By Emily Malarkey

I write this, my final President’s Message, on the day after the 2023 Legislative Session has come to an end. Although the session did not end the way we hoped, I have to pause for a minute and remember that perfection and excellence are two different things. The legislative year may not have ended perfectly, but we have continued to promote our tradition of excellence, and in doing so, have achieved much on behalf of our members, clients, and the civil justice system.

The MAJ Board has been diligently working towards goals established at our last Strategic Planning Retreat. We have accomplished a personal goal of mine: hiring an in-house Legislative Director to ease the burden on our volunteer legislative team and strengthen our legislative advocacy program. We continue to excel in offering quality and diverse educational programming for our lawyer members. Our growing-ever-more-robust Minority Caucus has made positive strides towards increasing minority participation in our organization, while our Women’s Caucus continues to thrive.

On the legislative side, this year’s priorities spanned a wide gamut. MAJ’s first piece of priority legislation was a bill that authorized payment for Workers Compensation attorneys representing injured workers in successful “medical only” hearings. The goal of the bill was not only to help injured workers obtain representation, but also, to disincentivize insurers from saying “no” to medical treatment in the first place. Unfortunately, the bill did not pass, but our efforts will continue in the future.

Our second priority was a bill to make Enhanced Uninsured Motorists’ automobile insurance “opt in” for all Maryland drivers (similar to the requirement for Personal Injury Protection). Although EUIM has been available to Maryland drivers for several years, most drivers do not know that it exists. The bill was met with opposition, but we were nevertheless able to pass a version that requires EUIM to be “opt in” for new policies issued in the next five years, as well as requires the Maryland Insurance Administration to conduct a study on the impact of converting EUIM to “opt in” for all policies in the future.

Our third proactive piece of legislation was a bill to render void as against public policy exculpatory clauses in waivers to participate in commercial recreational activities. Naturally, the goal of this legislation was to hold commercial recreational facilities to the same standards of due care and safety applicable to other businesses, and to ensure that participants injured as a result of negligence have the right to pursue a claim in court. Although the bill enjoyed tremendous bipartisan support, and almost passed in the final hours of session, powerful interests were able to kill it for the time being.

In addition to these priorities, our volunteer legislative committee members, led by our indefatigable Chair Kelly Donohue, testified in Annapolis in support of many other bills relevant to our work – including bills to abolish the cap on non-economic damages in personal injury claims, to allow persons convicted of felonies to serve on juries, and to permit private citizens to pursue False Claims Act cases if the State elects not to.

Finally, as usual, we played a lot of “defense.” We succeeded in preventing medical malpractice tort reform bills from being pursued by the hospitals and doctors’ insurance companies. We opposed bills granting civil immunities in a variety of contexts, and testified against legislation to add a commercial developer to the list of entities protected by the Local Government Tort Claims Act.

In sum, we won some battles, and we lost others. The war, however, is far from over, and rest assured, MAJ will continue to fight excellently.

I was recently reminded not to let the losses overwhelm me when I received an excited phone call from a former client. Last year, I resolved a case on behalf her husband, a 60-year old man who now lives in a persistent vegetative state from a cardiac arrest he suffered while hospitalized in 2018. Although he breathes on his own, this man cannot walk, talk, feed himself, or meaningfully participate in life. After his injury, he was transferred to a nursing home, where he has resided for more than four years – including through the COVID emergency. His loving wife was forced to stay away from his side for well over a year during lockdown. She despaired.

My client was calling to share that she was finally about to break ground on an addition to her house that will allow her husband to come home to live with her. It is not the perfect retirement she hoped for, but to see and touch him every day, whenever she wants, will now be enough.

Clients like these are the reason we fight the battles. Their ability to persevere in the face of adversity, to find joy even in tragedy, and to love despite catastrophic loss, inspires us. It reminds us not to take a single day for granted. To say what we believe, even if it is not popular. To show up and to try hard. To appreciate those who fight nobly along our sides.  

And so I thank you, the members of this amazing organization, for fighting with me. For educating and supporting each other. For your advocacy in the courtroom on behalf of your clients. For showing up in Annapolis in support of what is just. For fighting the good fight.

The war will never be over, and the end will never be perfect. But we will be excellent trying to get there together.

Biography

Emily C. Malarkey is a graduate of the University of Maryland School of Law and a partner at Bekman, Marder, Hopper, Malarkey & Perlin, LLC in Baltimore. She joined the firm in 2006 after completing an appellate judicial clerkship for the Honorable Sally D. Adkins on the Court of Special Appeals. Since then, she has developed a busy practice in the areas of medical negligence, wrongful death and other catastrophic injury. Ms. Malarkey has tried many complicated medical negligence trials, including three with verdicts in excess of $2 million. She also has represented clients in numerous appeals that have gone on to create published law and has been named a Rising Star in every edition of Maryland Super Lawyers since 2010. In addition, to serving on the Board of Directors of MAJ, she is also a member of the Maryland State Bar Association's Appellate Practice Committee. She lives in Timonium with her husband and two children and in her spare time, pretends to be a runner and aspiring chef.