By Michael J. Winkelman

Oh Maryland, My Maryland, Why Hath Thou Forsaken Me?

Why does Maryland have the worst collective tort law in the country? For years, I have pondered this question. Why does Maryland, an allegedly progressive state, consistently prioritize corporate interests over the constitutional rights of its citizens? I have contemplated this for so long I have a list on a whiteboard in my office with years of now faded scribble.                                          

I acknowledge this statement is prone to hyperbole. As the kids would say, this looks like “clickbait.” So, allow me to justify this statement through illustration.

1. Caps - Maryland was the first state in the country to adopt general non-economic damages caps. We’re number one! We remain one of only eight states in the country, and the only state on the east coast, with general non-economic damages caps.

2. Contributory Negligence - Maryland is one of only four states in the country that follows the doctrine of contributory negligence.

3. Limited Voir Dire - Maryland is one of only five states that employs “limited” voir dire, preventing questions that seek to uncover implicit biases harbored by potential jurors.

4. Dram Shop - Maryland is one of only eight states that does not recognize dram shop liability.

5. Loss of Chance - Maryland is in the small minority of states that do not recognize loss of chance in medical malpractice cases.

6. Remittitur Without Additur - Maryland recognizes remittitur but does not recognize additur.

7. Bad Faith - Maryland has no legitimate actionable bad faith law.

8. Immunities - Maryland has more immunities than I have word count.

9. Punitive Damages - Maryland technically allows punitive damages, but the burden of proof is so nearly unachievable that instances of punitive damages being awarded and sustained are statistically insignificant.

10. The median personal injury jury verdict in Maryland is $12,800, a byproduct of myriad tort limitations in our civil justice system.

This list is not exhaustive, rather it is representative. It is representative of a systemic and intentional infringement on the constitutional rights of all Marylanders. People often forget that the right to a jury trial in civil cases is a constitutional right. It is as much a constitutional right as free speech, free assembly, and the right to bear arms. Yet, courts and legislators in Maryland trample this constitutional right with abject impunity. 

And just when we thought it could not get worse, this year Maryland enacted the apex of tort reform - caps on counsel fees in private causes of action. When Maryland passed the Pedophile Protection Act (If this term offends you, I ask you to place yourself in the shoes of victims of child sexual abuse. Which is more offensive - telling victims of child sexual abuse that the repeated, intentional sexual abuse that ruined their lives has been economically quantified by legislators, or calling legislation by a name which accurately denotes its true implication?) this past session, it enacted, for the first time, a law that simultaneously limits recovery for victims of sexual abuse, limits counsel fees and limits victims to a single payout no matter if they were sexually abused one time or hundreds of times - with no such limitation on the perpetrators of sex abuse.

Maryland has thus become the safest place for child sex trafficking in the country. If you are a hotel that rents rooms used for child sex trafficking, Maryland is the place for you. We have no limits on corporate profits, and your downside risk for allowing sex trafficking is easily quantifiable. Maryland is a place where pedophiles can rest assured their reckoning will be capped, reduced and neatly packaged to avoid any real disruption to their finances. I know our officials frequently speak about increasing tourism, but is this really the type of tourism we want?

This is why the work of MAJ is so important. We are the only voice fighting for the preservation of the civil justice system in Maryland. Our fight is solitary, and difficult, but the constitutional rights of Marylanders must be protected. So, we fight to protect them.

What can we do?

Educate

We must educate the public about these tort law limitations. An overwhelming majority of Marylanders are unaware of the above limitations, with over 80% having never heard of “the cap” on non-economic damages. Public sentiment disproportionately favors our positions on all the above issues. We must let the citizens (i.e. electorate) know how their rights are being restricted and motivate them to act.

Advocate

We must continue our advocacy in the legislature and in the courts. We must continue to advocate in Annapolis to protect against further restrictions on the rights of Marylanders and to eliminate bad laws. We must also advocate in the courts and court-appointed committees to ensure access to civil justice in Maryland is more than a catch phrase.

Elect and Appoint

Next year is an election year. We need to work to elect pro civil justice legislators in our state. We also need to encourage the appointment of civil justice advocates to the bench. There has been, arguably, one plaintiff attorney appointed to either appellate bench in Maryland in my practice lifetime (26 years). Representation is vital to the fair administration of justice.

We fight not for ourselves, but for the constitutional rights of all injured persons in Maryland. Thank you, if you are part of the fight. And if you have not yet joined MAJ to take part in the fight, we encourage you to join and be active. We need your help. Your clients need your help. Thank you.

Biography

Michael J. Winkelman of McCarthy, Winkelman & Mester, LLP practices civil litigation in state and federal courts throughout Maryland and select other jurisdictions, having tried over one hundred cases to verdict before judges and juries. He has extensive appellate experience having argued cases in front of the United States Court of Appeals for the Fourth Circuit, the Maryland Court of Appeals and the Maryland Court of Special Appeals.