred in entering summary judgment. The Court of Special Appeals concluded that Cotillo had not assumed the risk that the spotters would be negligently instructed or trained, holding that allegedly negligent instructions provided to the spotters created an enhanced risk to Cotillo that that he did not voluntarily assume. See Cotillo v. Duncan , et al., 172 Md.App. 29, 912 A.2d 72 (2006); cert. granted , 398 Md. 313, 920 A.2d 1058 (Apr 11, 2007).
Mr. Sloneker and Mr. Beaulieu asked the Court of Appeals to review the case, arguing that the decision in the Court of Special Appeals greatly undermined the defense of assumption of risk in the context of voluntary athletic events and would jeopardize school and recreation league programs throughout the state. The Court of Appeals agreed to take the case, reversed the Court of Special Appeals, and reinstated the summary judgments entered in favor of the defendants.
malpractice lawsuits.
James A. Rothschild named
as one of Maryland's Legal Elite
James A. Rothschild, a partner in the firm, was selected as one of Maryland's
“Legal Elite” by Baltimore SmartCEO Magazine. Baltimore SmartCEO
Magazine limited its selection of Maryland's “Legal Elite" to 60
attorneys nominated by CEOs, business and industry leaders, and legal professionals.
