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Motion to Sever Response

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

Marty Johnson,
– Plaintiff

v

Lary J. Stevens
– Defendants

CASE NO.: 05-C-06-6311

Plaintiffs’ Opposition to Defendants Stevens & Jackson, LLC and Larry J. Stevens Motion to Sever and Stay Legal Malpractice Claims

I. Introduction

This action stems from personal injuries sustained in Virginia by Plaintiff Marty Johnson on August 13, 2012, when a steel truss fell from a truck bed and landed on Plaintiff.

Plaintiff’s claim is essentially twofold: (1) Plaintiff’s claim against the truck driver and related entities, which is essentially a legal negligence claim against three individual lawyers and two law firms premised on their failure to file a meritorious negligence claim within the statute of limitations period against the truck driver and other related entities and (2) a claim against the steel truss manufacturer and fabricator, Brookfield. With respect to the legal malpractice claim, there is not expected to be a dispute that the statute of limitations was missed; instead, the legal malpractice defendants are expected to assume the role of the truck driver.

The Stevens Defendants position is that the case must be severed because there are different legal issues for the jury to resolve. Yet they cite not a single case severing any Maryland case under any circumstance, much less facts analogous to the instant case. Plaintiff complains of injuries suffered by multiple parties. Indeed severing Plaintiff’s claim against multiple defendants is disfavored under Maryland law. In Maryland the movant must prove, as stated by Rule 2-503, that severance of Plaintiffs claims would be in furtherance of convenience or to avoid prejudice. In fact, Plaintiff would suffer both inconvenience and prejudice if these cases were severed. Defendant has made no showing of prejudice or inconvenience outside the Aprejudice and inconvenience@ of answering the claims of failing to file a claim within the statute of limitations.

II. The Standard to Sever These Trials

Maryland Rule 2-503(b) states: Separate Trials. — In furtherance of convenience or to avoid prejudice, the court, on motion or on its own initiative, may order a separate trial of any claim, counterclaim, cross-claim, or third-party claim, or of any separate issue, or of any number of claims, counterclaims, cross-claims, third-party claims, or issues.@ This Maryland Rule affords the Court the means to structure the determination of disputed issues, so as to ensure the more efficient administration of judicial resources and to avoid untoward prejudice to any party or parties. Connor v. Celanese Fibers Co., 40 Md. App. 452, 459, 392 A.2d 116, 120 (1978) (applying predecessor rule, Rule 501(a)). Interestingly, the Stevens Defendant do not cite this rule in their motion.

III. Defendant’s Claim that Defendants Cannot be Found Negligent Until the Plaintiff has Litigated Against the Other Defendants is False

The core of the Stevens Defendants’ argument is found in Paragraph 17 of their motion where they contend that “attorney Defendants cannot be found negligent until such time as Plaintiffs have litigated the personal injury action and established that they would have recovered for their personal injuries but for the alleged negligence of the attorney Defendants.” There is no evidence to support this argument. Plaintiff alleges that all Defendants are substantial contributing causes to his injuries. Plaintiff is not bringing a claim against the truck driver in the instant litigation; instead, its claim against the legal malpractice defendants is in place of the truck driver.

Accordingly, the outcome of the personal injury case without the legal malpractice defendants does not speak to their culpability of these defendants. If these cases were severed and Plaintiff to lose the claim against the steel truss manufacturer and fabricator, Plaintiff would then be required to try the same damages cases against the legal malpractice cases.

In sum, the argument offered by the Defendants is the same argument that could be made by Brookfield in this case or any other defendant in a claim where plaintiff alleges that two or more defendants are substantial contributing causes of a plaintiff’s injuries. The Stevens Defendant’s argument is “you go ahead without me – come back if you need me after your trial.” Every defendant would prefer this option. But their preference does not give them a right of severance under Maryland law.

Certainly, if the statute of limitations had not been missed, the claim for Plaintiff’s injuries would go forward in one case against the truck driver and the steel trusses manufacturer and fabricator. Essentially then, the Defendants claim that trial lawyers should be treated differently from other tort defendants, and that there should be a proliferation of mini-trials when lawyers are accused of tortuous conduct.

IV. The Plaintiff Would Suffer Prejudice and Inconvenience by Severance

While the Defendants failed to establish any legally cognizable prejudice as a result of hearing together Plaintiff’s claims against all defendants allegedly responsibly for his injuries, there would be great prejudice to the Plaintiff. First, severance would be a tactical boon to all defendants. The steel truss manufacturer and fabricator would vigorously point to the empty chair of the truck driver if these claims were not tried together, leaving the jury wondering why a claim had not been brought against the truck driver as well.

The permutations of this prejudice are boundless. The jury might give a compromise verdict, in which case Plaintiff would not get the full value of his damages. After a compromise verdict, Defendants have already made clear in its motion it would claim this is the full measure of Plaintiff’s damages. Worse still, the jury could assume a huge verdict or settlement against the truck driver and award no damages in the fabricator suit. Again, using severance as both a sword and a shield, the legal malpractice defendants would seek some res judicata effect from such a finding.

Second, Plaintiff has a complicated medical case involving many different injuries, requiring multiple experts. To put the seriousness of the case in some context, the workers’ compensation lien is approximately $500,000. Severance of these claims would cause each of them to have to be brought to court twice to testify to a pattern of facts and opinions which are common to both the factual aspects of the legal malpractice claim and the case against Brookfield. Ostensibly, he would also be deposed twice, as would every damage witness. This would double plaintiff’s costs. Severance would cause inconvenience and prejudice to the parties, especially to plaintiff and his medical witnesses, and would undermine plaintiff’s ability to contest the defense case. In light of the fact that this duplication would burden both witnesses and jurors as well as waste judicial resources, mandatory severance is undesirable. Yet plaintiff relies upon the original plaintiff’s experts as well as the prior actions.

V. Conclusion

These are important reasons to try the case as a single, coherent whole, and Plaintiff urges the Court not to undermine that. Severance is an extraordinary procedure and cannot be justified unless it will substantially further the ends of judicial economy, prevention of delay and prejudice, and otherwise serve the ends of justice. This standard has not been met in this case by the Stevens Defendants and, accordingly, this motion should be denied.

(Footnote to this case: We lost this motion but the case later settled shortly after we lost for $1.31 million.)

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