Posted on November 25, 2015 in Business Counseling, Litigation & Transactions

In its 2009 decision in Shenker v. Laureate Educ., Inc., 411 Md. 317, the Court of Appeals of Maryland inserted a caveat in the premise that shareholder lawsuits against corporate directors must be pursued as a derivative action on behalf of the corporation itself. By declaring that a corporation’s impending sale gave rise to common-law duties by directors that could be enforced directly by shareholders, the high court outlined an exception that risked swallowing the rule. Last month, however, the Court of Special Appeals gave a more thorough explanation about when Shenker applies – and, as to be expected, it’s not as broad as disgruntled shareholders might hope.

In Sutton v. FedFirst Fin. Corp., Ct. of Spec. App., Sept. Term 2014 (Oct. 29, 2015), the planned stock-for-stock merger of FedFirst Financial Corporation and CB Financial Services, Inc., upset FedFirst shareholder Larry Sutton, who brought direct claims against the company’s individual directors alleging that, in effecting the merger, they breached their fiduciary duties to the shareholders by undervaluing the company and giving themselves exclusive benefits. (He also sued the two companies for allegedly aiding and abetting the directors’ breach of those duties.) The defendants moved to dismiss the lawsuit, arguing, among other things, that Sutton was barred from bringing a direct action against FedFirst. Sutton responded by invoking the Shenker exception, but the trial court wasn’t convinced and tossed the case out.

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 Posted on November 25, 2015 in Medical Malpractice

A Philadelphia jury last week awarded more than $10 million to a now-six year-old boy and his family against a hospital and its physicians who delayed significantly in diagnosing the child’s bacterial meningitis.

The boy – at the time just 11 months old – was taken to the emergency room on December 21, 2009 with a fever and other symptoms that had been persistent over a number of days. He was diagnosed with an upper respiratory infection and sent home. When his symptoms worsened overnight, the boy was returned to the hospital with an even higher fever, an elevated respiratory rate and an elevated heart rate. According to the plaintiffs’ experts, at this critical juncture the standards of acceptable medical care required that the boy be tested for a bacterial infection. However, he was again sent home with no such test was administered.

Upon arriving at the emergency room for a third time, it took hours for blood work to be completed and even longer for medical personnel to administer the antibiotics necessary to combat the infection. By then, the child had suffered significant, irreversible brain damage. Now almost seven years old chronologically, the child is functioning at the developmental level of a three year-old. At trial, the defense took the position that with conservative treatment at the hospital during the first two visits, the boy’s symptoms – which they believed to be consistent with mere bronchitis – seemed to subside, indicating that such conservative treatment was working and leading them to believe discharging him was appropriate. The jury’s $10.1 million award was comprised of $1.5 million for future medical care, $1.1 million for loss of earning capacity and $7.5 million for pain, suffering and mental anguish.

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 Posted on November 13, 2015 in Medical Malpractice

Earlier this month, a Prince Georges County, Maryland jury awarded nearly $400,000 for wrongful birth as the result of the mother/wife becoming pregnant after undergoing a bilateral tubal ligation (BTL) procedure. A BTL is a surgical procedure that involves blocking the fallopian tubes to prevent the female’s egg from being fertilized. In this case, the BTL was performed by cauterization (burning) but it also can be performed by cutting, removing sections of, or placing clips on the fallopian tubes.

In the lawsuit, the Plaintiffs alleged that the woman became pregnant five to eight weeks after undergoing the BTL on January 19, 2011. On April 11, 2014, the woman saw the defendant doctor for a regular visit and advised that she had missed her menstrual period. A pregnancy test was ordered and it was determined that she was in fact pregnant.

After the child was born, a radiological study with dye found that one fallopian tube still was patent (able to carry an egg). She then underwent a second BTL wherein it was found that while the left fallopian tube had been properly cauterized, the right fallopian tube was still perfectly intact. The physician performing this secondary BTL took photographs and video of the tubes before properly cauterizing the right tube, thereby permitting the Plaintiffs to concretely show the jury that a medical mistake had occurred. While the defense took the position that the fallopian tube had regrown – apparently a known risk of such a procedure – the Plaintiffs’ attorneys were able to cast doubt on this theory by showing that the pregnancy occurred within just five to eight weeks of the initial BTL procedure. The jury awarded $397,000 for the future cost of raising the child and did not reduce its award at all for the joy, comfort and society received by the parents from having the child.

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 Posted on November 03, 2015 in Driving Under the Influence

As an Aggressive Former Baltimore County Prosecutor and DUI/DWI Attorney, I have prosecuted and defended well over 5,000 DUI’s in my almost 20 year career. These cases are prosecuted very aggressively in Maryland with few dismissals and even fewer acquittals. The police have been trained to write highly detailed reports describing their interactions with defendants too include their performance on field sobriety tests. These detailed reports are then testified to in court and are very often viewed as sufficient evidence to convict, at least of Driving While Impaired, even with low blood alcohol readings such as .05 or .06.

I handled a case in Baltimore County this week in which my client blew only a .06. The prosecutor initially refused to dismiss the case. However, after speaking with me in detail about the circumstances of the police officer’s stop of my client and his performance on the field sobriety tests, I convinced her that she would be unable to prove the case. Here are the facts:

My client was driving home from a party on Route 40 at around 2am one night. He was following his cousin who was pulled over by a State Trooper for speeding so he (probably foolishly) pulled over a few hundred yards down the road to wait for him. At this point another State Trooper drove up behind my client and activated his emergency equipment. My client was legally pulled over on the shoulder of the road. There was no sign saying no stopping and he was not in anyway impeding traffic.

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 Posted on October 30, 2015 in Medical Malpractice

A New Jersey jury this month awarded $6 million to the family of a man who died from colon cancer that should have been recognized and treated far sooner. A copy of the article regarding the case can be found here. In the medical malpractice lawsuit, the family alleged that the 62 year-old patient – whose family medical history included colon cancer – became concerned when he noticed blood in his stool. In 2007, he presented to a colorectal surgeon who, after performing a colonoscopy, told the patient that the blood in his stool was merely the result of hemorrhoids, indicating to the patient that there was nothing to worry about. Interestingly, the doctor had videotaped the colonoscopy so that he could use it for educational purposes in the future.

Approximately two years later, this patient found himself in severe pain and, consequently, presented to the emergency room. There, doctors discovered a large mass on his liver. Days later – and while still admitted to the hospital – another physician performed a second colonoscopy. At that time, it was determined that the patient had been suffering from colon cancer which had metastasized (spread) to his liver.

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 Posted on October 26, 2015 in Criminal Defense

As an Aggressive Criminal Attorney and Former Baltimore County Prosecutor, I have defended dozens if not hundreds of individuals who have been charged with Possession and/or Distribution of Child Pornography. I have been practicing exclusively criminal defense for the last 17 years since leaving the Baltimore County State’s Attorney’s Office and handle these types of cases all over the State. There is simply no question that they are prosecuted more aggressively in Baltimore County than in most any other jurisdiction. For this reason, it is imperative to find a full time criminal attorney who has substantial experience handling Child Pornography cases, in Baltimore County.

I recently defended an individual in Baltimore County that is a good illustration of how aggressively these cases are prosecuted there. Here are the facts:

My client is a 50 year old man. He has never been married, has no children and lives by himself in a small house on the property of one of his relatives. He has a good work history as a warehouse worker and has no criminal record of any kind. In other words, he was living a fairly normal life and nobody in his family had any idea that he was downloading child pornography.

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 Posted on October 26, 2015 in Criminal Defense

As an aggressive Criminal Defense Attorney, who is also a former Assistant State’s Attorney, I have helped numerous clients accused or charged with possession or distribution of child pornography. These serious charges can be prosecuted in State court or Federal court. Since State criminal charges are different than Federal criminal charges, which often carry far more severe punishment, I team up with my partner and former Federal Prosecutor Andrew White, who led the sex offense unit of the United States Attorney’s Office for more than 7 years. Over the years Andy has had tremendous success using his connections to have these cases prosecuted in State courts where there are no minimum mandatory sentences, as there are in the federal system. However, even in State court, these serious crimes may result in a felony conviction, extended prison sentences and the requirement to register as a sex offender.
Serious consequences In Maryland, a conviction even for Misdemeanor Possession of Child Porn mandates registration as a Tier I Sex Offender for 15 years. A conviction for Felony Distribution or Possession with the Intent to Distribute Child Porn mandates registration as a Tier II Sex Offender for 25 years. Additionally, a charge of possession for distribution of child pornography will likely impact every aspect of your life. From job prospects, to where you can live, to not being able to step on the property of your child’s school, to having the police notify your neighbors of your status, as well as inclusion on sex offender websites with your exact home address and picture.
I recently had a young man facing these daunting consequences. Here is what happened:

Facts of the case My client (I have changed or left out any identifying facts to protect my client’s privacy, otherwise the facts of the case are accurate) is a 21-year-old man raised in the suburbs of Washington D.C. with no prior criminal record. After graduating from high school he enrolled at a community college where he had earned nearly enough credits to obtain an associate degree. He then was going to transfer to a 4-year university to finish his education. To save money he was living at home and working at a restaurant to help pay for his tuition and living expense. In other words, he was a normal young guy living a normal life until early one morning last summer.
On this particular morning, his entire family was awakened at 5 AM by extremely loud banging on the door of their home accompanied by shouts of, "Police, we have a search warrant." Unlike many cases I have seen, in this instance the police allowed the client’s father enough time to get to the door to let them in, rather than breaking it dwon.
The police, now inside the home, read the warrant to my client, his parents, and younger siblings and each was Mirandized. The police informed my client and his family that the downloading, and according to the police, the distribution of child pornography had been traced to a computer in the home via the computer’s IP address. The police requested all computers and external storage devices in the home to be given to them. At this point, my client admitted he had downloaded child pornography, but denied any distribution of the material. He cooperated and led the police to his room where his computer and half a dozen external storage devices were located. He provided his password and the police were able to match the computer’s IP address to the one they were searching for.
My client asked that his family’s machines not be confiscated, but the police refused saying they had to do a thorough search of all computers in the home but promised to return all computers not found to contain illegal content quickly if they all provided their passwords. They all agreed. The police collected all computers and performed a thorough search of the house. After several hours the police left without arresting my client to his astonishment.
Retaining an Experienced Attorney
The next day, using a friend’s computer, my client searched for a criminal defense attorney experienced in handling these matters. He found Andy and me and we met that afternoon. He retained us that same day and immediately I informed the police of my law firm’s involvement in the case. I asked that if they charged my client, they do so with a criminal summons instead of a warrant. On the spot, they refused but said they would consider it depending on what they found. In any event, they agreed that they would contact me to arrange my client’s surrender if a warrant was issued.
Upon speaking to my client about the case, he admitted to downloading child pornography. Like most of the men I have represented in these cases, my client had started looking exclusively at adult pornography and had unintentionally downloaded child pornography through large file downloads using BitTorrent and similar peer-to-peer sharing programs. He did eventually begin searching for and downloading child pornography, but explained he NEVER distributed the material to anyone, and didn’t understand why the police claimed he had.
I explained to him that during the downloading process, peer-to-peer sharing programs make a user’s files available to others for download. In other words, the police probably accessed his files, while he was downloading material. My client was adamant he had turned off this feature after each download was complete-further showing he did not intentionally distribute any material. Despite being confident he would be found not guilty of doing so in trial, I cautioned him that often in these cases prosecutors use the threat of federal indictment, with more punitive consequences, to obtain a guilty plea to the felony count in State court. Based on the facts my client gave me, I advised him he would probably be charged, which he was.
On the misdemeanor possession counts, I advised him it would be difficult to defend this charge since he gave a Mirandized confession. My strategy was to attack the warrant hoping it contained a Constitutional defect. We had successfully attacked warrants in similar cases, but advised him that finding case dispositive defects is rare. While I worked on this strategy, I referred my client to a top doctor, whom I had used in other similar cases, to administer a psycho-sexual evaluation to help convince the court that my client was neither a predator nor a danger to the community.
Ultimately, the State indicted him on 3 counts of distribution of child pornography (for the two images and one video detectives had downloaded from his files in the manner that I had advised him they had done) and 50 counts of possession of child pornography, although over 300 images and videos were found on his computer and thumb drive. Unfortunately, we found the warrant was issued legally so there was no viable defense to the misdemeanor possession counts. The best option for my client was to convince the State to drop the felony counts, which would mean the case would have to be resolved by negotiation rather than trial.
Conclusion First we were successful in convincing the US Attorney’s Office to allow the case to remain in state court. Needless to say, this was a huge victory for the client.
We made it clear our client lacked intent and having no prior record he would never plead to the felony. The prosecutor relented and agreed to 6 counts of possession to child pornography, agreed to drop the other 44 counts of possession, and decided not to pursue felony charges.
We then convinced the court to grant probation before judgement (PBJ) so our client did not have to register as a sex offender or serve any jail time. The PBJ allows him to expunge the matter from his record in 3 years.
Since the client had given a confession, there was no defense to the misdemeanor charge. Therefore the resulting outcome which included no felony charges, no sex offender registration, and no jail was the best conceivable outcome for the client and is one that will allow him to put this behind him some day.

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 Posted on October 23, 2015 in Medical Malpractice

Last week, a Minnesota jury awarded $9.1 to a then-51 year old man who suffered paralysis during surgery to repair a perforated bowel. The verdict is believed to be the third-largest verdict or settlement in the state’s history. A copy of the article regarding the case can be found here. The gentleman presented to an area hospital with flu-like symptoms and was given fluids for dehydration until his doctors determined that he was suffering from a perforated bowel. In preparing him for surgery, his doctors stopped the administration of fluids for his dehydration. As a result, his blood pressure dropped dramatically which prevented his spinal cord from receiving adequate blood flow, resulting in permanent spinal cord damage.

His lawyers argued to the jury that the standards of acceptable medical care require that a patient who is severely dehydrated be rehydrated prior to surgery. As is evident from this case, the failure to rehydrate the patient and get his blood flowing properly again had catastrophic consequences. According to the plaintiff’s attorney, the central argument of the defense was "we don’t know how this happened but it couldn’t have happened during surgery."

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 Posted on October 16, 2015 in Medical Malpractice

As experienced medical malpractice attorneys in Maryland, we frequently receive calls from people who believe an ambulance company, paramedic or some other type of emergency first-responder made a medical mistake that caused them needless injury. Of course, the question becomes: can such emergency personnel be held responsible for medical negligence through a medical malpractice lawsuit? The answer to this question, like so many others under the law, is "it depends."

Maryland statutory law provides immunity to members of "any State, county, municipal, or volunteer fire department, ambulance and rescue squad, or law enforcement agency" if the member meets certain requirements, such as having completed a first aid course and holding a license or certification from the State as an emergency medical services provider. A copy of the statute can be found here. This law is formally titled "Emergency medical care" and has been referred to by Maryland courts as the "Good Samaritan Act." Importantly, the Good Samaritan Act only provides immunity for ordinary negligence and not for acts of "gross negligence" or willful misconduct.

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 Posted on October 13, 2015 in Appeals - State & Federal

Have you obtained a judgment for recovery of money? Lucky you! Is that judgment unsecured? Ouch.

Well, at least you have some protection should your opponent decide to appeal: Under the Maryland Rules (and unless the parties agree otherwise), the appellant has to file a supersedeas bond covering the whole amount of the judgment that remains unsatisfied, plus interest. Of course, the court can always reduce the bond amount, but it can still be a pretty big deterrent to weak or frivolous appeals that just delay payment and increase the chance that some other creditor will snatch up the debtor’s funds in the meantime. As proposed in the 188th Report of the Maryland Standing Committee on Rules of Practice and Procedure, however, the bond isn’t without limits.

If a bond always had to cover the full amount of an unsecured money judgment, losers at the trial level who owe big bucks to the winners would, as a practical matter, often be unable to afford the opportunity to exercise their right to seek review. The new Report would change Rule 8-423(b), which provides for the bond in an appeal from an unsecured money judgment, to clarify that it is still subject to Md. Code, Cts. & Jud. Proc. Art. § 12-301.1. Pursuant to that statute, a supersedeas bond can’t exceed $100,000 unless the appellant has diverted or dissipated assets outside the course of normal business or is in the process of doing so.

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