Partners Jay Holland and Veronica Nannis Represented Whistleblower Who Filed False Claims Act Complaint Against Trans1 (Now known as Baxano) Which Alleged Off-Label Marketing and Promotion of a Spinal Device; And Caused Hospitals and Doctors to Improperly Bill Medicare, Medicaid and Other Government Insurance Programs.
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| For Immediate Release | Joseph, Greenwald & Laake, P.A. | |
| September 1, 2010 | Contact: Jay Holland (301) 220-2200 |
Baltimore whistleblower aided government investigation
The pharmaceutical company Allergan, Inc., entered into a $600,000,000 settlement and agreement to plead guilty after a Federal investigation into illegal marketing practices of Botox. The investigation was aided by Albert Hallivis, company employee turned whistleblower, who was represented by Jay Holland and Brian Markovitz of Joseph, Greenwald & Laake, P.A.. Hallivis, who remains employed by Allergan, revealed to federal investigators that the company was urging doctors to prescribe Botox to treat for uses not approved by the Food and Drug Administration (FDA). The practice, known as “off-label” marketing, is prohibited by federal law.
As part of his job as sales representative, Hallivis was expected to market “off-label” uses for Botox as a way to increase sales. Hallivis, troubled that he was asked to violate federal law, called FDA’s Help Line. Thereafter, Hallivis filed a whistleblower lawsuit under the False Claims Act and assisted the Department of Justice as well as the FBI by providing key information about Allergan’s illegal practices.
The FDA approves drugs for specific uses. But doctors, in their reasonable discretion, can prescribe drugs for uses that are not FDA approved. However, drug companies are prohibited from promoting drugs for uses not approved by the FDA as “safe and effective.” The federal government determined that Allergan’s marketing of “off-label” uses resulted in illegal Medicare and Medicaid reimbursements.
“Whistleblowers are key to uncovering and prosecuting fraud and illegal activity against the government. Often, employees fear retaliation from employers but there are laws protecting whistleblowers from retribution,” said attorney Jay Holland, who represented Hallivis. Mr. Markovitz added, “The FDA’s approval process is completely undermined by off-label marketing. Not only are patients put at risk, but in this case, the government found that Allergan’s actions cost the government hundreds of millions in Medicare and Medicaid reimbursements.”
Allergan, Inc., based in Irvine, California, will pay the federal government and numerous states a total of $600 million as part of the settlement of three False Claims Act whistleblower lawsuits. At the same time, Allergan has agreed to plead guilty to a criminal charge involving off-label marketing of the drugs.
Today’s settlement covers all three whistleblower lawsuits. Holland and Markovitz praised the work of Assistant U.S. Attorney Sally Molloy and Randy Chartash, Chief of the Economic Crime Section of the Northern District of Georgia, and their office, as well as officials and attorneys in the Department of Justice, including Edward Crooke, in reaching this result.
Joseph, Greenwald and Laake, P.A. is a 34-lawyer firm, based in Greenbelt, Maryland, and emphasizes effective legal representation and outstanding service to clients, including whistleblower claims. For more information about Joseph, Greenwald and Laake, P.A. and whistleblower cases, see www.whistleblowers.net, and www.jgllaw.com/practice-areas/false-claims-act-qui-tam-whistleblowers.
A Prince George’s County jury on Monday awarded damages totaling more than $3 million to 13 information-technology workers who lost their jobs at the Washington Suburban Sanitary Commission in a 2006 restructuring.
The fired workers argued that WSSC had abolished their positions in order to hire non-merit-system employees, who could be fired at will without the statutory protections of the merit system.
“This is vindication of these employees’ rights under the merit system,” said the plaintiffs’ attorney, Timothy F. Maloney of Joseph, Greenwald & Laake P.A. in Greenbelt. “What WSSC did was a ploy to avoid giving merit system rights to its IT employees, many of whom had given decades of service to the agency. The jury was asked to find it was a subterfuge to avoid giving them merit system rights, and it was.”
After a trial that was spread out over a month in Prince George’s County Circuit Court, the jury deliberated for most of the day Monday before finding WSSC had violated the IT workers’ constitutional right not to be deprived of property – their public-sector jobs – without due process of law.
The jury, however, rejected Maloney’s other argument that WSSC had fired the workers because they were nearing retirement age and would soon qualify for costly retirement benefits.
“Obviously, we are disappointed in the verdict,” WSSC spokesman Jim Neustadt stated in an email. “We are looking at what options we have and don’t have any further comment at this time.”
If WSSC chooses to appeal, one issue it can raise is whether WSSC, as a local government commission, has absolute legislative immunity for its decision to restructure a department pursuant to Maryland’s legislative budget review process.
That issue had been presented to Maryland’s top court during an earlier phase of the litigation, after the trial court rejected WSSC’s immunity claim. The Court of Appeals found, in 2009, that the ruling on immunity was not subject to an appeal while the rest of the case was pending.
The jury’s $3.03 million award of back and front pay to the 13 workers eliminates that procedural obstacle.
“We’re going to look at our options,” said WSSC attorney Kenneth L. Thompson, of Venable LLP in Baltimore. “We’ll be filing motions accordingly.”
The workers, fired in summer 2006, filed their lawsuit Oct. 13, 2006, in Prince George’s County Circuit Court, alleging violations of Article 24 of the Maryland Constitution’s Declaration of Rights and of the state law prohibiting age discrimination in employment. They initially sought only a court order restoring them to their former merit system employment but later added claims for lost past and future wages.
On Jan. 3, 2007, WSSC moved to have the case dismissed, arguing that the commission had legislative immunity from suit. In support, WSSC argued that abolishing the workers’ jobs was accomplished via a “budgetary process spelled out by the General Assembly” and approved by the Maryland Department of Budget and Management and the councils of Montgomery and Prince George’s counties.
“Eliminating public-sector jobs under these circumstances constitutes legislative activity to which the doctrine of absolute legislative immunity squarely applies,” WSSC argued in its motion for dismissal.
When the circuit court denied the motion in June 2007, WSSC sought review by the Court of Special Appeals.
The intermediate court held on Sept. 4, 2007, that WSSC’s appeal was premature. The Court of Appeals agreed in an Aug. 26, 2009, opinion, permitting the fired workers’ lawsuit to proceed.
COLLEEN BOWEN ET AL. V. WASHINGTON SUBURBAN SANITARY
COMMISSION
Court: Prince George’s County Circuit Court
Case No.: CAL-06-22334
Judge: Beverly J. Woodard
Outcome: Jury verdict for plaintiffs ($3.03 million)
Dates: Event: Summer 2006.
Suit filed: Oct. 13, 2006
Trial: Nov. 12, 2013-Dec. 13, 2013.
Jury Verdict: Dec. 16, 2013.
Plaintiffs’ Attorneys: Timothy F. Maloney of Joseph, Greenwald & Laake P.A. in Greenbelt.
Defendant’s Attorneys: Todd J. Horn and Kenneth L. Thompson of Venable LLP in Baltimore.
Count: Due-process violation.
John and Kate are recently divorced and they live in Maryland. They had three wonderful children during their marriage. Now the questions arise: should child support be paid, and if so, how much? The goal in calculating child support is to ensure that any children are impacted as little as possible by a shift from one household to two. Child support in Maryland is based on an “Income Shares” model. This means that a Court will look at the combined incomes of the parents, here John and Kate, and allocate any support to be paid out of that combined “family pot.”
For child support purposes, a parent’s “income” is defined by statute. Md. Code Ann., Fam. Law Section 12-201(b) defines actual income as:
1. “Actual income” means income from any source.
2. For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, “actual income” means gross receipts minus ordinary and necessary expenses required to produce income.
3. “Actual income” includes: (i) salaries; (ii) wages; (iii) commissions; (iv) bonuses; (v) dividend income; (vi) pension income; (vii) interest income; (viii) trust income; (ix) annuity income; (x) Social Security benefits; (xi) workers’ compensation benefits; (xii) unemployment insurance benefits; (xiii) disability insurance benefits; (xiv) for the obligor, any third parent payment paid to or for a minor child as a result of the obligor’s disability, retirement, or other compensable claim; (xv) alimony or maintenance received; and (xvi) expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business to the extent the reimbursements or payments reduce the parent’s personal living expenses.
4. Based on the circumstances of the case, the court may consider the following items as actual income: (i) severance pay; (ii) capital gains; (iii) gifts; or (iv) prizes.
5. “Actual income” does not include benefits received from means-tested public assistance programs, including temporary cash assistance, Supplemental Security Income, food stamps, and transitional emergency, medical, and housing assistance. Md. Code Ann., Fam. Law Section 12-201(b).
Despite being set forth by statute, there are arguments to be made in determining a parent’s income, specifically for a determination of income from self-employment and any “discretionary” items listed in subsection (4). Of note, “gifts” can include expenses paid and support given to a parent by his or her parents, relatives and/or friends. If payment for an expense (direct) or transfer of money to a parent is consistent, dependable and there is no real expectation of repayment, the Court may include those amounts as “income” of a parent in determining child support. If one parent or the other is not working, the Court may still be able to attribute income to that parent. This can occur if the Court determines that a parent is voluntarily impoverished, it may determine the parent’s potential income. “Voluntary impoverishment” can be found when a parent makes “the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources.” Goldberger v. Goldberger, 96 Md. App. 313, 327, 624 A.2d 1328 (1992). Once the Court determines both parties’ respective incomes, there are two methods by which the Court may set child support: (a) by using the Maryland Child Support Guidelines, or (b) by engaging in a “needs-based” analysis.
If the combined monthly incomes of the parents is $15,000 or less, the Court presumes that the Maryland Child Support Guidelines are correct and will set an appropriate amount of support. A presumption, however, does not preclude either parent from arguing that an application of the Maryland Child Support Guidelines would be inappropriate. What goes into the Maryland Child Support Guidelines?
1. The parties’ respective gross monthly incomes (including any alimony award);
2. Any health insurance paid on behalf of the children; and
3. The allocation of time the children are with each parent.
What else can go into the Maryland Child Support Guidelines?
1. Other child support awards or alimony being paid by a parent;
2. Work-related childcare costs;
3. Extraordinary medical expenses;
4. Cash medical support; and
5. Any “other” additional expense (this can include such things as private school tuition and costs).
The Maryland Department of Human Resources has an online “calculator” which is available to anyone: http://www.dhr.state.md.us/CSOCGuide/App/disclaimer.do.
If the parents’ combined monthly income is more than $15,000, the appropriate amount of child support is within the Court’s discretion. In such situations, the Court may use an extrapolation, or extension, of the Maryland Child Support Guidelines or may engage in a “needs-based” analysis.
A “needs-based” analysis looks at the children’s actual monthly needs to determine an appropriate amount of support. This can include anything from housing, food and clothing, to private school, tutoring, and horse-back riding lessons. It is important to remember that a child’s needs may vary drastically from case to case, depending upon the standard of living the family enjoyed prior to separation.
Anne E. Grover
I work with the Family Division out of the Rockville office and handle all types of divorce, pre-nuptial agreements, custody, support, modification, contempt, domestic violence and enforcement actions. I have briefed and argued multiple appeals in the Court of Special Appeals and the Circuit Court for Montgomery County, Maryland. I was named a Rising Star by Super Lawyers of Maryland in 2010, 2011, 2012 and 2013 and I was named a Rising Star by Super Lawyers in Washington, DC in 2013.
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JGL shareholders David Bulitt and Jeffrey N. Greenblatt were included among Bethesda magazine’s list of the Top 25 Divorce Lawyers in Montgomery County.
In order to compile its list, the magazine contacted lawyers, psychologists and social workers who work in the family law field.
Bulitt, JGL’s Assistant Managing Director, “epitomizes stability and good old fashioned common sense” and easily “shifts gears form collaboration to mediation to litigation”.
Greenblatt, a longtime stalwart of the Montgomery County family bar was cited as being “passionately devoted to getting the best deal for his clients by whatever method possible”.
Both Bulitt and Greenblatt maintain their primary office in the firm’s Rockville, Maryland location and can be reached at (240) 399-7900.
Law360, New York (September 25, 2013, 4:23 PM ET) — A defense contractor facing a former employee’s False Claims Act suit over deceptive billing recently filed trade secret and contract counterclaims alleging the whistleblower violated his employment agreement by taking company documents, but experts say the strategy is risky considering the protection afforded to most whistleblowers.
After a former financial planning and analysis manager for Massachusetts-based L-3 Communications SSG-Tinsley Inc. turned over data during discovery that he was using to back up his qui tam suit, the contractor struck back, arguing secrecy and confidentiality provisions in his employment agreement barred him from possessing the data.
Using employment agreements against whistleblowers may be tempting for companies, but it’s hardly a foolproof weapon, attorneys say. Much of the tactic’s success depends on the specific conduct of the qui tam plaintiff prior to filing.
Confidential documents form the basis for most claims of fraud against the U.S., and courts have been generally hostile to counterclaims against relators, according to Kathleen Clark, a professor at Washington University School of Law.
“Employment agreements that purport to limit someone disclosing information are generally seen as unenforceable when someone is exposing fraud,” Clark told Law360. “On the other hand, that is not a license to go with a WikiLeaks approach, taking huge amounts of documents … or copying an entire server.”
Another key factor is how the whistleblower happened upon the evidence of fraud, Clark said, noting that if an employee comes across data that is indicative of defrauding the government in the normal course of their job, the employee can collect the data.
But if the whistleblower’s data collection involves rifling through someone’s office, physically or electronically, the FCA and other statutes generally will not give an employee cover, Clark said.
How the whistleblower came across the information is just one of the factors in a three-part test of whether a whistleblower accused of peaching and employment agreement will be protected, according to Joseph Ahmad of Ahmad Zavitsanos Anaipakos Alavi & Mensing PC.
Ahmad said the relevance of the company data to the alleged fraud and the stakes involved in the claims must also be considered.
“How serious is it? If it’s a trivial accusation of fraud and a serious peach of confidentiality, that might not work,” Ahmad said.
Even considering those factors, Ahmad said he thinks whistleblowers will be protected most of the time, noting the balancing test has to be fairly one-sided for an accused company to prevail.
A whistleblower-friendly decision by the U.S. Department of Labor over the summer further supported employees who take confidential information for whistleblowing purposes, after an administrative law judge ruled that a former Celanese Corp. employee should be afforded whistleblower protection even though he took documents containing personally identifiable information, including employee Social Security numbers.
The ALJ found the ex-Celanese worker’s sole purpose in taking the documents was to support his whistleblower complaint, and as such, his actions were protected under the Sarbanes-Oxley Act.
“The defense bar, I think, is greatly troubled by this decision,” Clark said.
Jay P. Holland, a principal at Joseph Greenwald & Laake PA, said courts have been hesitant to enforce private confidentiality agreements as part of counterclaims against relators in FCA cases, and for good reason.
He cited a Washington, DC, federal court’s ruling in U.S. ex rel. Head v. Kane Co., in which the court found that enforcing a contract that would require a qui tam plaintiff to hand over documents needed at trial to the defendant under investigation would unduly frustrate the purpose of the FCA.
“The driving purpose and force of the FCA is to encourage, not discourage, employees to come forward with evidence of fraud against the government,” Holland said. “So, courts have stated clearly that enforcement of these private agreements not to disclose ‘trade secrets’ or ‘documents’ is void as a matter of public policy.”
However, Nicholas Woodfield of The Employment Law Group PC cast a whistleblower’s protection against such claims as being a bit more up in the air, saying much depends on timing and the employee’s current status.
If a whistleblower obtains damning information, but doesn’t act immediately, that whistleblower might not be protected.
“If you’ve got this material and you give it to the U.S. attorney straight away, arguably in that case you’ll be insulated, if it’s on point and very focused,” Woodfield said.
He added that it’s beneficial if a whistleblower is still working at the target company, saying a relator is typically in better shape in that case than if they use the information when they’re not allowed to have it.
Ultimately, Woodfield said businesses are in a very reactive situation, with the success of such counterclaims depending on the degree of care taken by the whistleblower.
“I don’t think there’s a single court that ever said an employee cannot take evidence of fraud to the U.S. attorney. The question then becomes: What is responsible behavior on the part of the employee?” Woodfield said. “It’s about respecting obligations they have versus what minimum disclosure is necessary to substantiate an FCA claim.”
–Editing by John Quinn and Katherine Rautenberg.
Today, nine national and local groups who claim to “promote animal welfare” have filed a brief with the Maryland Court of Special Appeals arguing that pet owners should not be able to seek any form of emotional damages when someone unlawfully and intentionally harms or kills their pet.
Signatories to the anti-animal welfare brief include the following: American Kennel Club Cat Fanciers’ Association, Animal Health Institute, American Veterinary Medical Association, National Animal Interest Alliance, American Pet Products Association, American Animal Hospital Association, Pet Industry Joint and Advisory Council, and Maryland Veterinary Medical Association. A copy of the brief is available upon request.
The brief was filed in a case in which a police officer was caught on video intentionally shooting a chocolate Labrador Retriever in a family’s front yard. The video of the shooting can be found here: http://www.baltimoresun.com/news/maryland/crime/blog/bal-frederick-county-jury-awards-couple-620000-for-pet-shot-by-police-20120403,0,7588027.story Further details of the shooting and case can be found here: http://www.prweb.com/releases/2012/4/prweb9378041.htm After viewing the video and finding that the shooting was intentional and unlawful, the jury awarded $620,000 to the family of the grievously-injured dog on April 2, 2012. This figure is believed to be the highest ever awarded to a pet owner for injury to a pet. The defense appealed and today’s brief was filed in support of the shooter.
The case was tried for the pet owners by Cary J. Hansel and Rebekah Lusk. Mr. Hansel had this to say about today’s filing: “It is an outrageous irony that groups claiming to promote animal welfare would file this brief. The award has nothing to do with honest mistakes by veterinarians attempting to treat animals. This case involves intentional misconduct – the purposeful unjustified shooting of a defenseless pet Labrador in her own yard. Yet, certain misguided members of the veterinary and animal welfare community are saying that even the worst purposeful animal abuse should never lead to emotional damages for pet owners. We call on the membership and donors of these associations to contact their leadership and demand that the brief be withdrawn. For our part, the family and their lawyers will fight to secure the rights of pet owners and the welfare of our animal family members.” Ms. Lusk added that, “These organizations are completely out of touch with their members. Every pet owner knows that a pet is part of the family and not just property.”
Greenbelt, MD (March 18, 2014) – Joseph, Greenwald & Laake, P.A. is pleased to congratulate attorneys, Jay P. Holland, Walter E. Laake, Jr., Timothy F. Maloney, Brian J. Markovitz on being recognized as 2014 “Local Litigation Stars” for Plaintiffs law by the rankings guide, Benchmark Litigation. This is the second year in a row that all five have received the “Local Litigation Star” acknowledgment.
Benchmark Litigation also ranked Joseph, Greenwald & Laake, P.A. “Recommended” for Plaintiffs law in the practice areas False Claims Act (Whistleblower), General Commercial and Personal Injury.
“The firm is thrilled to have this group of attorneys recognized for the second year in a row,” said Burt M. Kahn, the firm’s managing president. “We are honored to have this high-profile recognition of our hard work and successes on behalf of our plaintiff-litigation clients.”
Holland is a principal and chair of the firm’s Labor & Employment and Whistleblower practices. He has broad experience in Whistleblower cases, commercial law and other civil matters. He also counsels clients in individual and class action cases involving gender and race discrimination and sexual harassment, violations of the wage and hour laws, and wrongful termination. Additionally, he co-chairs the Employment Law Section of the Prince George’s County Bar Association and is active in the Employment Law sections of the Maryland State Bar Association and American Bar Association.
Laake is a principal and a founding member of the firm and served as managing partner for more than 25 years. His litigation practice focuses on the legal matters pertaining to accidents, personal injury, traumatic brain injury, medical malpractice, premises liability, product liability and professional negligence. Laake has practiced law for more than 30 years and has helped more than 1,000 clients with all types of personal injury claims.
Maloney is a principal in the firm’s Civil Litigation Group. His practice focuses on criminal and civil issues in judicial matters as well as administrative proceedings. He has represented clients in a wide variety of complex actions, including civil rights, employment discrimination, Whistleblower cases and high-stakes business litigation. Maloney is a fellow of the American College of Trial Lawyers. In 2011, the Maryland Association for Justice named Maloney a “Trial Lawyer of the Year.” He serves on the Rules Committee of the Court of Appeals and the Maryland Appellate Nominating Commission.
Markovitz is a principal in the firm’s Civil Litigation Group and focuses his practice on civil litigation, employment, labor and Whistleblower cases throughout the country. He has presented oral arguments before the Maryland Court of Appeals and Maryland Court of Special Appeals, in the United States Fourth Circuit, in the District of Columbia and several other states, and administrative agencies. Additionally, Markovitz has arbitrated labor cases and has been before the District of Columbia Public Employees Relations Board.
Rockville, MD—David Bulitt says that any spouse considering divorce needs to be very careful about whom they pick as their attorney.
“This is not like hiring an electrician or a plumber,” Bulitt explained in a recent laws.com interview. “This is someone who you have to be comfortable talking to, listening to and trusting their judgment. You have to be willing and able to work with this person through one of the toughest times in your life. Who’s going to be in the captain’s chair? You wouldn’t hire Joe Smith because he is a friend or was in a magazine. Hire him because you trust his judgment”
Bulitt says that he originally went into family law because he wanted to be a trial lawyer, and at the time when he went into practice, divorce cases went to court almost all the time. “Now I don’t try nearly as many cases, due to alternative forms of conflict resolution,” he says.
This switch to alternative dispute resolution has led to fewer trials, but is often better for divorcing couples, according to Bulitt. “I used to revel in going to trial, but now people who don’t want their names in the newspaper and don’t want reporters rummaging through their lives come to me,” he says. “I do the best I can to move them through as painlessly as possible, so that their private lives don’t become public.”
For Bulitt, this philosophy has led to a number of awards and accolades. For more than a decade, he is included as one of the top divorce lawyers in the Washington DC area by Washingtonian Magazine, Best Lawyers in America and other publications. He is also recognized as one of the best in his field by Super Lawyers.
When it comes to one of the latest trends in divorce law today—collaborative divorce—Bulitt says that he’s something of a skeptic. “I took the course and am certified. Personally though, – and some of my friends who do it aren’t going to like this,” he explains, “but I can do the same work in the same way but without all the ropes and chains of a “collaborative divorce”. If you know how to settle a case, you don’t need the whole collaborative framework to get it done. I find that a collaborative divorce is often more costly than a more traditional model. In fact, some of the clients who have paid me the most were those whose collaborative divorce failed and their lawyer referred them to me to litigate the case.”
In the collaborative process, the couple has to agree not to go to court. “If the process falls apart, the lawyer leaves, and you have to get a new lawyer,” Bullitt says, which makes collaborative law a costly option for anyone who suspects that their disputes may need to be resolved through trial.
While divorce trials still happen, Bullitt says that they’re much less common, thanks to new approaches to settling divorce cases. “There are now a lot of structures in place that try to get people to settle before getting to a judge. You find a lot more of these instances in family cases where there are individuals with high net worth,” he says. “Folks who have worked hard for their money tend to be more pragmatic. They can understand the risks of letting a judge make decisions about their marriage, and these folks see utility in deciding their own destiny.”
Due to changes in family laws, Bulitt says that couples with custody disputes in Maryland today can expect their case to take less time than it may have in the past. “The time it takes to litigate a custody case has shortened over the years. It could take two years to litigate back in the day—now we have a general timeline here in Maryland that the entire case has to be done by the time a year has passed.”
15 JGL Lawyers Named As Tops In Their Fields
An unprecedented fifteen firm lawyers were recently honored as “Super Lawyers” or “Rising Stars” in the legal community.
Super Lawyers identifies itself as a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.
Congratulations to the following firm lawyers who were listed as “Super Lawyers” or “Rising Stars”:
David M. Bulitt – Family Law, Business Litigation and Personal Injury
Jeffrey N. Greenblatt – Family Law
Andrew E. Greenwald – Personal Injury Plaintiff: Medical Malpractice, Personal Injury
Darin L. Rumer – Family Law
Reza Golesorkhi – Family Law
Bethany Flanders – Real Estate, Estate Planning & Probate
Matthew M. Bryant – General Litigation, Appellate
Walter E. Laake, Jr. – Personal Injury Plaintiff: General, Personal Injury Plaintiff: Medical Malpractice, Personal Injury Plaintiff: Products
Burt M. Kahn – Personal Injury Plaintiff: Medical Malpractice, Personal Injury Plaintiff: General
Steven M. Pavsner – Personal Injury Plaintiff: Medical Malpractice, Business Litigation, Professional Liability: Plaintiff
Timothy F. Maloney – General Litigation, Criminal Defense: White Collar, Personal Injury Plaintiff: General
Steven B. Vinick – Personal Injury Plaintiff: General, Personal Injury Plaintiff: Medical Malpractice, Criminal Defense
Veronica B. Nannis – General Litigation, Civil Rights/First Amendment, Health Care
Cary J. Hansel – Civil Rights, First Amendment, General Litigation, Appellate
Case of the trespassing toddler heads to trial
Top court sends pool-fence case back for trial
Maryland’s top court has revived a lawsuit by the family of a Burtonsville toddler who suffered severe brain damage after nearly drowning in their apartment complex’s swimming pool, unanimously rejecting the landlord’s argument that it owed no duty to the “trespassing” child because the pool area had not opened for the day.
The Court of Appeals, in sending the case back for trial, noted that Christopher Paul was a 3-year-old child when he allegedly entered the pool area through a gap in the fence in June 2010.
The landlord, Country Place Apartments, denied allegations of negligence; however, it also argued that state and Montgomery County regulations on pool fences did not create any duty to Christopher because they do not expressly protect trespassers.
“The fundamental danger of a pool is posed by its water,” Judge Sally D. Adkins wrote for the court. “And it hardly needs saying that, without a fence that bars entry by a three-year-old child, the pool, located in the midst of 300 residential apartments, poses a risk which jeopardizes the health or safety of such a child, who might accidentally access the pool unsupervised. The quality and compliance of the fence is simply crucial to safety.”
Timothy F. Maloney, the family’s appellate attorney, hailed Monday’s decision.
The fencing regulation is “designed to protect unwary trespassers under the age of 5,” Maloney said. “This is a regulation targeted to protect children who have no reason to know better.”
Margaret Fonshell Ward, the landlord’s attorney, stated in an email sent from her phone that she was in court and unavailable to comment on the decision. Ward is with Ward & Herzog in Towson.
Montgomery County Circuit Judge Louise G. Scrivener had granted summary judgment for Community Place Apartments on July 17, 2012, finding that the landlord owed no legal duty to the trespassing child.
The intermediate Court of Special Appeals revived the lawsuit on March 25, 2013, holding that the state and county regulations imposed a duty on the landlord “for the protection of the swimming public.” Community Place Apartments then sought review by the Court of Appeals, which heard argument in the case on Feb. 7.
The case also tested the scope of state and county regulations, enacted in 1997, that require pool fences to have entrances that would “not allow passage of a sphere four inches in diameter.” The regulations meet the American National Standards Institute’s Model Barrier Code for swimming pools, which was designed to prevent entry by children up to 5 years old, the high court said.
No grandfather clause
Country Place Apartments argued that the 1997 regulations should not apply to the apartment complex’s pool, as it was built in 1978. But the court rejected that argument, saying the regulations contained no “grandfather” exclusion.
“Were we to hold otherwise, the targeted safety objectives of the Model Barrier Code, incorporated by reference into [the Code of Maryland Regulations], would be completely ignored,” Adkins wrote. “Moreover, the primary concern of the Model Barrier Code, which is to prevent the drowning and near drowning of young children, would be of no concern to all the owners of recreational pools that, through mere historical accident, were built before COMAR’s adoption. This result would be illogical, and we reject it.”
The decision is a victory for protective regulation over judge-made rules, said Maloney, of Joseph, Greenwald & Laake P.A. in Greenbelt.
“The common law concepts such as trespass do not apply where the duty is purely regulatory in character,” he added.
According to the lawsuit, Christopher and his 10-year-old half-brother Andre were playing outside on June 13, 2010. Christopher threw a ball down a hill and Andre gave chase.
When Andre returned, Christopher was gone. Andre rushed to get Alicia Paul, the boys’ mother, who searched the parking lot and then went to the pool gate.
She saw Christopher’s shoes and shirt on the pool deck just inside the gate just as lifeguard Vitalie Planadeala was arriving for duty.
He opened the gate, and the mother ran in and found Christopher submerged in the pool, according to the lawsuit filed April 25, 2011.
The lifeguard pulled the boy out and rescue efforts began.
The family alleges the six-foot high fence around the pool had several holes and gaps through which a toddler could easily fit.
Country Place Apartments denies the allegations.
ADKINS
WHAT THE COURT HELD
Case:
Blackburn L.P. d/b/a Country Place Apartments v. Paul, CoA No. 55, Sept. Term 2013. Reported. Opinion by Adkins, J. Argued Feb. 7, 2014. Filed April 28, 2014.
Issue:
Did the Court of Special Appeals improperly conclude that state and county pool-fence regulations created a duty from a landlord to a 3-year-old tenant who trespassed by entering the pool area before it opened for the day?
Holding:
No; affirmed. The landlord owed a regulatory duty to the toddler with regard to the fence around the pool.
Counsel:
Margaret Fonshell Ward for petitioner; Timothy F. Maloney for respondent.
RecordFax #14-0428-20 (33 pages).