Maryland Injury Law Center

Judge Harrell opens the Maryland Court of Appeals’ unanimous opinion today like this:

[Jeremy] Bentham (my note: a name familiar to my ultraeducated readers and Lost fans) stated the case against retroactivity most succinctly when he likened it to ‘dog law.’ He was referring to the age-old method of training dogs by waiting until they do what they are to be forbidden to do, and then kicking them.” NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 41.02 (5th ed. 1992) [hereinafter SUTHERLAND]; see JEREMY BENTHAM, Truth versus Ashhurst, in 5 THE WORKS OF JEREMY BENTHAM 235 (1863) (“They won’t tell a man beforehand what it is he should not do—they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it. What way, then, has any man of coming at this dog-law?”).

Sadly, Judge Harrell did not bother to read “Eight Leaflets on Aspects of Bentham’s Thought and Life” which explains that Bentham completely changed his views on retroactive dog law in later writings. What? You think I just made that up? Fair enough. I’ve never read Bentham. In fact, I may not have heard of him until Lost and my knowledge may or may not be limited to a Wikipedia page. Seriously, I wish I had a more classical education. (Besides, I would never call out a Maryland judge with a “sadly,” because I’m not quite that brave.) Continue reading

Big win for lead paint plaintiffs today in Maryland Court of Appeals as the court ordered a new trial after a jury verdict for the landlord.

Jury instruction error in lead paint case not harmless error: new trial

In Janay v. Wlikowsky, the landlords’ attorney questioned the Plaintiff’s grandmother whether she had ever notified the landlord about flaking and peeling paint in Barksdale’s home. Although they do not point to the grandmother or any “contributory negligence” by the family (not that there can be contrib but you get the idea), the landlords’ attorney sought and got a jury instruction showing that a person’s failure to report flaking paint to the landlord is evidence of negligence. The grandmother’s negligence would not be because of the child anyway because she could be a substantial contributing cause to the harm and the child could still recover against the landlord.

After a defense verdict, the Maryland Court of Special Appeals agreed that this is a flawed jury instruction. But the CSA affirmed the trial court’s verdict because they found the error to be harmless.

The Maryland Court of Appeals rejected Plaintiff’s lead paint attorneys’ theories that a presumption of prejudice should be afforded to lead-poisoned children and their contention that a defective jury instruction by definition implicates due process. (Both parties presented novel but rejected theories. The defense argued that it somehow mattered that the landlord’s lawyer did not argue the grandmother’s negligence in closing.) The court listened to these arguments but did find that under these facts, the error is not harmless. I can’t think that was a hard call.  The jury’s thinking they can blame the grandmother creates a whole new lens to look at the case, no matter how they find.

It is easy to imply in a case like this that the Plaintiff’s attorney did not have the jury. Reading between the lines, I’d be willing to bet this jury would have given a defense verdict even without the error. But it is important to remember this is a matter of speculation. Maryland Rule 5-606 strictly limits a court’s ability to inquire post-verdict into “the sworn juror’s mental processes in connection with the verdict.” So you can’t “unbake” the jury verdict by asking them “Hey, would this have made a difference?” There will never be a tangible proof of prejudice because we cannot read the minds of the jurors.

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