One of the scourges of the modern-day world is mold and the impact of exposure upon our health. In a recent court case, Maryland’s Court of Special Appeals decided that a doctor’s opinion that exposure to mold led to a raft of problems for workers in a water-damaged building was not scientifically valid under the standard presently used in the Maryland court system.

The lawsuit stemmed from complaints by several employees of the Baltimore Washington Conference of the United Methodist Church (BWCUMC) of an odor emanating from the walls. A maintenance crew investigated and discovered mold. As a result, several workers filed claims against BWCUMC and its insurer, Montgomery Mutual Insurance Company with the Maryland Workers’ Compensation Commission. The workers said they suffered from “sick building syndrome” as a result of the exposure. While some of the workers’ claims were disallowed, several were awarded partial compensation.

On Monday, Bradley Schwartz, a well-known Montgomery County civil litigation practitioner, received a 5 year sentence issued by Circuit Court Judge Steven G. Salant for misappropriation of more than $1 million in client funds. The sentence marks the end of a tumultuous story that involves gambling addiction, Chinese email/collection fraud well-known to the legal community, and overall poor judgment. As reported in today’s Washington Post, Judge Salant called the case “a tragedy of Shakespearean proportions” and issued a sentence longer than recommended by the state guidelines. “I want to make it very clear that most of the 35,000 some-odd attorneys in the state of Maryland are very hard working men and women who are honest and ethical. . . . It hurts me to think that when the community, when the public, looks at us, they’re going to be looking at what the defendant did here.”

A Montgomery County jury Thursday afternoon reached a $5.6 million verdict after a nine day medical malpractice case against an osteopath for causing nerve and spinal injuries during a high velocity cervical manipulation performed upon his patient. The claims were brought by Nancy and James Marquez against Hadi M. Rassael, D.O. and Advanced Medical and Cosmetic Group, Inc. The jury deliberated 7 hours before reaching its verdict. Approximately $2.7 million of the award was for past and future lost earnings of Ms. Marquez who was a physical therapist at the time of the improper manipulation, and who was never able to return to her profession due to her nerve and back injuries. Ms. Marquez continues to suffer intractable pain and has undergone two surgeries to repair her damaged brachial plexus and to replace a disrupted disc at level C5-6 in her neck. Approximately $276,000 of the award was for past medical expenses. The remaining $2.5 million was awarded for noneconomic loss to Ms. Marquez and her husband. That award is subject to Maryland’s cap on noneconomic loss. Marquez, et ux, v. Rassael, et al, Case No. 298673-V (Circuit Court for Montgomery Co.).

In February 2005, Ms. Marquez presented to Dr. Rassael’s office for purposes of receiving a very light, non-twisting osteopathic manipulation to her hip joint know as “muscle energy technique.” Since her days as a Division One swimmer on the Michigan State swim team, and her participation in numerous triathalons, many of which she had won, she suffered from periodic hip pain which was resolved through use of the muscle energy technique. She presented to Defendant Rassael’s office after specifically asking whether he was familiar with that technique and was told he was. After arriving at the office, however, the doctor laid Ms. Marquez on an exam table and proceeded to examine her back. When his hands got to the back of her head, he suddenly and without warning twisted her neck in both directions in a forceful manner, causing injury to the nerves in her neck and a rupture of one of her vertebral disks at C5-6. Ms. Marquez, now age 33, has never recovered from her injuries which plague her with pain and muscle atrophy that prevents her from participating in competitive sports of any type. She underwent a brachial plexus decompression surgery and a disk replacement surgery in Germany.

Robert E. Cahill, Sr., retired Baltimore County Circuit Court judge, died on December 14th from a long standing illness. He was 77. Judge Cahill will be remembered as a no-nonsense trial judge with a great legal mind and lots of instinct and wit. His obituary appears in the Baltimore Sun.

The lawyers at Belsky & Horowitzhad the honor of trying a variety of cases before Judge Cahill. We learned a great deal from his handling of trials, motions and courtroom procedures. We knewhe always expected a great deal of us as advocates for our clients and we hope we lived up to his expectations. We learned a great deal from the judge and express our condolences to his family.

There is a famous quote oft-repeated by judges that a client who serves as his own lawyer has a fool for a client. “Pro se litigants” as they are referred to by the bar rarely succeed in getting a fair day in court. In an opinion rendered today by the Maryland Court of Special Appeals, however, a well prepared and apparently legally shrewd pro se litigant won his battle against Gateway Computer Company of South Dakota over procedural squabbles arising from the small print contained in the agreements he was required to sign when he purchased his EMachine from Best Buy.

As the Court noted in its opinion, the dispute giving rise to the appeal had a “humble origin.” A Best Buy customer purchased a computer that didn’t work properly. In a scenario many are familiar with, after many hours on the phone with Gateway technical support and after presenting to Best Buy and being told they would not fix the machine without charging him several hundred dollars, he sued Gateway and Best Buy for his money back ($377.98), plus $30,000 in consequential damages. Sounds simple enough, right? Well, here’s where the fun began for the pro se plaintiff.

The plaintiff filed suit in the Circuit Court for St. Mary’s County-a Maryland state court, alleging breach of express and implied warranties and violation of certain state consumer protection and federal warranty laws. Inside the Emachine packing box, however, was a document entitled “One Year Limited Warranty” that provided, among other things, that all disputes were to be arbitrated, not litigated, and that South Dakota law would govern the resolution of all disputes. As a result, the circuit court dismissed the case even though the plaintiff had asked for more time to conduct prehearing discovery.

Well, the plaintiff did not give up after dismissal. He appealed his case to the Maryland Court of Special Appeals asserting eleven grounds upon which the circuit court erred. Today, the court issued its published opinion. After a significant investment of time and money way beyond the amount in dispute,the plaintiff won and he won big indeed because of the jurisprudence enuniciated by the Court in its decision!

The Court of Special Appeals, in a very interesting published opinion styled Henry v. Gateway, Inc., concluded that the plaintiff’s right to pre-hearing discovery was not enforced by the trial court and that he was entitled to learn of certain information from Gateway before the motions hearing that resulted in dismissal. The Court concluded that the trial court erred in dismissing the case.

As a second and more legally interesting basis for reversal, the Court analyzed its role in reconciling out of state federal law against clear and contrary law from our state supreme court, the Court of Appeals of Maryland. The federal issue before the court was whether federal warranty laws (Magnuson Moss Act) prevailed over federal arbitration laws so that a litigant claiming violation of federal warranty law could not be forced to arbitrate their claims under the Federal Arbitration Act. The Court concluded on several grounds that Maryland state law controlled despite the choice of law provision that South Dakota law controlled.

The Court concluded that despite a majority of federal courts that have ruled that federal arbitration laws prevail over federal warranty law so that the warranty claims must be arbitrated, Gateway cited not a single South Dakota case for that proposition and argued only that the South Dakota Supreme Court would side with the majority of federal trial court and appeals decisions from other circuits and would uphold the arbitration clause.

The Maryland appeals court disagreed, and refused to accept a “headcount” of federal cases by the defendant as conclusive proof of how the South Dakota court would rule. Maryland case law contains a different rule. “In Pope v. State, 284 Md. 309, 320 (1979), the Court of Appeals citing Article 2 of the Maryland Declaration of Rights, said that ‘unlike decisions of the Supreme Court of the United States, decisions of federal circuit courts of appeals construing the federal constitution and acts of the Congress pursuant thereto, are not binding upon us.’ See also Dregen v. State, 352 Md. 400, 414, n.8 (1999); Lone v. Montgomery County, 85 Md. App. 477, 494 (1991).”

The court continued as follows:

Embracing the rule set forth in the Restatement (Second), Maryland appellate courts have long recognized the ability of parties to specify in their contracts which state’s law will apply. Jackson v. Pasadena Receivables, Inc., 398 Md. 611, 617 (2007). The Court of Appeals has required the existence of a “strong” public policy to override a choice-of-law clause in a contract, id. at 621, and has not hesitated to apply out-of-state law, even where it would trump an act of the General Assembly. Id. at 627. However, it is difficult to think of a stronger or more fundamental public policy than one expressed in the State Constitution. Nor can we conceive of a more forceful statement of the duty of a state court than found in Article 2 of the Declaration of Rights. Unlike the oath for State office contained in Article I, §9 of the Maryland Constitution, which requires a judge to “support” the laws of the State, Article 2 expressly mandates that “judges of this State” are “bound” by federal law, notwithstanding “anything in the Constitution of Laws of this State to the contrary.”20 Moreover, in the absence of a controlling decision of the U.S. Supreme Court, Maryland courts are to “decide federal questions the way they believe theSupreme Court would decide them,” Donald Ziegler, Gazing at the Crystal Ball: Reflections on the Standards State Judges Should Use to Ascertain Federal Law, 40 Wm & Mary L. Rev.1143, 1177 (1999), not the way some federal courts have. Pope, supra, 284 Md. at 320. That is particularly true of a federal question like that presented in Koons Ford, which had divided courts around the country. To adopt appellees’ position that a decision of Maryland’s highest court on a federal question dissolves because of another state’s opposing interpretation of federal law, or because of a headcount of federal appellate or district court decisions on the subject, would require Maryland courts to decide a federal question contrary to the way they believe the Supreme Court would have decided it. This would fly in the face of Article 2 of the Declaration of Rights. Thus, we conclude that embracing a decision of another state or a federal court disagreeing with Koons Ford, would, in the words of §187(2)(b) of the Restatement (Second), “be contrary to a fundamental policy of [this] State.

Indeed, although the case is somewhat complicated procedurally, it is amazing that the plaintiff, a non-lawyer, mustered the law and arguments together to prevail before the Maryland Court of Special Appeals. More importantly, though, is the fact that the arbitration provisions in many credit card and loan agreements are controlled by out-of-state law. To the extent a warranty or choice of law provision is implicated in a dispute involving malfunctioning goods that come with warranties or have end user agreements with arbitration provisions, consumers should take a lesson from the plaintiff in Henry v. Gateway and do their homework before caving in to the legal arguments of big corporations and their attorneys.

Barrington D. Henry v. Gateway, Inc., No. 0537, Sept. Term 2008.

For more information about this case or claims for breach of warranty or product defects, please contact the lawyers at Belsky,Weinberg & Horowitz.

Last week, the Court of Appeals of Maryland disbarred Michael U. Gisriel, a well known real estate lawyer who hosted a talk show, and was a past member of the Maryland House of Delegates. This was considered “breaking news” by the Daily Record, Maryland’s legal newspaper. The facts of the case are interesting for several reasons and can be read at the Maryland Judiciary website.

Mr. Gisriel has been retained by clients to resolve a real estate dispute. During the course of the representation, he filed court papers that were later deemed frivolous and the trial court imposed sanctions upon Mr. Gisreal and his client of more than $3,000, which Mr. Gisriel paid to opposing counsel. He was later discharged by the clients, who continued part of their case without an attorney. They ultimately resolved their case at a mediation session where it was agreed they would be paid certain monies being held in escrow by the court.

A $1,000 check was sent by the court trustee to Mr. Gisriel who, without authority, signed the clients’ names to the check and deposited it into his general account. He assumed the payment was in partial reimbursement of the fees he paid on his own behalf and on behalf of the clients as sanctions to opposing counsel. The clients were waiting for their $1,000. When they learned that Mr. Gisriel had signed their names and cashed the check, they reported him to the Maryland Attorney Grievance Commission who sought and obtained disbarment.

Mr. Gisriel had claimed that he honestly believed the check was his to cash and that he didn’t give it more than “five seconds” of thought between receiving the check and endorsing it. The Court found he intentionally misappropriated the funds and that his lack of thought was indicative of deceit and not helpful to his defense.

This case is very unfortunate, Many, including two of the seven judges on the Court of Appeals (Bell and Eldrige (retired), believed the decision was too harsh. The two judges, in a dissenting opinion, indicated they would have indefinitely suspended and not disbarred Gisriel based on his good standing and lack of discipinary problems during his more than 30 years in practice. What is also interesting is that the clients who reported Mr. Gisriel wished to withdraw their grievance and signed an affidavit that the matter had been resolved to their satisfaction and that they didn’t want to bring harm to Mr. Gisriel’s legal career. Those pleas obviously fell upon deaf ears at the Grievance Commission who has the right to do what it wishes notwithstanding what the reporting party wishes.

The bottom line is that an attorney may never sign a client’s name to a check or legal document without their express authority. That is basic law with a little common sense mixed in. This action was viewed as theft, as it very well might have been, and is just another example of how some will risk their careers over very small amounts of money.

At Belsky, Weinberg and Horowitz, we request that clients endorse a limited power of attorney whenever there is a need to sign on behalf of clients. There are more extensive powers of attorneys that can be used in other circumstances. We would be happy to discuss free-of-charge our process for preparing powers of attorney.

On June, 12, 2009, Maryland’s top court rendered a decision inPittway Corporation, et al. and The Ryland Group v. Stephon Collins, et al., No. 128, September Term, 2007. See Maryland Judiciary Website at http://mdcourts.gov/opinions/coa/2009/128a07.pdf. The case is important for its discussion of the difference between what are known as “intervening” and “superceding” acts of negligence in cases involving multiple defendants where each acted negligently at different times but where there is only one injury. Determining the extent to which a defendant’s acts are so far removed in time and place from subsequent acts of negligence by other defendants so as to relieve an earlier defendant of liability is a difficult task for any court or jury to determine. The instant case was no different in the degree of complexity of the legal analysis, yet it provides an excellent review of the different types of “causation” issues that a case like this presents and makes clear that trial court judges must usually consider the unique facts of the case before reaching decisions on intervening and superceding acts of negligence which may relieve early defendants of liability.

The case involves tragic facts. A home had been renovated by the owners who converted their basement into a medical office. No permits were pulled for the renovations and electrical work was performed. The home was originally built by Ryland Homes and was renovated by a number of subcontractors. The home was eventually rented out and the basement used for bedrooms. At the time of the original construction and subsequently during the basement renovations, substandard fire detectors were located in the basement with insufficient battery back up. A fire broke out in the home and the children of the renters and their friends were killed or seriously injured when a fire broke out. The plaintiffs alleged that a smoke detector with adequate battery back up would have saved the childrens’ lives.

Suit was filed against a large number of defendants, including the manufacturers of the smoke detector and Ryan Homes, alleging negligence and product defects which resulted in the smoke alarm not working when it should have. The smoke alarm at the time was the one originally installed by Ryland during new home construction and was not changed by the renovating contractors and subcontractors during the basement renovations. The manufacturers argued successfully at trial that the failure of the contractors to install newer battery back up alarms were superceding acts of negligence as a matter of law relieving the manufacturers of liability, particularly since the alarms were in compliance with the building code in place at the time the home was built. The trial court agreed and dismissed the case as to the manufacturers and others, and relied upon the allegations contained within the complaint without considering other factual evidence. Thus, the court granted multiple motions to dismiss on the basis that the moving defendants were relieved of responsibility “as a matter of law” due to the superceding acts of the contractors in not removing and reinstalling more modern smoke detectors.

The Court of Appeals reversed the trial judge’s decision, and determined that a trial court ordinarily may not rule on “causation” issues as a matter of law simply by considering the facts alleged in the lawsuit itself, and must consider other specific factual evidence developed during the discovery phase of the case. In the last footnote of the opinion, however, the court noted that upon remand to the trial court for further consideration of the specific facts surrounding the installation of the detector, the content of certain user manuals, and other factual evidence, the trial could find superceding acts of negligence by the renovating contractors that would justify dismissal of one or more of the moving defendants from the case.

The complexities of the court’s opinion have been omitted and simplified here. Proximate cause is an essential element of every negligence action. Where more than one defendant is involved, the issue of whose acts and omissions “caused” injury are frequently disputed. The lawyers at Belsky & Horowitz keep abreast of the law and legal decisions from our state’s courts. We understand the difficulties presented by issues of proximate cause and have dealt successfully with issues similar to those raised in the Pittway case. Please contact our litigation department should you have further questions about our practice areas or a potential claim you have.