1 c pretrial motion practice moore 3 hb lead-conf
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HB Litigation Conferences Lead Litigation 2013

HB Litigation Conferences Lead Litigation 2013

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1 c pretrial motion practice moore 3 hb lead-conf 1 c pretrial motion practice moore 3 hb lead-conf Presentation Transcript

  • November 14-15, 2013
  • J. Marks Moore III Semmes, Bowen & Semmes 25 S. Charles Street, Ste 1400 Baltimore, Maryland 21202 mmoore@semmes.com 410-576-4722 3
  • I. II. III. IV. V. VI. Mandatory Motions Permissive Motions General Motions Motions for Summary Judgment Discovery Motions Motions in Limine 4
  • A. B. C. D. Personal Jurisdiction Improper Venue Insufficiency of Process Insufficiency of Service of Process 5
  • 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
  • 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
  • A. B. C. D. E. F. Timing Motion Response Defense Not Available Contradictory Affidavit or Statement Bases 8
  •   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
  • 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
  •  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
  • 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
  •  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
  • 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
  • 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
  • 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
  •  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
  •  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
  •     Accord and Satisfaction (settlement, release, payment) Estoppel Issue Preclusion Res Judicata 19
  • 20
  •   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
  •  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
  • 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
  •  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
  •    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
  • 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
  • Defendant landlord’s conduct must be a “substantial factor” in causing the injury 27
  • 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
  • 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
  •     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
  •    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
  •  Plaintiff’s vocational rehab expert - factual basis methodology  Plaintiff’s economist - methodology - discount rate life expectancy tables 32
  •    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
  • J. Marks Moore III Semmes Bowen & Semmes J. Marks Moore III Semmes Bowen & Semmes, APC 410.576.4722 mmoore@semmes.com