HB Litigation Conferences Lead Litigation 2013

1. November 14-15, 2013

3. J. Marks Moore III
Semmes, Bowen & Semmes
25 S. Charles Street, Ste 1400
Baltimore, Maryland 21202
mmoore@semmes.com
410-576-4722
3

4. I.
II.
III.
IV.
V.
VI.
Mandatory Motions
Permissive Motions
General Motions
Motions for Summary Judgment
Discovery Motions
Motions in Limine
4

5. A.
B.
C.
D.
Personal Jurisdiction
Improper Venue
Insufficiency of Process
Insufficiency of Service of Process
5

6. A.
B.
C.
D.
E.
Subject Matter Jurisdiction
Failure to State Claim Upon Which Relief Can
Be Granted
Failure to Join Party
Discharge in Bankruptcy
Governmental Immunity
6

7. A.
Motion to Dismiss (Md. Rule 2-311)
1. On the Face of the Complaint (e.g., statute of
limitations)
2. Introduction of Facts Makes it an MSJ
B.
C.
Motion for More Definite Statement (Md.
Rule 2-322(d)) (e.g., multiple
properties/owners all during same time
period)
Motion to Strike (Md. Rule 2-322(e))
7

8. A.
B.
C.
D.
E.
F.
Timing
Motion
Response
Defense Not Available
Contradictory Affidavit or
Statement
Bases
8

9. 

Scheduling Order (3 months)
a motion for summary judgment may be
made at any time – Benway v. MPA, 191
Md.App. 22, 989 A.2d 1239
(2010), citingRodriguez v. Clarke, 400 Md.
39, 74 n.21, 926 A.2d 736, 757 n.21, recon.
denied (2007)
9

10. Rule 2-501 (a)
(a) Motion.- Any party may make a motion for
summary judgment on all or part of an action
on the ground that there is no genuine dispute
as to any material fact and that the party is
entitled to judgment as a matter of law. The
motion shall be supported by affidavit if it is
(1) filed before the day on which the adverse
party's initial pleading or motion is filed or (2)
based on facts not contained in the record.
10

11. 
movant must support the motion with
“facts that would be admissible in
evidence” – Davis v. Goodman, 117 Md.
App. 378, 392-93, 700 A.2d 798, 804-05
(1997)
Rule 2-501 (c)
(c) Form of Affidavit.- An affidavit supporting
or opposing a motion for summary judgment
shall be made upon personal knowledge, shall
set forth such facts as would be admissible in
evidence, and shall show affirmatively that the
affiant is competent to testify to the matters
stated in the affidavit.
11

12. Rule 2-501 (b)
(b) Response.- A response to a written motion for
summary judgment shall be in writing and shall (1)
identify with particularity each material fact as to which it
is contended that there is a genuine dispute and (2) as to
each such fact, identify and attach the relevant portion of
the specific document, discovery response, transcript of
testimony (by page and line), or other statement under
oath that demonstrates the dispute. A response
asserting the existence of a material fact or controverting
any fact contained in the record shall be supported by an
affidavit or other written statement under oath.
12

13. 
non-movant must support the opposition
with “facts which would be admissible in
evidence” – Chantel Assoc. v. Mount Vernon
Fire Ins. Co., 338 Md. 131, 149-50, 656
A.2d 779, 788 (1995), citingBeatty v.
Trailmaster, 330 Md. 726, 736, 625 A.2d
1005, 1011 (1993)
Rule 2-501 (c)
(c) Form of Affidavit.- An affidavit supporting or
opposing a motion for summary judgment shall
be made upon personal knowledge, shall set
forth such facts as would be admissible in
evidence, and shall show affirmatively that the
affiant is competent to testify to the matters
stated in the affidavit.
13

14. Rule 2-501 (d)
(d) Affidavit of Defense Not Available.- If the court
is satisfied from the affidavit of a party opposing a
motion for summary judgment that the facts
essential to justify the opposition cannot be set
forth for reasons stated in the affidavit, the court
may deny the motion or may order a continuance to
permit affidavits to be obtained or discovery to be
conducted or may enter any other order that justice
requires.
14

15. Rule 2-501 (e)
(e)
Contradictory Affidavit or Statement.-
(1) A party may file a motion to strike an affidavit or
other statement under oath to the extent that it
contradicts any prior sworn statement of the person
making the affidavit or statement. . . .
(2) If the court finds that the affidavit or other statement
under oath materially contradicts the prior sworn
statement, the court shall strike the contradictory part
[unless certain circumstances exist].
15

16. 1.
2.
3.
4.
5.
6.
7.
8.
Condition Precedent
Immunity
Other Affirmative Defenses
Wrong Property/Wrong Defendant
Member of LLC/Officer or Director of
Corporation
Causation
Damages
Consumer Protection Act
16

17.  Maryland
Tort Claims Act
 Local Government Tort
Claims Act (plaintiff must plead
compliance – Hansen v. City of
Laurel, 420 Md. 670, 684, 25
A.3d 122, 131 (2011))
17

18.  Governmental (governmental v.
proprietary function – Mayor & City Council v.
State ex rel. Blueford, 173 Md. 267, 195 A.
571 (1937))
 Charitable (judicially created as to
entity – Abramson v. Reiss, 334 Md. 193, 638
A.2d 743 (1994) – statutorily created as to
officers, employees, directors, etc. – Md.
Code Ann., Cts& Jud. Proc. 5-406)
18

19. 



Accord and Satisfaction
(settlement, release, payment)
Estoppel
Issue Preclusion
Res Judicata
19

20. 20

21. 

although member of LLC generally not liable for torts
committed by, or contractual obligations acquired by, the
LLC, member can be personally liable if he satisfies some
part of the definition of “owner” under Balt. City Hous.
Code (“controls the… title to any dwelling or dwelling
unit…”) – Allen v. Dackman, 413 Md. 132, 145-46, 991
A.2d 1216, 1223-30 (2010)
president of corporation not liable for torts/acts of
corporation, because he did not meet definition of
“operator” under Balt. City Hous. Code (did not have
“charge, care or control…”) – Toliver v. Waicker, 210 Md.
App. 52, 64-70, 62 A.3d 200, 207 -11, certdenied, 432
Md. 213, 68 A.3d 287 (2013)
21

22.  Plaintiff’s
-
expert
medical/source
Md. Rule 5-702
Frye-Reed
Framework
- Brown v. Dermer
Bartholomee v. Casey and Johnson
-
v. Rowhouses, Inc.
Davis v. Goodman
Dow v. L&R Properties, Inc.
22

23. Testimony By Experts
Expert testimony may be admitted . . . if the court
determines that the testimony will assist the trier
of fact to understand the evidence or to determine
a fact at issue. In making that determination, the
court shall determine (1) whether the witness is
qualified as an expert by
knowledge, skill, experience, training, or
education, (2) the appropriateness of the expert
testimony on the particular subject, and (3)
whether a sufficient factual basis exists to support
the expert testimony.
23

24. 
two distinct sub-factors
- expert must have an adequate supply of data
- expert must employ a reliable
methodology in analyzing that data
- CSX Transp., Inc. v. Miller, 159 Md. App.
123, 189, 858 A.2d 1025, 1063 (2004), cert.
granted and then dismissed, 387 Md. 351, 875
A.2d 702 (2005), citing Wood v. Toyota Motor
Corp., 134 Md. App. 512, 521-27, 760 A.2d
315, 321-23, cert. denied, 362 Md. 189, 763
A.2d 735
(2000)
24

25. 


Frye v. United States, 293 F.1013 (D.C. Cir.
1923), Reed v. State, 283 Md. 374, 391 A.2d 364
(1978)
basis of scientific expert’s opinion must be shown
to be generally accepted as reliable within the
expert’s particular scientific field – Blackwell v.
Wyeth, 408 Md. 575, 588, 971 A.2d 235, 243
(2009)
Frye-Reed analysis required only when proposed
expert testimony involves a “novel scientific
method” – has to be some assurance that the novel
method has gained acceptance within the relevant
scientific community – Dixon v. Ford Motor
Co., 433 Md. 137, 149-50, 70 A.3d 328,335
(2013)
25

26. To make out a prima facie case in a
negligence action, plaintiff must show
violation of a statute/ordinance [ 703(a)(3)
of the Baltimore City Housing Code – no
“flaking, loose or peeling paint or paper”]
designed to protect the plaintiff
Evidence of flaking, loose or peeling paint
gets case to jury

27. Defendant landlord’s conduct must
be a “substantial factor” in causing the
injury
27

28. Mere fact that most old houses in
Baltimore have lead-based paint does
not mean that a particular old
Baltimore house contains lead-based
paint
28

29. SJ reversed -record contains circumstantial
evidence from which trier of fact could infer
presence of lead-based paint
MD’s Lead Act does not create evidentiary
presumption that pre-1950 rental homes contain
lead-based paint (citing Davis)
Circumstantial evidence may support a
determination of negligence if it amounts to a
reasonable likelihood or probability rather than a
possibility
29

30. 



circumstantial evidence insufficient to support
expert’s opinion that defendant’s house was
source of lead exposure – Taylor v. Fishkind, 207
Md. App. 121, 51 A.3d 743 (2012), cert.
denied, 431 Md. 221, 64 A.3d 497 (2013)
pediatrician not qualified to offer expert opinion –
City Homes, Inc. v. Hazelwood, 210 Md. App.
615, 63 A.3d 713, cert. denied, 432 Md. 468, 69
A.3d 476 (2013)
expert testimony lacked factual basis - expert
testimony not required to prove source causation –
circumstantial evidence sufficient - Ross v. Hous.
Auth. of Balt. City, 430 Md. 648, 63 A.3d 1 (2013)
owners not liable in absence of evidence that only
possible source of exposure was owner’s property
– West v. Rochkind, 212 Md. App. 164, 66 A.3d
1145 (2013), cert. denied (10/21/13)
30

31. 


pediatrician lacked requisite qualifications and
adequate factual basis to render opinion
identifying source of plaintiff’s lead exposure –
Hamilton v. Dackman, 213 Md. App. 589, 75 A.3d
327 (2013)
insufficient factual evidence that subject property
was substantial contributing source of plaintiffs’
injuries – Hamilton v. Kirson, No. 1530, Sept.
Term, 2011, April 30, 2013, cert. granted
(8/14/13)
plaintiffs’ medical expert lacked sufficient factual
basis to opine as to source of plaintiffs’ lead
exposure – Alston v. 2700 Virginia Ave.
Assoc., No. 0011, Sept. Term, 2012, July
10, 2013, cert. granted (10/18/13)
31

32.  Plaintiff’s
vocational rehab expert
- factual basis
methodology
 Plaintiff’s
economist
- methodology
-
discount rate
life expectancy
tables
32

33. 


must be defective paint at inception of lease –
Benik v. Hatcher, 358 Md. 507, 750 A.2d 10
(2000)
minor tenant a consumer?
change in ownership – new lease – new
“inception?”
33

34. J. Marks Moore III
Semmes Bowen & Semmes
J. Marks Moore III
Semmes Bowen & Semmes, APC
410.576.4722
mmoore@semmes.com