Posted on April 26, 2012 in Business Counseling, Litigation & Transactions

On of the most common dispute between businesses involves a tort know as tortious Interference of contract. Maryland recognizes two types of tortious interference claims: "inducing the breach of an existing contract and, more broadly, maliciously or wrongfully interfering with economic relationships in the absence of a breach of contract." Kaser v. Fin. Prot. Mktg., Inc., 376 Md. 621, 628 (2003).

The two claims share the same elements – intentional acts done with the unlawful or wrongful purpose to cause damage to plaintiff’s lawful business with actual damage resulting – and can arise only out of the relationship between three parties, the two parties to the contract and a separate interferer. The three-party relationship applies equally in the instance of a business relationship where no express contract exists; however, in such situations, the right of an individual to interfere is treated more broadly.

We have found that if not properly and succinctly pled, this count may not survive a motion to dismiss at the start of the case, for failure to state a claim upon which relief can be granted. Although there are no Maryland state court cases which address this issue on an initial motion to dismiss, the United States District Court for Maryland-applying Maryland law-has routinely dismissed such claims.

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 Posted on April 26, 2012 in Business Counseling, Litigation & Transactions

To the surprise of many commercial litigators, Maryland does not recognize an independent breach of fiduciary duty claim. The Court of Special Appeals recently stated "In a claim for monetary damages at law … an alleged breach of fiduciary duty may give rise to a cause of action, but it does not, standing alone, constitute a cause of action." Wasserman v. Kay, 197 Md. App. 586, 631 (2011).

In other words the proper count is a breach of contract or negligence claim which follows what is commonly referred to as a breach of fiduciary duty. For additional information, please contact the commercial litigation practice group of Silverman, Thompson, Slutkin & White, LLC for more information.

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 Posted on April 24, 2012 in Personal Injury

A recent Court of Appeals decision, issued on January 27, 2012, involved a case that began over ten years ago and determined that awards for future medical expenses cannot be voided after the death of the personal injury plaintiff. A copy the judicial opinion regarding the case can be found here.

The case, Spangler, et al. v. McQuitty (McQuitty II), stems from what was initially a medical malpractice action. McQuitty, a minor, by and through his parents, sued an obstetrician and primary care physician, and their practice, for failing to obtain informed consent to treatment, after which McQuitty suffered severe injuries during his birth. In the first case, McQuitty I, the jury awarded McQuitty $13,078,515.00 in damages; $8,442,515.00 of which accounted for future medical expenses. Various post-trial motions were filed regarding this verdict, but McQuitty died in 2009 prior to the resolution of all proceedings.

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 Posted on April 23, 2012 in Business Counseling, Litigation & Transactions

Many businesses approach classifying workers as a tax strategy: classify someone who performs services for you as an employee, and the employer must withhold federal income taxes, withhold and pay social security and Medicare taxes, and pay unemployment tax on wages paid to an employee. Classify that same worker as an independent contractor, and the worker, not the business, is responsible for the related employment taxes. Seem like an easy decision? Think again. A mere label does not determine the employer-employee relationship for tax purposes, and misclassification can result in potentially crippling tax liabilities.

So what do you do if you think you’ve misclassified your employees as independent contractors? Fortunately, the IRS recently issued an amnesty program for employers dealing with such issues.

In September 2011, the IRS announced the Voluntary Classification Settlement Program to assist employers in correcting worker misclassifications. Employers who meet the criteria and voluntarily come forward must agree to prospectively treat the class of workers as employees for future tax periods and agree to a special six-year statute of limitations period (extended from the usual three-year period of limitations on assessment of employment taxes) beginning after the date on which the taxpayer has agreed under the closing agreement to begin treating the workers as employees. In exchange, the employer obtains substantial relief from federal payroll taxes they may have owed for the past, if they prospectively treat workers as employees.

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 Posted on April 16, 2012 in Personal Injury

The Court of Appeals recently ruled in University of Maryland Medical Systems Corp v. Muti, a case involving the appropriate interpretation of the Maryland’s Wrongful Death Statute found in Sections 3-901 to 3-904 of the Courts and Judicial Proceedings Article of the Maryland Code. A copy of the case can be found here.

The Plaintiffs were the widow and adult children of the decedent. The appeal arose because the Plaintiffs failed to disclose in their Complaint the existence of a stepson whom the decedent had adopted during a prior marriage. Plaintiffs asserted that they had not had any contact with the adoptive son for over twelve years and had no idea if and/or where he was living.

The hospital argued that a wrongful death claim requires that there may only be one action by all possible beneficiaries, and that action must be brought within three years. As a result, the failure to identify the adopted son was a failure by Plaintiffs to join a necessary party and the expiration of the three year statute of limitations precluded the plaintiffs from amending their claim.

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 Posted on April 09, 2012 in Medical Malpractice

Maryland Appellate Courts Weighs In On Medical Malpractice Suit Against University of Maryland Medical System Corporation (UMMS)

The Court of Special Appeals recently published an opinion concerning a medical malpractice complaint brought against University of Maryland Medical System Corporation. A copy of the Court of Special Appeals opinion can be found here.

The medical malpractice suit was brought by a minor, through his mother, and alleged that the care the child received following his premature birth was negligent. On the morning of the child’s birth, tests revealed that there was significant potential for a dangerous condition called "cord prolapse," a condition in where the umbilical cord is squeezed by contractions thereby cutting off blood flow to the fetus. The child was delivered by emergency Cesarean section shortly after these tests and remained in the Neonatal Intensive Care Unit for two months after his birth as a result of numerous medical complications.

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 Posted on April 03, 2012 in Personal Injury

In recent appellate opinion, a catastrophic injury case, Yiallouro v. Tolson, was reviewed for error concerning expert testimony. Yiallouro was severely injured in a car accident while in the scope of his employment, causing him to ultimately lose his job because he could no longer perform his previous tasks and there was no "light duty" work available. When Yiallouro brought suit against Tolson, the driver of the other vehicle, the Montgomery County jury who heard the case awarded Yiallouro $925,000.00 in damages: $32,000.88 for past medical expenses, $35,191.80 for past lost wages, $409,787.00 for loss of future wages, $224,010.16 for pain and suffering, and $224,010.16 for loss of consortium. However, after the verdict, the judge determined that the he had erroneously permitted one of plaintiff’s experts to testify because the testimony was too speculative and lacked an adequate factual basis for opinion under Maryland Rules 5-702 and 5-703. The expert in question was a vocational rehabilitation expert who testified that Yiallouro’s future lost wages were over $400,000.00. A copy of the Court of Special Appeals opinion, filed on March 2, 2012, can be found here.

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 Posted on March 21, 2012 in Divorce

The Maryland Court of Appeals will hear an appeal on a denied same sex divorce next month according to the Baltimore Sun’s March 17, 2012 report. The couple, who was married in San Francisco in 2008, were married for two years before one filed for divorce in Maryland. Their uncontested divorce was denied by the Prince George’s County Circuit Court. Judge Chapdelaine of the Court denied the divorce because he found the parties California marriage was not valid in Maryland and therefore they can not divorce in Maryland. We had previously blogged on this issue as the Courts are in limbo with the legislation being passed, but not yet in effect and in light of the Attorney General’s February 2010 opinion that Maryland should recognize same sex marriages in other states as valid in Maryland. The Sun reports that few counties have granted same sex divorces, including Baltimore City, Calvert County and Prince Georges County, in another instance. As it stands it is the Judge’s call, which is why this future ruling by Maryland’s highest Court is crucial. If the Maryland Court of Appeals upholds Judge Chapdelaine’s ruling those same sex divorces that have been granted could be then potentially nullified.

For more information on same sex divorces contact an experienced Maryland Divorce Attorney.

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 Posted on March 06, 2012 in Criminal Defense

As a full time Maryland Criminal Lawyer and former Baltimore County Prosecutor practicing exclusively in the criminal arena for almost 20 years, I have handled more Sex Offense Cases (on both sides of the aisle) than I can recall. Recently we have seen an uptick in the number of Craig’s List initiated Solicitation of Minors for Sex cases being charged, particularly in Baltimore County. Most of us are familiar with this type of sting operation from the Chris Hanson "To Catch a Predator Series" on MSNBC. These are extremely serious cases that are prosecuted aggressively by both the State and Federal authorities. It is imperative that a person charged in one of these stings immediately retain the most experienced, aggressive and influential attorneys they can find.

My law partner former Federal Prosecutor Andrew C. White who directed the Child Sex Offense of the U.S. Attorney’s Office for over 7 years, and I have teamed up to successfully resolve dozens of these cases over the past decade or so when we first starting seeing these sting operations. It is imperative to have someone very experienced and influential in the federal system as there is dual federal and state jurisdiction to prosecute these cases. We were hired by someone caught up in one of these investigations just last week. I won’t go into the specifics of any of the cases for obvious privacy reasons, but here is an outline of a typical case such as this.

Typically police conduct these investigations by entering chat rooms or more recently by posting an ad on Craig’s List. The language in the ad will say something like "I have time" or "Let’s hang out" followed by 18. An unsuspecting person will then respond to the ad and will be contacted back by an undercover detective. Eventually pictures will be exchanged and then the conversation will turn to sex. At some point the detective will message that "she" is 13 or 15 years old and ask something like "are you cool with that".

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 Posted on February 28, 2012 in Driving Under the Influence

As a Maryland DUI/DWI Attorney I am frequently asked by friends and acquaintences whether they should take the breathalyzer if they are stopped for suspicion of Driving Under the Influence . This question is almost invariably followed by the statement, "because I have always heard that you should never take it".

I am not completely sure where this idea that one should never take the breathalyzer came from, although I suspect it is simply dated advice that is still being recirculated because in my view, under most circumstances, a person who is stopped by the police should take the breathalyzer if asked to do so. Here’s why:

As most people are aware, significant changes have been made to the law regarding Driving Under the Influence over the past 20 years. For instance, 20 years ago the legal limit was a BAC of .12 as opposed to .08 today for Driving Under the Influence. In those days judges were also far more likely to give a well represented defendant the benefit of the doubt in cases where there was no breathalyzer. The administrative sanctions imposed by the MVA for refusing the breathalyzer were also far less severe than they are today. The bottom line was in those days not taking the breathalyzer gave you a better shot at being found not guilty in criminal court and did not subject you to extreme administrative penalties. It may very well have been sound legal advice to advise people to never take the breathalyzer before these changes.

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