DC Trial
Trial Lawyers Association of Metropolitan Washington, D.C. | 2015 volume 3
President’s Message
Joseph Cammarata | TLA-DC President 2015-2016
Thank you for the wonderful oppor- their demands of liberty from the English crown, and its core concepts
tunity to serve as your President. It is have been given concrete meaning in our constitutional framework. Such
certainly an honor and a privilege to concepts include that (1) no one is above the law (the District Court Judge
be able to do so. I appreciate the trust in the case of Paula Jones v. Clinton, in denying the president’s request to
and confidence you have in my ability delay the lawsuit, noted that our form of government asserts, as did the
to lead this well-respected organiza- Magna Carta, that the sovereign is subject to the law), and (2) no person
tion. I will not let you down. shall be deprived of life, liberty or property without due process of law ( the
Fifth Amendment).
It is always important to step back and
reflect on the essential “first princi- However, there is a lesson for us to learn today, from the history of the Magna
ples” which serve as the bedrock of the precept that we are a nation sub- Carta. One lesson is the importance of rules of justice that protect the rights
ject to the rule of law. When we think of the foundation of our system of the people against the whims and the desires of the powerful. But the his-
of courts and justice, we often hearken back to the United States Con- tory of the Magna Carta also teaches us that we need to defend those rules
stitution. But look back hundreds of years earlier, and there’s another of justice, and to remain on constant vigilance that they be upheld. There is
foundational document that some regard as the origin of legal rights no guarantee that any law will be permanent or that its meaning will not be
among all people, not just Americans. That document is the Magna construed so as to restrict, rather than broaden, rights of the public.
Carta, which was first signed in 1215. This year we celebrate its 800th
anniversary of the establishment of the rule of law. So what does this have to do with our practice or the Trial Lawyers Associ-
ation, you might be wondering? The simple answer is a lot. Today, power-
The Magna Carta was a breakthrough because it may have been the first ful people and powerful companies try every day to change the rules of the
time that people made a king promise, in writing, that there were certain courts for their own benefit, and to take advantage of the people and our
rights he must respect, and certain powers that he could not exercise. This clients by limiting or removing their access to complete justice in the courts.
was the birth of the idea of a government of laws, not men – that there are Caps on damages, forced arbitration, shortened statute of limitations, and
certain principles of justice that we all live by, instead of serving the whims limitations on causes of action are a few of the anti-justice tactics being
of powerful people. pushed by those who would manipulate and hijack our system of justice.
Perhaps the most significant part of the Magna Carta to lawyers like us, What can we do about it? Now we have to play the same roles as the origi-
are the 39th and 40th Clauses. Translated into modern English, they state: nal defenders of the Magna Carta. We must each day stand up for and
“No freemen shall be taken or imprisoned, or dispossessed or outlawed or protect the rights of our clients to obtain full and complete justice. Compla-
exiled or in any way ruined, nor will we go upon him nor send upon him, cency or a nonchalant attitude that things seem ok, is a sure fire way to lose
except by the lawful judgment of his peers or by the law of the land”, and whatever footing we presently have in preserving access.
“[t]o no one will we sell, to no one will we refuse or delay, right or justice.”
These were promises by the King not to interfere with the administration You can further that effort by encouraging others to join the Trial Law-
of justice in the courts of his kingdom, for his own advantage. The courts yers Association so that we can grow our membership and be a force to
were to operate freely, to dispense justice through due process of law. be reckoned with. You can join a committee and play an active role in our
fulfilling our mission of advocating for access to justice, bettering the com-
But the rights established in the Magna Carta were not secured with one munity in which we live and work, and providing education and support
stroke of a pen. Within about three months, the King of England repudi- for our members.
ated the Magna Carta. War broke out in England, and it was only through
many years of further struggle that the kings of the era finally backed down In short, we need your active participation. After all it is your profession,
and accepted the Magna Carta as law. your business, and your organization. I look forward to working for all of
you in the year to come, along with the members of the Executive Commit-
The Founders of our country looked to the Magna Carta as a model for tee; David Haynes, Chris Nace, Paul Cornoni, and Julie Mitchell.
n table of contents
OFFICERS & BOARD OF GOVERNORS President’s Message.....................................................................1
2015-2016 Judges Dinner..............................................................................4
Sponsor Appreciation Cocktail Party......................................6
Officers Leaders Club Members............................................................10
Sustaining Members.................................................................12
Joseph Cammarata, President Firms with 100% Participation...............................................14
David Haynes, President-Elect Shoulder Anatomy and Injuries.............................................17
Drug and Device Litigation Update......................................20
Chris Nace, Vice President The ABLE Act: Will it Replace the Special Needs Trust
Paul Cornoni, Treasurer for Personal Injury Settlements?............................................23
Julie Mitchell, Secretary Thank You to Our 2014-2015 Chairs.....................................25
2015-2016 Dinner Meeting and Seminar Schedule..............26
Denis Mitchell, Past President 2014-2015 Legislative Update....................................................................27
Recent Cases..............................................................................28
Board of Governors In Memoriam: Edward Charles Bou.....................................36
TLA-DC Sponsor Family.......................................................38
Justin Beall | Thomas C. Cardaro | Paulette Chapman Membership Application.........................................................41
Jacqueline Colclough | Linda M. Correia | Keith Donahoe
Jeffrey Downey | Caragh Fay | Kevin Finnegan | George Garrow
David Ginsburg | Jack Gold | Iris Green | Steven Kaminski
Frank Kearney | John Lopatto, III | Charles Meltmar
Craig Miller | Melinda Maldonado | Seth Price | Archie Rich
Christopher Russo | Sidney Schupak | John Sellinger
Dan Singer | Greg Smith | W. Scott Sonntag | Jerry Spitz
Eric Stravitz | Matt Tievsky | Keith Watters
AAJ Board of Governors
Caragh Fay, Patrick M. Regan and Patrick Malone
AAJ delegates
Allan M. Siegel, Salvatore J. Zambri and
Karen Evans (Minority Caucus)
executive director legislative analyst
Mary Zambri Christina Figueras
DC Trial is a quarterly publication of the Trial Lawyers Association of Metropolitan Trial Presentation Specialists
Washington, D.C. Its purpose is to provide timely, informative and practical
information to the trial bar. The opinions and statements expressed in articles reflect the Helping you tip tHe scales of
views of the authors and do not necessarily represent those of TLA-DC. Publication of Justice in your client’s favor ©
any advertising does not imply endorsement of any product or service. DC Trial is
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Material published in DC Trial remains the property of TLA-DC and may not be 202.393.2050
reproduced or used out of context without prior approval of TLA-DC and proper credit
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Please direct any correspondence or editorial materials to:
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Judges Dinner a Great Success President Joe Cammarata
welcomes everyone
Once again our annual Judges Dinner was well attended and received by our mem-
bers. We were fortunate to have three accomplished judges from the DC Superior
Court join us and share their insights from the bench.
Judges Michael O’Keefe and Robert Okun gave a great primer on what attorneys
should and should not do in court and in pleadings. They stressed that the court does
not enjoy seeing opposing attorneys launching personal attacks in court or in written
documents. The judges just “want the facts” – no adjectives are necessary.
Presiding Judge Judith Bartnoff gave a thorough recounting of the new rules in the
DC Court, including the controversial new expert rule.
The judges entertained member questions late into the evening. We were all appreciative
of their willingness to share their time.
Members mingle and network Delicious food The Board of Governors toast Julie Mitchell
during cocktail hour on her upcoming marriage
The Honorable Michael O’Keefe The Honorable Robert Okun The Honorable Judith Bartnoff
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Sponsor Appreciation
Cocktail Party
On a beautiful summer evening sponsors and members gathered for a rooftop party in
honor of our TLA-DC sponsors.
Everyone appeared to be having a wonderful time getting to know each other better
and enjoying the spectacular views of DC.
TLA-DC appreciates all that our family of sponsors does for us and we enjoyed toasting
them.
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Come Help Us Grow
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Wednesday October 21, 2015 Looking for an easy way to help our Association while having fun doing so? Come on
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Your Client Incurred A Brain Injury
How will you present these damages?
TLA-DC Presents:
Brain Injury Symposium
Friday, October 30, 2015
8:30 am - 12:00 noon
Three (3) CLE hours
A brain injury is a challenging injury to Meet your Panel
prove. It is invisible to the eye, yet the
effects are dramatic and life-changing. Dr. William Garmoe, Ph.D., ABPP-CN, Coordinator, Neuropsychology
Services and Director, Neuropsychology Fellowship Program, MedStar National
A brain injury can result from a minor auto Rehabilitation Network and Associate Professor of Clinical Rehabilitation
accident as well as a traumatic event. Medicine and Clinical Neurology at Georgetown University School of Medicine.
Be sure that you are fully representing the Michael V. Kaplen, Esq., DeCaro & Kaplen, LLP, Professorial Lecturer
damages from this elusive injury. in Law, The George Washington University Law School “The Legal Aspects of
Traumatic Brain Injury,” Immediate past chair, New York State Traumatic Brain
Our panel will give a general overview Injury Services Coordinating Council.
of closed head injuries, ranging from
concussions to more severe injuries. Joseph Cammarata, Esq., Chaikin Sherman Cammarata Siegel, a founder
Discussion will include the mechanisms of the Brain Injury Association of DC, he drafted legislation which became the law
of injury, the diagnosis of injury (including in the District of Columbia known as the “Athletic Concussion Protection Act of
neuropsychological testing) and the 2011” enacted to protect youth athletes from the known risks of a concussion.
effects and treatments for such injuries.
Michael Singer, CEO, BrainScope. BrainScope is developing a new
Our panel will then discuss how to present generation of portable, simple-to-use, non-invasive instruments to aid
these injuries. To be covered: Theme of medical professionals in rapidly and objectively providing clinically meaningful
Case; Presenting the Mechanics of TBI; information to aid in the assessment of brain function at the initial point of care.
Jury Selection and Public Perceptions;
Cross Exam Using the Medical Literature; Friday October 30, 2015
Before and After Witnesses; Malingering; Omni Shoreham, Washington, D.C.
Presenting the Plaintiff; and Ethical
Considerations. 8:30 am Breakfast and Registration
9:00 am Program Begins | 12:00 noon Program Concludes
We will conclude with a presentation
of cutting-edge technology designed to Three (3) CLE hours applied for
evaluate brain injuries at the initial point
of care. $145 TLA-DC Member | $165 Non-Member
Register online at www.tla-dc.org or mail a check to
TLA-DC, 1919 M Street NW, Suite 350, Washington DC 20036
Presidents Club Members Leaders Club Members Joyce Notarius
($300/month) Seth Price
Denis Mitchell Archie Rich
••• Julie Mitchell Chris Russo
Michelle Parfitt
Joseph Cammarata Sandra Robinson Sidney Schupak
Harlow Case John Sellinger
Eagle Club Members Ira Sherman
Paulette Chapman ($150/month)
Thomas Fay Dan Singer
David Haynes ••• Greg Smith
Roger Johnson Jerry Spitz
Annie Kaplan Ken Annis Eric Stravitz
Pat Malone Justin Beall Matthew Tievsky
Gerry Mitchell Jacqueline Colclough Ken Trombly
Barry Nace Linda Correia Keith Watters
Chris Nace Keith Donahoe
Jack Olender Jeffrey Downey Executive Club
Pat Regan Caragh Fay
Melissa Rhea Michael Feldman •••
Allan Siegel Marc Fiedler
Jim Taglieri Kevin Finnegan Josh Basile
Sal Zambri George Garrow Andrew Bederman
David Ginsburg Thomas Cardaro
Capital Club Members Iris Green
($250/month) Jack Gold Molly Hoffman
Steven Kaminski Robert Muse
••• Frank Kearney Matthew Nace
John Lopatto Chris Regan
Paul Cornoni Charles Meltmar
Karen Evans Melinda Maldonado Rodd Santomauro
Gerry Holtz Craig Miller Dan Scialpi
Victor Long Scott Sonntag
James Turner
Do you want to become a Leaders Club member? Contact Sal Zambri at [email protected].
Thank you
for being a member
n 10 n
The McCammon Group
is pleased to announce our newest Neutral
Hon. Martin P. Welch (Ret.)
Retired Chief Judge
Circuit Court for Baltimore City
The Honorable Martin P. Welch retired recently after more than twenty-one years of
distinguished judicial service, including ten years as Judge in Charge of the Family
Division and four years as Chief Judge of the Circuit Court for Baltimore City. Prior
to his service on the bench, he spent twelve years in the Baltimore City Solicitor’s
Office, first in the Contracts and Tax, Pensions and Finance Sections and later in the
Corporate Division. A leader in the community, he has served on the boards of numerous
educational, charitable, and business organizations. Judge Welch now brings this distinct
record of dedication and achievement to The McCammon Group to serve the mediation
and arbitration needs of lawyers and litigants throughout Maryland, DC, and beyond.
Dispute Resolution and Prevention
For a complete list of our services and Neutrals throughout DC, MD, and VA,
call 1-888-343-0922 or visit www.McCammonGroup.com
Sustaining Members Annie Kaplan Matthew Peffer
Ronald Karp Pat Regan
Sustaining Members, with a dues payment of $590 per year, Frank Kearney Melissa Rhea
add needed financial support to the mission and services of TLA-DC. Michael Kernbach Archie Rich
Alan Lander Sandra Robinson
We thank them for their generosity. Aaron Levine Benjamin Saulter
Edward Leyden Peter Scherr
Laurie Amell Harlow Case Phillip Federico Bill Lightfoot Jonathan Schochor
Ken Annis Peter Chapin Marc Fiedler Victor Long John Sellinger
Bill Artz Paulette Chapman Joel Finklestein Allen Lowe Richard Seymour
Daniel Barrera Barry Chasen L. Palmer Foret Pat Malone Sam Shapiro
Michelle Bartoli Cain Wayne Cohen James Green Peter Masciola Ira Sherman
Andrew Bederman Andrew Cohen Andrew Greenwald Christian Mester Allan Siegel
Steven Berk Charles Day, Jr. Simba Hodari Robert Michael Kerry Staton
Ben Boscolo Keith Donahoe Gerald Holtz Denis Mitchell Eric Stravitz
Daniel Brown Steven Dorne Howard Janet Gerald Mitchell Kenneth Suggs
William Burgy Karen Evans Roger Johnson Michael Morgenstern James Taglieri
Joe Cammarata Thomas Fortune Fay Steve Kaminski Barry Nace Kenneth Trombly
Ed Norwind John Vail
Joyce Notarius Jay Weiss
Jack Olender J.E. Wingfield
Michelle Parfitt Salvatore Zambri
Leonard Pederson
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Congratulations
To the following firms for having 100% TLA-DC Participation!
The Abelson Law Firm Fay Kaplan Law Schultz & Trombly
Kenneth Annis & Associates Law Offices of Gerald I. Holtz Law Office of Richard T. Seymour
Ashcraft & Gerel John Lowe Shulman, Rogers, Gandal,
Bond & Norman Patrick A. Malone & Associates Pordy & Ecker, P.A.
Cadeaux, Taglieri & Notarius
Cardaro & Peek, LLC Miller Masciola Law Offices of Greg Smith
Chaikin, Sherman, Cammarata & Jack H. Olender & Associates Law Offices of Pam Stuart
Charles C. Parsons & Associates Law Offices of James E. Turner
Siegel, P.C. Law Offices of Joan Wilbon
The Cochran Firm Paulson & Nace Michael Wilson & Associates
Donahoe Kearney Peter Peckarsky, Esquire
Regan, Zambri & Long
Not on the list but should be? E-mail mary@tla-dc.
n 14 n
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– 12th Annual –
DC Trial Lawyers
Open
Thursday October 15, 2015
7:45 am Registration | 8:30 am Shotgun Start
Whiskey Creek Golf Club | Ijamsville, Maryland | www.whiskeycreekgolf.com
This year’s event is going to be special--great new course for The Open, terrific food and beverages during and after the
round, and outstanding. Our Open has become a wonderful annual tradition.
Three things as sure as taxes: 1) when we play in The Open, the weather will be perfect, 2) we always have fun, and,
most importantly, 3) we’ll be helping people--veterans--who are desperately in need of help. It’s not easy to think of
a better way to spend a day. You don’t need to be a great, or even good, golfer to feel good about participating.
All proceeds to be donated to Yellow Ribbon Fund, Inc. (Welcoming Our Injured Service Members Home)
Learn more about this wonderful charity at http://www.yellowribbonfund.org/about-us/
Registration Fee: $110.00 for individual players; $425.00 for a foursome (fee covers Sign up at
greens fee, golf-cart fee, range balls, beverages and snacks on the golf course, www.tla-dc.org
and a full “grand buffet” after completion of play, plus prizes and more)
Shoulder Anatomy and Injuries
By Marie Dauenheimer and Joan Tykco
Board Certified Medical Illustrators, Compel Visuals
Shoulder Anatomy • Labral Tears can occur due to repetitive motion of the shoulder
joint, or trauma, such as a direct blow or a fall.
The shoulder (glenohumeral joint) is located between the upper
limb and the torso, and it is made up of the humerus, scapula and
clavicle. While the humeral head and glenoid fossa of the scapula
make up the shoulder joint proper, the clavicle acts as a strut be-
tween the scapula and the sternum (breastbone), connecting the axi-
al and appendicular skeletons. (For more information on the human
skeleton, visit our blog posting at www.compelvisuals.com)
The shoulder is a ball and socket joint, the most mobile in the • Frozen Shoulder (Adhesive Capsulitis) is a condition that
human body. The high level of mobility is due to the confirma- causes stiffness, pain, and limited range of motion. As adhe-
tion of the humeral head and the shallow glenoid fossa; this de- sions and inflammation increase, movement becomes more
sign also makes the shoulder vulnerable to dislocation. difficult. This disorder often arises while recovering from
medical procedures or conditions that limit the motion of the
The labrum of the shoulder, a fibrous rim of connective tissue shoulder.
located on the outside of the glenoid fossa, further stabilizes the
joint and increases the congruity between the humeral head and
the glenoid fossa.
Functional Anatomy of the Shoulder and Injury
The rotator cuff muscles, which all arise from the scapula and
attach to the humeral head, act to stabilize the shoulder joint and
allow for the extensive range of motion.
Motion of the shoulder joint includes flexion, extension, abduc-
tion, adduction and rotation.
Shoulder Injuries
• Shoulder Dislocation occurs when the humeral head “pops”
out of the glenoid fossa.
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• Rotator Cuff Injuries often occur when repetitive motion, in- Sample of Medical Illustration Exhibits
volving overhead reaching, strains or tears the tendinous por- Demonstrating Shoulder Injuries
tion of the muscles.
All illustrations and written content copyrighted by Compel Visuals LLC. For more information visit www.compelvisuals.com.
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Drug and Device Litigation Update
Drew LaFramboise
Ashcraft & Gerel, LLP
The world of drug and device litigation is ever-evolving, with have been made among plaintiffs’ counsel to coordinate efforts.
new products coming under regulatory and legal scrutiny on A petition is pending before the Joint Panel on Multidistrict
a regular (and far too frequent) basis. Keeping one’s finger on Litigation (JPML) for nationwide consolidation of these actions,
the pulse of this fast-moving area of complex litigation can be which the JPML will hear on October 1, 2015.
an immense task. Accordingly, this article is intended to assist
practitioners in understanding trends in this area of law by high- Zofran
lighting a few of the major pharmaceutical and medical device
products which are currently the subject of litigation throughout Zofran (ondensetron) is an anti-nausea drug manufactured by
the country. Regardless of whether you specialize in pharmaceu- pharmaceutical giant GlaxoSmithKline (GSK). The drug was
tical and medical device litigation, it is important to keep these approved by the FDA to treat nausea caused by cancer treat-
products on your radar as we collectively fight for consumer jus- ments, such as chemotherapy and radiation. However, Zofran
tice against corporations who place dangerous products into the has been widely used off-label—and marketed as such by GSK—
marketplace. to treat nausea and vomiting in pregnant women. Unfortunately,
the drug has been linked with severe and potentially fatal birth
Laparoscopic Power Morcellators defects when used by pregnant mothers in the first trimester of
their pregnancies.
Laparoscopic power morcellators are medical devices designed
to cut uterine fibroids during hysterectomies and myomecto- The birth defects that have been associated with Zofran use in-
mies. The devices have a rapidly rotating blade used to chop fi- clude heart defects—namely holes in the heart, also known as
broid tissue into small pieces which can then be removed lapara- atrial septal defects and ventricular septal defects—and mouth
scopically through a small incision. It is estimated that more than deformities such as cleft palates and cleft lips.
50,000 women undergo morcellator-aided procedures each year.
In July 2012, GSK resolved civil and criminal complaints brought
The power morcellator’s principal design feature—a blade against it by the federal government for off-label promotion of
spinning at thousands of revolutions per minute—acts to dis- several of its drugs, including Zofran.2 Now, dozens of civil law-
seminate fibroid tissue indiscriminately throughout the patient’s suits are pending in federal and state courts across the country. A
body during surgery. Unfortunately, the inherent design of this petition for nationwide consolidation of all federal court actions
product creates an extreme danger when the patient has an against GSK alleging Zofran-related injuries is pending before
undetected malignancy in her fibroid tissue, which, upon dis- the JPML and arguments for and against consolidation into an
semination, can cause the rapid spread and upstaging of deadly MDL will be heard by the panel in October.
sarcoma throughout the patient’s abdominal cavity, significantly
worsening the patient’s chance of survival. The FDA estimates Testosterone Replacement Therapy
that roughly 1 in 350 women who undergo these procedures will
have an undetected sarcoma in their fibroid. Over the past several years, some of the world’s largest drug
manufacturers have created a multi-billion dollar industry for
In April 2014, the FDA issued an Urgent Safety Notification, in testosterone replacement therapy (TRT) products. These prod-
which it warned the public of this danger. In November 2014, ucts, which include brands such as AndroGel and Axiron, have
the FDA followed up with a black-box warning in which it con- been marketed to men to correct the symptoms of “Low Testos-
traindicated the use of morcellators in women who are peri- or terone,” including fatigue, memory loss, and lowered sex drive.
post-menopausal or who have a known or suspected malignan-
cy.1 Ethicon, a subsidiary of Johnson & Johnson and the major On January 31, 2014, the FDA announced it was investigating
manufacturer of these devices, has suspended global sales of its the connection between the application of TRT products and an
morcellator products. Currently, dozens of lawsuits have been increased risk of cardiovascular events, including heart attacks,
filed by injured plaintiffs throughout the country, and efforts stroke, and the development of blood clots. More recently, in
n 20 n
Joseph I. Rosenberg, CFA, LLC
Forensic Economics, Mediation,
and Financial Advisory Services
Kensington, Maryland
Website: www.joe-rosenberg.com
Email: [email protected]
Phone: 301-802-0617
I Offering Forensic Economic Reports with
Damage Awards in cases of Personal
Injury, Wrongful Death,Wrongful
Termination, and Medical Malpractice:
• Loss of Earnings/Earning Capacity
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• Valuation of Life Care Plans using detailed, current CMS price projections
I Experience:
• Over 30 years of experience as an economist and financial analyst
• Delivered economic loss appraisals in MD,NJ, PA, DC, and U.S. District
Courts, including depositions and trial testimony
• Have successfully assisted both plaintiff and defense sides
• Published in peer-reviewed Journal of Forensic Economics &
The Earnings Analyst
• Recognized expert on topic of discounting damage awards, as author
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I Credentials:
• MBA, Finance, Accounting and Statistics, University of Chicago
• MA, Economics, Virginia Polytechnic Institute
• Chartered Financial Analyst (CFA)
10
March of 2015, the FDA announced that based on published sci- er cancer medication for pain relief. Over 250,000 devices have
entific literature and expert input from an FDA Advisory Com- been sold and implanted into patients throughout the world.
mittee meeting, “there is a possible cardiovascular risk associated
with testosterone use.”3 The FDA further required that “the The Synchromed II has a checkered history when it comes to
manufacturers of all approved prescription testosterone products public safety. In May 2012, January 2011, January 2007, and June
change their labeling to clarify the approved uses of these medi- 2006, the FDA observed Medtronic’s violations of FDA regula-
cations” and that the manufacturers “add information to the la- tions concerning the device, leading to warning letters and ci-
beling about a possible increased risk of heart attacks and strokes tations formally rendered against Medtronic. In 2013, the FDA
in patients taking testosterone.” issued another Class I recall for the device, stating that there was
a possibility for unintended delivery of medication during the
In the meantime, widespread litigation has commenced against priming bolus procedure, which could result in an overdose of
the manufacturers of TRT products. On March 18, 2014, fed- drugs into the cerebrospinal fluid. Most recently, on April 27,
eral lawsuits filed by consumers against these manufacturers 2015, the Consumer Protection Branch of the Department of
were consolidated into a MultiDistrict Litigation (MDL) venued Justice filed an injunction against Medtronic in the U.S. Dis-
in the U.S. District Court for the Northern District of Illinois, trict Court for the District of Minnesota pursuant to the Fed-
before Judge Matthew Kennelly.4 Currently, more than 2,000 eral Food, Drug, and Cosmetic Act, 21 U.S.C. §332(a), seeking a
individual cases have been filed into the MDL and litigation is court order to prohibit the company from manufacturing, label-
progressing. ing, and distributing the Synchromed II.5 The DOJ cited inspec-
tions of manufacturing plants which demonstrated violations of
Medtronic Synchromed II Infusion Pumps the Act, along with Medtronic’s prior notice of manufacturing
violations since at least 2006. The parties subsequently entered
The Medtronic Synchromed II pump, which was first marketed into a consent decree, through which Medtronic agreed to stop
in 2004, is approved for infusion of morphine, Baclofen, and oth- manufacturing, designing, and distributing new Sychromed II
pump systems and to take actions to correct its regulatory viola-
tions.6
A handful of lawsuits have been filed throughout the country
against Medtronic arising from serious injuries alleged to have
been caused by the Synchromed II. To date, no effort to seek con-
solidation has been made, though litigation involving this medi-
cal device remains at a very early stage.
Bell Legal Nurse Consulting ––––
Marcia L. Bell, RN, BSN, CAPA, CLNC 1 “Updated Laparoscopic Morcellation in Hysterectomy and Myomectomy:
FDA Safety Communication,” Nov. 24, 2014, available at http://www.fda.gov/
Ringing in the Medical Facts MedicalDevices/Safety/AlertsandNotices/ucm424443.htm.
Case Screenings & Reviews ■ Timelines & 2 See DOJ Press Release, “GlaxoSmithKline to Plead Guilty and Pay $3 Bil-
Chronologies ■ Case Summaries ■ IME Attendance ■ lion to Resolve Fraud Allegations and Failure to Report Safety Data,” July
2, 2012, available at http://www.justice.gov/opa/pr/glaxosmithkline-plead-
Expert Witness Services ■ Medical Records guilty-and-pay-3-billion-resolve-fraud-allegations-and-failure-report.
Management
3 See “FDA Drug Safety Communication: FDA cautions about using testos-
Call for a free consultation terone products for low testosterone due to aging; requires labeling change to
inform of possible increased risk of heart attack and stroke with use,” March
410-660-7025 3, 2015, available at http://www.fda.gov/Drugs/DrugSafety/ucm436259.htm.
Email: [email protected]
4 MDL 2545 (N.D. Ill.).
5 United States of America v. Medtronic, Inc., et al. (D. Minn., No. 15-2168),
Complaint for Permanent Injunction available at http://www.justice.gov/
file/414351/download.
6 See DOJ Press Release, “Medtronic Corporation and Executives Agree to
Consent Decree to Resolve Allegations of Food, Drug and Cosmetic Act Vio-
lations,” April 27, 2015, available at http://www.justice.gov/opa/pr/medtronic-
corporation-and-executives-agree-consent-decree-resolve-allegations-food-
drug-and.
n 22 n
The ABLE Act: Will it Replace the Special Needs Trust
for Personal Injury Settlements?
Evan J. Krame, Jamie Kay, Edward M. Biggin
Krame & Biggin, Rockville, Maryland. August, 2015.
There is a new tool available for trial attorneys to be aware of to Although ABLE accounts were originally proposed as a means
help persons with disabilities regarding recoveries in malpractice to render SNTs obsolete, legislative changes rendered the law
injury cases. Persons with disabilities are now able to have tax more limited in scope, meaning careful consideration will have
preferred savings accounts similar to the 529 plans offered for to be given when deciding which one is right for a plaintiff.
education savings. These are called ABLE act accounts or 529A One significant limitation of the ABLE Act is that the disabled
accounts, from the acronym for Achieving a Better Life Experi- individual must have become disabled prior to age 26 in order
ence (ABLE) Act. This is a major step forward in empowering to qualify for an account, though contributions can be made
persons with disabilities. throughout that person’s lifetime. In contrast, a self-settled SNT
must be established when the beneficiary is under 65, and no ad-
Preserving public benefits, such as Supplemental Security Income ditions are permitted over the age of 65.
(SSI) and Medicaid, remains critically important to persons with
disabilities, even after a recovery in a tort action. Even a modest An extremely important aspect to consider for settlement plan-
settlement award can disqualify them from receiving some or all ning is that ABLE accounts are also limited as to funding. Total
of their benefits. Until the ABLE Act, Plaintiffs have had to turn annual cash funding is restricted to the federal gift tax exclusion
to self-settled special needs trusts (“SNTs”) as the only way to pre- ($14,000 in 2015), and the corpus cannot exceed the state limita-
serve their entitlement to financially-tested benefits. Self-settled tion for a “529” college savings plan ($350,000 in 2015). There-
SNTs (also known as “first party” or “statutory” SNT) have his- fore, only recoveries of $14,000 or less can be used to fund an
torically been the only vehicle for receiving personal injury claims ABLE account. Because each plaintiff can only hold one ABLE
for plaintiffs who also get public benefits. While the SNT may account, this means that it will take a number of years before any
provide professional investment and management of assets, the tax savings will be significant. For plaintiffs seeking to preserve
beneficiary has no control over the trust assets. public benefits, funding is even more limited. Once an ABLE ac-
count holds assets in excess of $100,000, eligibility for SSI (though
Signed into law December 19, 2014, the Achieving a Better Life not Medicaid) will be suspended. In contrast, a SNT can hold as-
Experience (ABLE) Act offers plaintiffs an alternate means to sets of any value without jeopardizing a plaintiff’s SSI benefits,
protect their benefits. As with a SNT, funds in an ABLE ac- so long as no disqualifying distributions are made. Moreover, as
count will not be counted as assets for determining eligibility for with a “529” college savings plan, investment options for ABLE
Medicaid or SSI. account holders are limited to those offered by the state, whereas
the trustee of a SNT has greater flexibility and can hold different
With the passage of the ABLE act, individual states are authorized types of assets, such as a home for the beneficiary.
to set up programs that permit persons with disabilities, or their
family members, to make contributions to savings accounts, simi- In addition, ABLE accounts share two important limitations in-
lar to those established under Section 529 of the Internal Revenue herent to self-settled supplemental needs trusts. First, both carry
Code. Like a “529” college savings plan, after-tax funds placed in with them payback provisions upon the death of the beneficiary.
an ABLE account grow tax free and distributions related to a per- This means that when the beneficiary dies, any remaining funds
son’s disability are not taxed. Unlike “529” college savings plans, in the trust or the ABLE account must be used to reimburse the
however, which allow multiple accounts per beneficiary, only one state for the Medicaid benefits the beneficiary received while he
ABLE account per beneficiary is permitted. So far, thirty-one or she was alive. It cannot be left to another sibling, relative or
states have already passed ABLE legislation. In the District of Co- organization unless there are no Medicaid services owed at death.
lumbia, the “ABLE Program Trust Establishment Act of 2015”, Second, both ABLE accounts and self-settled SNTs limit the types
B21-0252, is set to go public hearing early this fall. of expenditures that can be made to a beneficiary. While qualified
expenses under ABLE extend beyond those educational expenses
n 23 n
permitted under a “529” college savings plan, there are nonetheless joy tax-free growth (at least when used for permissible distribu-
limits as to what will qualify as a permissible disability expense. tions), while SNTs are subject to income taxation.
The ABLE Act, as written, permits “any expenses related to the
eligible individual’s blindness or disability including: education, A third alternative for plaintiffs is a pooled SNT. A pooled SNT
housing, employment training and support; assistive technology protects the beneficiary’s eligibility for public benefits without
and personal support services; health, prevention, and wellness; the need to establish a stand-alone trust. Pooled trusts are ad-
financial management and administrative services; legal fees; ex- ministered by the nonprofit organizations that created them,
penses for oversight and monitoring; funeral and burial expenses.” typically with the assistance of highly experienced counsel or
This definition, while broad does present significant restrictions. other professional trustees. Locally, Shared Horizons, Inc. man-
It does not include food, vacations, or entertainment, and it is not ages the Wesley Vinner Memorial Pooled SNT for residents of
yet clear how these regulations will be enforced. Likewise, cash DC, Maryland and Virginia. Unlike an ABLE account, a pooled
payments, or payments for food or housing, made out of a self- trust does not have an annual contribution limitation; however,
settled SNT will reduce SSI benefits. funds are subject to income tax. In all of these financial vehicles
that preserve public benefits, the family and heirs should not an-
So, when might an ABLE account be right for a recovering ticipate an inheritance after the death of the disabled person if
plaintiff? For a plaintiff recovering a modest settlement award, there is a substantial Medicaid lien.
the ABLE act provides a simple straight-forward way to invest
and manage his or her own funds while keeping public benefits While the ABLE Act is unlikely to replace the need for self-set-
intact. It certainly avoids some of the costs and complexities of tled SNTs, it still represents yet another vehicle to help plaintiffs
establishing a SNT. ABLE accounts can be established by the maintain their public benefits after settlement. Practitioners will
plaintiff and should require only a small annual maintenance have to weigh the individual circumstances of each case to de-
fee. Finally, it’s important to remember that ABLE accounts en- termine which will best meet the needs of a recovering plaintiff.
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n 24 n
Thank you
to our chairs from 2014-2015!
We appreciate your hard work for our association over the past year
Amicus Curiae
Jack Gold, Chair | Marc Fiedler, Chair | Matt Tievsky, Chair
Anti-Solicitation
Kenneth Trombly, Chair | Keith Watters, Chair
Education
Frank Kearney | Charles Meltmar | Julie Mitchell
Ethics
Thomas Cardaro, Chair
Legislative
Jim Taglieri, Chair
Membership
Justin Beall, Chair | Caragh Fay, Chair | Archie Rich, Chair
New Lawyers / Social
Justin Beall, Chair | Caragh Fay, Chair | Molly Hoffman Wolfe, Chair
Dan Scialpi, Chair | Dan Singer, Chair
Public Education Committee
Seth Price, Chair
Women’s Caucus
Paulette Chapman, Chair | Julie Mitchell, Chair | Molly Hoffman Wolfe
n 25 n
2015-2016 Dinner Meeting
and Seminar Schedule
Please make note of our cocktail hour/dinner meetings for this year. We hope you will join us and get to know your fellow
members better. All meetings will take place at The University Club: 6pm cocktails, 7pm dinner and presentation
Thursday September 10, 2015
The View From The Bench
Thursday September 17, 2015
Membership Rooftop Cocktail Party | 777 6th Street, NW
Thursday October 15, 2015
Golf Tournament | Whiskey Creek Golf Course
Wednesday October 21, 2015
Membership Drive | 777 6th Street, NW
Friday October 30, 2015
Brain Injury Symposium | Omni Shoreham
Thursday November 5, 2015
Police Misconduct Cases
Thursday December 10, 2015
Holiday Party
Thursday January 7, 2016
Ted Olson
Thursday February 4, 2016
Distracted Driving
Friday March 11, 2016
Nuts and Bolts Seminar: E-Discovery, Contributory Negligence and the New Expert Rule in DC
Thursday April 7, 2016
Dinner Meeting and Elections
Saturday May 14, 2016
Annual Awards Dinner | The Four Seasons
n 26 n
Legislative Update all
(August 2015) evi
all
By Christina Wheatly Figueras un
Legislative Analyst the
rep
The D.C. Council will return from the summer recess on September pro
15, 2015. res
the
Reduction in Healthcare Liens and Workers’ Compensation Liens: D.
The TLA-DC Legislative Committee continues to meet with D.C. eve
Councilmembers and their staff to discuss legislation, drafted by TLA- the
DC, that would require healthcare providers/insurers and employer/
insurers who hold liens in third-party negligence cases to share in the Su
costs generated in the case – reducing the lien in an appropriate man- pro
ner, taking into consideration the attorneys’ fees and costs involved. wh
“p
Health Care Decisions Act: D.C. Councilmembers Cheh and Alexan- un
der introduced the “Health Care Decisions Act” earlier this year. This ne
legislation creates a “Medical Orders for Scope of Treatment” form Th
(a.k.a. a MOST form) – a medical order to be placed in a patient’s the
medical record, designed to reflect the end-of-life treatment decisions pro
for a critically-ill patient. The legislation includes criminal and civil pro
immunity for health care professionals, EMS personnel, health care sta
institutions, government agencies or government employees who, in con
good faith, comply with a MOST form or decline to comply with a the
MOST form. cau
cau
A public hearing was held in June. TLA-DC submitted written tes-
timony expressing concern that the immunity provision in the legisla-
tion could be used to shield health care professionals and others when
negligently performing the wishes of a patient. In addition, the TLA-
DC Legislative Committee met with key members of the D.C. Coun-
cil to discuss the bill and the immunity provision.
The bill remains under the review of the D.C. Council Committee on
Health and Human Services and the Committee on the Judiciary.
n 27 n
Recent Cases
Reported by Denis C. Mitchell
Stein Mitchell Cipollone Beato & Missner, LLP
Negligent Infliction of Emotional Distress: Court of Appeals to cover up its failure to inspect by forging inspection checklists.
Adopts The “Rescuer Doctrine” and Concludes that Mother Nonetheless, the court did not send the issues of punitive dam-
Who Tried to Rescue Child From Airshaft Was in the Zone ages to the jury as to either defendant. The jury found for plain-
of Danger; Punitive Damages: Post Injury Cover-up, While tiffs, awarding the injured child $1.56M and his little sister $26K.
Reprehensible, Did Not Provide Basis for Awarding Punitive Plaintiffs appealed the trial court’s decision to grant summary
Damages Because it Did Not Cause the Harm; Trial Prac- judgment on the mother’s emotional distress claim, the decision
tice: Jury Instruction on No Permanency Was Appropriate not to send the punitive damages to the jury, and the jury in-
Where There Was No Expert Testimony Sufficient to Support struction on permanency. Defendants’ cross-appealed.
a Claim That Post-Concussion Syndrome Was Permanent.
OUTCOME: Affirmed in part; reversed in part; vacated and
Destefano v. Children’s National Medical Center, – A.3d –, remanded.
2015 WL447820 (D.C., July 23, 2015) Opinion by Fisher,
joined by McCleese and Reid. Trial Judge: Josey-Herring; REASONING: The Court of Appeals reversed summary judg-
Motions Judge: Edelman. ment on the mother’s claim for negligent infliction of emotional
distress. After concluding that the trial court properly rejected the
FACTS: A mother, her six-year-old son, and four-year-old mother’s argument that she had a special relationship with CNMC
daughter were leaving the Children’s National Medical Center sufficient to give rise to a negligent infliction claim, the court turned
(CNMC). In the parking garage, the mother asked the children to the question of whether she was in the zone of danger. The court
to stand near the wall so she could open the car door. The six- ruled that, when the mother attempted to rescue the child, she
year-old fell backwards through a vent in the wall that opened reached into the hole, lunged forward into the hole, almost fell into
to a 25 foot airshaft. The opening to the vent had been left un- the hole herself, heard her child land with a thump sound, heard
covered. The child suffered numerous injuries, including frac- him crying, and felt her daughter pulling her back from the hole in
tured wrists, post-traumatic stress disorder and post-concussive the wall as if afraid of her mother falling in as well. She testified that
syndrome. The mother, the injured child, and his younger it was “the most horrible feeling I have ever felt, because I could not
sister filed suit. The mother and younger sister sued for negli- reach him or help him. I am petite so I easily could fit into the hole.”
gent infliction of emotional distress. The injured child sued for Based on this testimony, the court adopted, for the first time under
negligence resulting in his physical injuries. Defendants were D.C. law, the “rescuer doctrine.” The court held “that plaintiffs who
CNMC and the company that operated the parking garage. The entered the zone of danger in a rescue attempt may recover dam-
trial court granted defendants’ motion for summary judgment age for mental distress, as long as they feared for their own safety
on the mother’s negligent infliction of emotional distress claim, because of the defendants’ negligence, while in the zone of danger.
concluding that she was not in the zone of danger. At trial, de- Such plaintiffs can also recover damages for mental distress caused
fendants successfully sought a jury instruction that emotional by fear for the safety of an immediate family member who was en-
distress damages to the injured child could not be awarded for dangered by the negligent act.”
permanent post-concussive syndrome. The trial court issued this
instruction because one plaintiffs’ expert had testified that the The Court then addressed several other issues, affirming the trial
condition was still ongoing and was hard to predict how long court’s decision on each. Those issues included:
it would last, while other experts testified that the likelihood of
permanent injury from a concussion would be “remote” and “ex- • The trial court properly instructed the jury that it could not
traordinarily rare.” At trial, there was evidence that the parking award damages for “permanent post-concussive syndrome.”
garage had known about the dangerous condition and attempted The expert testimony was insufficient to support a claim of
n 28 n
permanency. One expert testified that he could not say how Andrew v. American Import Center, 110 A.3d 626 (D.C.,
long the condition would last. All other experts testified that February 26, 2015). Opinion by Washington, joined by
the condition would very likely not be permanent. As such, Thompson and Nebeker. Trial Judge: Josey-Herring.
there was no basis for a claim of permanency.
FACTS: Plaintiff filed suit for fraud, breach of contract and
• Punitive Damages. The trial court properly declined to in- violation of the D.C. CPPA arising out of the purchase of a car
struct the jury on punitive damages where there was no evi- from defendant dealer. As part of the purchase transaction, the
dence of malice or reckless disregard of the risk of harm in plaintiff signed an agreement with an arbitration provision. The
question. Plaintiffs conceded that CNMC did not know about dealer moved to dismiss the case in favor of arbitration. Plaintiff
the open vent. CNMC’s alleged reckless failure to review the opposed, arguing that the arbitration provision was unconscio-
parking contractor’s paperwork was insufficient to establish nable. The trial court granted the motion to compel arbitration
punitive damages. The parking contractor knew about the and stayed the litigation pending completion of the arbitration.
open vent and, after the injury, covered up its failure to in- The trial court did not hold a hearing on the unconscionability
spect. However, plaintiffs offered no evidence of any ratifica- argument. Plaintiff appealed.
tion of the parking company employees’ alleged misconduct.
Absent ratification by an officer, director, or managing agent, OUTCOME: Reversed and remanded.
the failure to remedy the hazard posed by the open vent did
not give rise to a claim for punitive damages. Likewise, the REASONING: The court focused on two issues: (1) whether
cover-up of defendants’ failure to inspect cannot give rise to the order compelling arbitration was appealable and (2) whether
punitive damages because “a defendant should be punished the trial court erred in granting the motion to compel arbitration.
for the conduct that harmed the plaintiff not for being an un-
savory individual or business.” As such, the post-injury con- The Court of Appeals determined that it had jurisdiction to hear
duct does not provide sufficient evidence that it acted with the appeal. The Court of Appeals’ jurisdiction is established by D.C.
malice or reckless disregard before the accident. Code §11-721(a) and includes jurisdiction to hear appeals from all
final orders and judgments of the Superior Court and interlocutory
• Plaintiffs supplied sufficient expert testimony that the orders of the Superior Court “granting, continuing, modifying, re-
daughter, who watched her brother fall in the vent, feared fusing, or dissolving, or refusing to dissolve or modify injunctions.”
for her own safety and thus was in the zone of danger and This jurisdiction was established in 1970 by an act of Congress. In
could be compensated with emotional distress damages. 1977, the D.C. Council enacted the D.C. Uniform Arbitration Act,
which stated that orders denying an application to compel arbitra-
• The parking contractor had a duty to plaintiffs from its contrac- tion were final and appealable, but a trial court’s order granting a
tual arrangement with CNMC, requiring it to “recruit, engage, motion to compel arbitration was not appealable. In 2007, the D.C.
hire, supervise and discharge all employees and persons needed Council revised the Uniform Arbitration Act and enacted a provi-
in order to operate the parking garage,” and imposing the ob- sion stating that an “order denying or granting a motion to compel
ligation to “direct courteously and efficiently all traffic into and arbitration” was appealable. See D.C. Code §16-4427. This appeal
out of the parking garage,” and to “take all actions and steps as therefore raised a question whether the D.C. Council had the au-
may be necessary to manage, service and operate the parking ga- thority to override or supplement Congress’ enactments regarding
rage properly and efficiently.” In addition, the parking contractor the jurisdiction of the D.C. Court of Appeals.
had “primary control over the parking garage.” As such, it had
possessory interest in the premises which gave rise to a duty of The court dodged the question by holding that, “an order stay-
reasonable care to persons on the property for business purposes. ing litigation and compelling a consumer to arbitrate with a
commercial entity based on an arbitration clause contained in a
• Lastly, expert testimony was not required to establish that contract of adhesion” should be treated like an injunction and is
leaving an airshaft vent open was negligent. therefore appealable under D.C. Code §11-721(a)(2). Citing the
Supreme Court’s decision in Carson v. American Brands, Inc.,
••• 450 U.S. 79 (1981), the Court of Appeals reasoned that a trial
court order compelling arbitration “might still have the effect
Arbitration: Trial Court Improperly Granted Motion to Com- of an injunction and could thus be treated as such if it (1) has
pel Arbitration Where Arbitration Provision Was Found in the ‘practical effect’ of an injunction and (2) the litigants would
Consumer Contract of Adhesion and Trial Court Did Not suffer a ‘serious, perhaps irreparable consequence’ from the trial
Conduct a Factual Inquiry as to the Unconscionability of court’s order such that it could only be ‘effectively challenged’
the Consumer Contract. by immediate appeal.” The order compelling arbitration in this
case satisfied both prongs of the Carson test. It had the practical that there was no evidence it was on notice of the defect and insuf-
effect of an injunction by halting litigation and ordering the par- ficient evidence that it created the defect. The trial court granted
ties to arbitrate. It also threatened serious harm. In particular, the motion. Plaintiff appealed.
the D.C. Council had found in 2007 that “many businesses have
found that mandatory arbitration is advantageous in consumer OUTCOME: Summary Judgment reversed.
contracts where the business controls the choice of arbitrators,
and can afford the arbitration process more easily than can the REASONING: The evidence in this case was “sufficient to
consumer” and that “as the use of arbitration has increased, the permit a jury to find it more likely than not that the cover was
view of many is that the arbitration process has been slanted in removed and not replaced by Washington Gas.” Plaintiff’s tes-
favor of business over consumers.” timony that she drove by the station twice a day, recalled seeing
construction, and recalled seeing the uncovered hole at least a
On the merits of the appeal, the court focused on the trial court’s week before the accident was sufficient to create factual dispute
failure to conduct a factual inquiry into the issue of unconsciona- that Washington Gas’s employees failed to replace the cover on
bility. When a consumer raises unconscionability as a defense to the hole. Further, in light of the testimony from Washington
enforcement of an arbitration provision in a consumer contract, Gas’s employees that the cover was extremely heavy and diffi-
the trial court must hold an evidentiary hearing or provide the cult for members of the public to move, a jury could reasonable
parties an opportunity to develop the record to determine wheth- conclude that tampering by an unauthorized member the public
er the agreement to arbitrate is unconscionable. Here, plaintiff is not a plausible alternative hypothesis to explain the absence of
alleged facts sufficient to show that the agreement was proce- the test station cover in this case.”
durally and substantively unconscionable. She alleged that she
lacked a meaningful choice and that the agreement was part of •••
an adhesion contract with no opportunity to negotiate. As such,
the trial court erred in compelling arbitration without conduct- Negligence and Premises Liability: Plaintiff Provided Suf-
ing a factual inquiry on the issue of unconscionability. ficient Proof About Which Party Performed the Negligent
Work, Constructive Notice of Defect, and Violation of the
••• Standard of Care to Support a Verdict in a Trip and Fall Case.
Summary Judgment and Negligence: Trial Court Improperly Sullivan v. Abovenet Communications, Inc., 112 A.3d 347
Granted Defendant’s Motion For Summary Judgment Re- (D.C., March 26, 2015). Opinion by Blackburne-Rigsby,
garding Defective Condition of the Roadway Where Plaintiff joined by King and McCleese. Trial Judge: Cordero.
Had Proof That Defect Existed For a Four Week Period.
FACTS: The plaintiff in this trip and fall case suffered injuries
Johnson v. Washington Gas Light Company, 109 A.3d 1118 when he fell on a depression around a manhole cover at a busy
(D.C., February 12, 2015). Opinion by Glickman, joined intersection on F Street, N.W. He filed suit against the contrac-
by Easterly and Pryor. Trial Judge: Cordero. tor who had performed work around the manhole cover and the
District of Columbia. During plaintiff’s case, he introduced the
FACTS: Plaintiff was injured when another driver ran her car off work permits as evidence the defendant contractor performed
the road. The driver had swerved to avoid an uncovered utility test the work. On the issue of notice, he supplied testimony from a
station hole. Plaintiff filed suit against Washington Gas alleging co-worker that she had fallen in the same spot two weeks earlier.
that it negligently failed to cover the hole in the roadway. Plaintiff On the issue of negligent performance of the work, he supplied
testified that she drove past the scene of the accident twice a day in expert testimony that the depressions were caused by inadequate
the month leading up to the accident, that she had seen construc- back filling and compacting around the manhole cover. At the
tion there, and that she had seen the uncovered utility station hole close of the plaintiff’s case, the trial court took a Rule 50 motion
“at least a week” before the accident. She recalled being careful for judgment under advisement and reserved its ruling. During
to drive around that spot so as not to get a flat tire or break her the defendants’ case, the evidence included D.C.’s interrogatory
axle. Washington Gas conceded the construction had been going answers, which stated that the contractor defendant performed
on there approximately a month before the accident but stated that the work, and testimony from a District of Columbia official to
the utility hole cover was replaced. Washington Gas also testified the same effect. At the close of the evidence, defendant contrac-
that the “test station cover is extremely heavy and is designed and tor again moved for judgment. The court again held its ruling
fitted into its ring so that people cannot remove it.” All parties con- in reserve. The jury then reached a verdict of $300,000 for the
ceded that no one complained to Washington Gas of the alleged plaintiff. Following the verdict, the trial court ruled on the mo-
defect. Washington Gas moved for summary judgment arguing tion and entered judgment notwithstanding the verdict. The
n 30 n
trial court ruled that the evidence of who performed the alleg- the maintenance of a hidden engine of destruction.” The trial
edly negligence work was insufficient to meet plaintiff’s burden, court granted the motion and dismissed the case.
that the plaintiff had not proven constructive notice, and that the
plaintiff’s expert had not adequately established the standard of OUTCOME: Judgment reversed.
care. Plaintiff appealed.
REASONING: The trial court erred in concluding that the
OUTCOME: Judgment reversed. grease was “open and obvious” as a matter of law. Plaintiff’s testi-
mony that he did not see the grease, the fact that the grease was the
REASONING: On the question of which party performed same color as the fence, and plaintiff’s testimony that he did not
the work, the trial court erred in considering only the evidence feel the grease until after he had already slipped were sufficient to
submitted during the plaintiff’s case-in-chief, but rather should create a jury question as to whether the grease was “hidden.” Even
have considered the interrogatory answers and the testimony of if the grease were “hidden,” however, if plaintiff were a trespasser
the District of Columbia employee which was admitted during he had no claim because greasing a fence is not a willful or wanton
the defendants’ case. Considering this additional evidence, the act and is not a “hidden engine of destruction.” Rather, hidden
jury could reasonably conclude that the defendant contractor engines of destructions are devices or other conditions “intend-
had performed the work. On the second issue of constructive ed to injure trespassers.” The court draws a distinction between
notice, even assuming such proof was necessary in a case where “knowledge of the possibility of injury” and “intention to bring
the method of the work was allegedly negligent, the plaintiff’s about an injury.” Nonetheless, if plaintiff had a privilege to be on
proof that the defect had existed for approximately two weeks the property, and thus was properly treated as a licensee rather
combined with the fact that it existed at a very busy intersection than a trespasser, his case should have gone to the jury. Plaintiff ar-
was sufficient for constructive notice. Third, where the plaintiff’s gued that the “private necessity privilege” applied. This privilege,
expert had referred to precise methodologies for backfilling and set forth in the Restatement (2nd) of Torts §197(1), allows an actor
compacting, and stated that those methodologies were required to enter a property if he or she reasonably believed it was necessary
by the standard of care and were not performed in this case, the for the purpose of protecting himself, his land or his chattel, and
evidence was sufficient to establish breach of the standard of care that his entry and measures taken by him are reasonable in light of
for the type of work involved. the circumstances. Plaintiff’s testimony that he attempted to jump
the fence because believed it was necessary to protect his dog (who
••• would wander off on occasion) was sufficient to create a jury a
question as to the private necessity privilege. As such, if the jury
Premises Liability: Plaintiff Who Trespassed in Order to believed the privilege existed, the plaintiff was owed a duty of care
Prevent Harm to His Dog Was Justified by the “Private Ne- as a licensee and summary judgment was appropriate. The Court
cessity Privilege” to Enter the Land and Therefore Would of Appeals reversed summary judgment and remanded the case
be Treated as a Licensee for the Purposes of Determining for further proceedings on these issues.
the Landowner’s Duty.
•••
Toomer v. Williams C. Smith & Company, Inc., 112 A.3d
324 (D.C., March 26, 2015) Opinion by King, joined by Fraudulent Conveyances: Where Judgment Creditor Sus-
Fisher and Beckwith. Trial Judge: Epstein. pects a Fraudulent Conveyance Has Occurred, a Post-Judg-
ment Writ of Attachment May Issue Without an Affidavit
FACTS: Plaintiff was performing auto repairs in the parking or a Bond.
lot of the apartment complex where he lived. His dog got away,
slipped through a fence, and ran loose in the adjoining apartment John C. Flood of MD, Inc. v. Brighthaupt, – A.3d – 2015
complex. Plaintiff, allegedly fearing for his dog’s safety, grabbed WL4773671 (D.C., August 13, 2015). Opinion by Belson,
the top of the fence and attempted to climb over it. The top of joined by Fisher and Blackburne-Rigsby. Trial Judge: Okun.
the fence had been greased by a management company in order
to prevent trespassers. Plaintiff, unaware of the grease until after FACTS: Plaintiff obtained a judgment against John C. Flood
he was mounting the fence, slipped on the greased fence and fell, of D.C. under the D.C. Wage Payment and Collection Act. The
suffering a serious injury to his lower extremity. Plaintiff filed judgment was obtained on October 22, 2013. Shortly before
suit. Defendant filed a motion for summary judgment, claiming judgment was entered, John C. Flood of D.C. established John
that the grease was “open and obvious” and that plaintiff was a C. Flood of MD and transferred its assets to the new company.
trespasser who was not owed a duty of reasonable care, but only After judgment was entered, plaintiff filed a Writ of Attachment
owed a duty to avoid “intentional, wanton, or willful injury or against John C. Flood of MD. The Maryland entity sought to
n 31 n
quash the writ arguing that the plaintiff failed to support the show reliance as a matter of law. The judgment on the fraud
writ with an affidavit and a bond. The trial court denied the mo- claim was therefore vacated.
tion and upheld the writ. The judgment debtor appealed.
•••
OUTCOME: Affirmed.
Fraud and Good Faith and Fair Dealing: The Court of Ap-
REASONING: D.C. law recognizes a difference between pre- peals Ruled That Plaintiff Failed to Show Justifiable Reli-
judgment writs and post-judgment writs. Pre-judgment writs ance Where Alleged Concealment Occurred After the Home
against non-parties may not be obtained without an affidavit and Purchase Contract Was Entered Into; There is no Claim for
bond because of the risks to the assets of the non-party. However, Good Faith and for Breach of the Covenant of Good Faith and
post-judgment writs are different. Where a fraudulent conveyance Fair Dealing Where Seller Performs all Obligations Under
is believed to have occurred, the code authorizes a writ of attach- the Contract and Buyer Receives the Benefit of the Bargain.
ment as to the property or credits of non-parties. The relevant stat-
utes include D.C. Code §16-511, §16-529, §16-547, and the D.C. Sundberg v. TTR Realty, LLC, 109 A.3d 1123 (D.C., Feb-
Uniform Fraudulent Transfer Act of 1995, D.C. Code §28-3101-11. ruary 12, 2015). Opinion by Okun (sitting by designation),
joined by Washington and Blackburn Rigsby. Trial Judge:
•••
FACTS: The plaintiff buyer and defendant seller entered into
Fraud: Plaintiff Cannot Show Justifiable Reliance Where a contract to purchase defendant’s home. Defendant realtor bro-
he Does Not Believe That False Representation is True. kered the sale. After the contract was signed, but before closing,
defendants learned that the adjoining property would undergo
Morris v. Morris, 110 A.3d 1273 (D.C., March 5, 2015). construction, but did not provide this information to plaintiff in
Opinion by McCleese, joined by Glickman and Nebeker. advance of closing. After closing, plaintiff filed suit for viola-
Trial Judge: Ross. tions of the D.C. CPPA, fraud, and breach of the covenant of
good faith and fair dealing. Plaintiff alleged that the defendants
FACTS: This dispute arose between siblings, who were fighting had a duty to inform plaintiff of the neighbor’s construction and
over proceeds from their mother’s estate. There were multiple resulting devaluation of the property he purchased. Defendants
deeds on the mother’s home. The most recent deed, from 2007, filed multiple motions to dismiss. Defendant realtor moved to
was filed in the D.C. land records by the defendant sibling and dismiss on the grounds that the sales contract was subsumed into
purported to convey the home to himself. The next most recent the deed and the deed did not contain any false statements con-
deed purported to convey the home from the mother to the de- cerning the adjoining property. This motion was denied. The
fendant brother and another sibling. Two brothers sued the third seller moved to dismiss plaintiff’s claims on the grounds that the
brother for fraud and conversion, alleging that the 2007 deed was D.C. CPPA did not apply to non-merchants, that there could be
a false misrepresentation. At a bench trial, the plaintiffs testified no reliance on any alleged misrepresentations or omissions be-
that they never believed the 2007 deed to be valid or truthful. cause the omissions occurred after the contract was signed, and
The trial court found that the defendant had committed fraud the covenant of good faith and fair dealing claim was barred by
by filing the 2007 deed. The trial court awarded $96,000 in dam- the seller’s full performance under the contract. That motion was
ages on the fraud claim. The trial court also founded against the granted. The realtor then filed a tagalong motion on the fraud
defendant for conversion and awarded $32,000 in damages. The and good faith and fair dealing claims. That was also granted.
defendant appealed the trial court’s fraud finding and associated The sole remaining claim in the case was the CPPA claim against
damages award. the realtor. Pursuant to Rule 54(b) of the Superior Court Rules
of Civil Procedure, the trial court granted plaintiff’s motion to
OUTCOME: Judgment for the plaintiffs vacated as to the fraud certify the case for appeal. Plaintiff appealed.
claim.
OUTCOME: Judgment affirmed.
REASONING: Fraud claims must be based on false misrep-
resentations upon which the plaintiff reasonably relies. The al- REASONING: The trial court’s dismissal of the CPPA claim
leged false misrepresentation in this case was the statement in against the non-merchant seller was appropriate. There can be
2007 deed that the defendant brother was the sole owner of the no claim for conspiracy to violate the CPPA asserted against non-
property. There was no evidence, however, that plaintiff broth- merchants. The text of the statute does not allow for any claim
ers “ever believed the false representation in the 2007 deed to be against non-merchants. In the absence of textual support for the
true.” In the absence of such evidence, the plaintiffs could not claim, it cannot exist. The fraud claims were also properly dis-
n 32 n
missed. All fraud claims must allege reliance. On the allegations in for which they were required to hold a District of Columbia ar-
this case, the only reliance alleged was the buyer’s decision not to chitect license.” In particular, the fact that plaintiffs were con-
breach the sales contract by refusing to go to closing. The “right” tractually required to obtain drawings from a licensed architect
to breach a contract is not a legally recognized right that can consti- and to subject all design work to the approval and supervision of
tute reliance in support of a fraud claim. Rather, the right to breach a licensed architect indicates that plaintiffs’ work was not, as a
a contract only exists in certain specified circumstances, not present matter of law, work that required an architect license.
here, which would render the agreement voidable. Likewise, the
trial court properly dismissed the good faith and fair dealing claim. COMMENT: This decision has language softening the Iqbal/
The contract required seller to provide good and marketable title Twombly plausibility requirement. It states “that a well plead-
at an agreed upon price by a specified date. It also required the ed complaint may proceed even if it appears that a recovery is
property to be in a certain condition, which condition had nothing very remote and unlikely once the record is developed” and that
to do with resale value or the status of the adjoining property. The “even if the trial court or we are inclined to disbelieve some of the
seller performed these obligations and rendered to the buyer ev- allegations in the First Amended Complaint, we may not coun-
erything the buyer contracted for. As such, there could be no claim tenance dismissal based on such a disbelief.”
for breach of the covenant of good faith and fair dealing.
•••
•••
Federal Jurisdiction: Federal Courts Have Exclusive Juris-
Civil Procedure: Trial Court Erred in Granting Motion To diction Over Cases Brought by an Institution of Higher Edu-
Dismiss Breach of Contract and Breach of Fiduciary Duty cation Involving the Denial, Withdrawal, or Termination of
Claims on Basis That Plaintiff Was Not a Licensed Architect. Accreditation.
Francis v. Rehman, 110 A.3d 615 (D.C., February 26, Board of Trustees of the University of the District of Colum-
2015). Opinion by Thompson, joined by Glickman and bia v. The Joint Review Committee on Education and Ra-
Pryor. Trial Judge: Combs Greene. diologic Technology, – A.3d –, 2015 WL 2401664 (D.C.,
May 21, 2015) Opinion by Steadman, joined by Glickman
FACTS: Plaintiff Francis was minority owner of an entity that and Fisher. Trial judge: Rankin.
sought to operate a bar/nightclub. Plaintiffs entered into a con-
tract with the majority owner to provide certain “design servic- FACTS: The University of the District of Columbia brought
es” and certain funding in return for $25,000 and a small owner- this claim after losing accreditation for its radiology technology
ship interest in the venture. Plaintiffs then entered into another program. After losing that accreditation, a student in the pro-
agreement to provide similar services and to advance funds in gram filed suit against UDC alleging breach of contract, fraud,
return for a slightly larger share of a second nightclub. Plaintiffs and negligent misrepresentation arising from the revocation of
alleged that they provided the required services, which included its accreditation. UDC filed a third-party complaint against the
obtaining designs from an architect, contributing their time, tal- entity responsible for revoking its accreditation. UDC settled the
ent and resources toward designing and building out the night- claim with the student and pursued its claim for reinstatement
club space. Plaintiffs alleged that, after they performed the work, of its accreditation. The defendant Joint Review Committee on
the majority owner paid them only a portion of their fee, failed Education and Radiologic Technology moved to dismiss on the
to reimburse their expenses as required, and failed to pay profits grounds that 20 U.S.C. § 1066(d) and 1099(b) required that such
in accordance with their ownership interest. They filed suit. The claims be brought exclusively in federal court. The trial court
majority owner moved to dismiss the complaint, arguing that agreed and dismissed the complaint. UDC appealed.
plaintiff Francis was not a licensed architect and therefore could
not enforce the contract to provide design services. The trial OUTCOME: Judgment affirmed.
court granted the motion to dismiss and the plaintiffs appealed.
REASONING: The statutory language states: “Notwithstand-
OUTCOME: Reversed and remanded. ing any other provision of law, any civil action brought by an insti-
tution of higher education seeking accreditation from, or accred-
REASONING: Plaintiff’s failure to have an architect license ited by, an accrediting agency or association … shall be brought in
was not fatal to his claim because it was unclear whether the the appropriate United States district court.” This language was
services that plaintiff was contracted to perform were services sufficient to overcome the presumption of concurrent jurisdiction
that required an architect license. “We cannot agree with [the of state and federal courts. In addition, the legislative history con-
trial judge] that the face of the first amended complaint made it tained statements that “all civil actions of the described type are
apparent that plaintiff offered to provide and provided services to be brought in federal court.” Finally, the court rejected UDC’s
n 33 n
argument that exclusive federal jurisdiction only applied to the under $5,000,000. Several aspects of the plaintiff’s bid were not
primary claim and not to third party claims. acceptable to the owner. Owner and contractor had a meet-
ing, during which they worked out the unacceptable items and
••• agreed to a new bid price and duration of work that reflected
these changes. Work on the project commenced. The owner, the
Establishment Clause: The First Amendment to the United owner’s architect, and the contractor worked closely together for
States Constitution Prevents a Civil Court From Deciding a period of weeks, contacting subcontractors, obtaining struc-
Religious Disputes. tural plans, corresponding regarding architectural changes, and
referring to each other as “project team members and construc-
Samuel v. Lakew, – A.3d – 2015 WL3649362 (D.C., June tion managers.” Approximately two months after reaching the
11, 2015). Opinion by Thompson, joined by Easterly and oral agreement on the originally unacceptable terms, and while
McLeese. Trial Judge: Kravitz. in the midst of negotiating a final written agreement, the project
owner informed the contractor, “I have declined to enter into
FACTS: This dispute arose between a bishop and the admin- the referenced agreement and will not proceed any further.” The
istrative board of an Ethiopian Orthodox Church. The bishop contractor submitted an invoice in the amount of approximately
disbanded the board because the board allegedly “broke laws $75,000 for work performed, and the owner refused to pay it.
and traditions of the church” and “lost moral standing” to serve The contractor filed suit seeking damages for breach of contract
as leaders of the church. The board members refused to give up or, in the alternative, $75,000 under a quantum meruit theory.
their seats (and refused to give back the keys to the church) and Following a bench trial, the trial judge ruled that there was a
the bishop sued to enforce the decisions he and other church meeting of the minds and that the parties entered into a con-
leaders had made. The trial court dismissed the claim stating tract. The court awarded damages in the amount of $75,000 and
that it did not have jurisdiction due to the Establishment Clause awarded $146,000 in lost profits. The owner appealed.
of the First Amendment. The bishop appealed.
OUTCOME: Affirmed in part, reversed in part.
OUTCOME: Judgment affirmed.
REASONING: The court began its analysis with black letter
REASONING: Civil courts lack jurisdiction to resolve a “contro- law that “for an enforceable contract to exist, there must be both
versy which, at its heart, concerns religious doctrine and practice.” (1) agreement as to all material terms; and (2) intention of the
Here, the trial court properly ruled that the court’s involvement in a parties to be bound.” The Court of Appeals observed that the
dispute about removal of the board members “would impermissibly trial judge made factual findings that the parties entered into a
entangle the court in doctrinal interpretation.” Whether the board contract on all material terms and intended to be bound. Those
members “lack spirituality” or “broke the laws and traditions of the factual findings were not clearly erroneous. They were amply
church” or “lost moral standing” are issues that would entail im- supported by the parties’ conduct following the meeting to work
permissible inquiry into church policy and would require the court out disputed items.
to decide “ecclesiastical questions.” The court distinguished this dis-
pute from a dispute about ownership of church property. It also dis- The court then turned to the “well known formulation” that
tinguished this dispute from a dispute about the election of church there are two types of preliminary agreements that can have bind-
leaders and whether such election accorded with church bylaws. ing force, despite not being reduced to writing. Type I “occurs
when the parties have reached a complete agreement (including
••• the agreement to be bound) on all issues perceived to require ne-
gotiation.” Such agreement is preliminary only in form and the
Contract Law: Contract Between Building Owner and Contrac- only task that remains is to reduce it to writing, if desired. The
tor Was Enforceable, Even Though Not Yet Reduced to Writing, second type of preliminary agreement is one where the parties
Where The Parties Agreed on All Material Terms and Agreed to express mutual commitment to a contract and have agreed on
Negotiate in Good Faith the Verbiage of the Agreements. “major terms,” while recognizing the existence of open terms that
remain to be negotiated. Simply put, parties can bind themselves
United House of Prayer For All People v. Therrien Waddell, Inc., to a concededly incomplete agreement in that “they accept a mu-
112 A.3d 330 (D.C., March 26, 2015). Opinion by Thompson, tual commitment to negotiate together in good faith in an effort to
joined by Fisher and Steadman. Trial Judge: Rankin. reach final agreement within the scope that has been settled in the
preliminary agreement.” The Court of Appeals ruled that the sec-
FACTS: Plaintiff contractor sued the project owner for breach ond type of preliminary agreement was applicable here. In such an
of contract. The project owner had distributed bid solicitation arrangement, a plaintiff may receive damages for costs incurred in
packages and selected plaintiff to perform work, valued at just performing the agreement if the other side then refuses to negoti-
n 34 n
ate as required. However, lost profits on the agreement may only tained a judgment for possession against the LLC. Plaintiff LLC
be awarded if breaching parties refuse to negotiate in good faith. and LLC member later filed suit against the lender for wrongful
The trial court did not make a finding as to the existence or non- foreclosure, breach of contract, violation of the D.C. CPPA, and oth-
existence of bad faith, therefore the awarding of lost profits was er common law and statutory actions. The lender moved to dismiss,
premature. The Court of Appeals remanded the case to the trial arguing that the second lawsuit was precluded by the judgment in
court for a finding on this issue. the suit for possession and that the CPPA claim was barred because
plaintiffs were not consumers, as that term is defined in the act. The
••• trial court granted the motion. Plaintiffs appealed.
Res Judicata: LLC and Its Member Who Controlled Litiga- OUTCOME: Judgment affirmed.
tion Process Were In Privity Such That Second Litigation
By LLC Member Was Barred. REASONING: On the res judicata issue, the court reasoned that
parties and their privities are barred from re-litigating claims or
Price v. Independence Federal Savings Bank, 110 A.3d defenses that were raised or could have been raised in a prior pro-
567 (D.C., February 19, 2015) Opinion by King, joined by ceeding by a party or its privity. Here, where the LLC member as-
Washington and McCleese. Trial Judge: Ramsey Johnson. sumed control over the litigation in the first proceeding, attempted
to appear as a representative of the LLC in that proceeding, and
FACTS: The plaintiffs in this case were a member of a limited li- wrote checks during that proceeding on behalf of the LLC, the
ability company (LLC) and the LLC itself. Plaintiff LLC member LLC member and the LLC were in privity such that the member
refinanced an interest in a mix-used property, borrowing $545,000 was bound by the judgment of possession against the LLC mem-
secured by a deed on the property. Plaintiff LLC was the tenant of ber. On the issue of the consumer protection claim, the LLC and
the property. Plaintiff fell behind on his loan payments, the note was the LLC member did not acquire or own the property in question
accelerated, and the property was foreclosed upon. The lender as- for personal, family, or household reasons. Rather, they owned it
sumed the role of landlord on the lease. The LLC failed to make and rented it out. As such, they were not consumers and therefore
lease payments, and the lender sued for possession. The lender ob- could not make a claim under the D.C. CPPA.
n 35 n
In Memoriam: Edward Charles Bou
(1930-2015)
Written by Lawrence K. Bou
Edward Charles Bou was not sure that he ing events. His clients adored him. Ed In 1986, The Trial Lawyers Association
wanted to be a lawyer. A career in medi- was warm and comforting. He was an of Metropolitan Washington, D.C. hon-
cine may have been more likely. His fa- effective communicator and his calm de- ored Ed “in recognition of his substantial
ther, Alfredo Bou, was a physician as was meanor and command of the law put his contribution in support of the fair admin-
his paternal grandfather. Graduate stud- clients at ease. Ed was “old school” and istration of justice in the District of Co-
ies in business were also an attractive al- had a strong work ethic. He got excellent lumbia”.
ternative. But then again, his maternal results for his clients. They appreciated
grandfather, Edwin C. Brandenburg, was his dedication and rewarded him with In the landmark case of Ward v. Nation-
a lawyer and nationally acclaimed expert their loyalty. wide Automobile Insurance Co, 328 Md.
in bankruptcy law, and the professor that 240, 614 A. 2d 85 (Md. 1992), Ed repre-
he admired most during his studies at the Ed’s father and grandfather were native sented six Plaintiffs who were injured
Wharton School of Business at the Uni- born Puerto Ricans, the source of Ed’s flu- in a motor vehicle accident in Maryland.
versity of Pennsylvania was a lawyer. The ency in Spanish. Ed’s Hispanic background The Plaintiffs were covered under an
professor thought that Ed had great po- put him in touch with the wider Latino automobile insurance policy that was
tential as a lawyer and he was right; how- community. He was a member of the executed and delivered in the District of
ever, it was not to be realized for three Hispanic Bar Association, American Bar Columbia by the Defendant, Nationwide
more years while he served in the United Association, District of Columbia Bar As- Mutual Automobile Insurance Company.
States Navy. sociation, Maryland State Bar Association, Nationwide had denied Plaintiffs’ claim
Inter-American Bar Association, Ameri- for PIP benefits on the theory that, un-
In 1958, Ed graduated with distinction can Trial Lawyers Association, American der District of Columbia law, the Plain-
from the American University Washing- Judicature Society and served on the Board tiffs must elect either to receive PIP ben-
ton College of Law. At that time, there of Governors for the Trial Lawyers Asso- efits or to maintain a third-party liability
were only 6,000 attorneys in Washington. ciation of Metropolitan Washington, D.C. claim, but that the Plaintiffs could not
He “hung his own shingle” as a solo prac- elect both. The Maryland Court of Ap-
titioner specializing in civil and criminal At an ecclesiastical trial, Ed was co-coun- peals disagreed and held that (1) the law
cases. Over the years, his law practice sel to Reverend William A. Wendt, an of the District of Columbia governing
grew and eventually included two of his Episcopal priest who was found guilty PIP coverage and PIP benefits was con-
sons who are attorneys, Stephen and Law- by the church of violating doctrine when trolling; and (2) that the Plaintiffs were
rence. Ed’s daughter, Wendy, also worked he allowed a woman in 1975 to celebrate entitled to PIP benefits under their un-
as a book keeper for the law firm. He Mass at St. Stephen and the Incarnation der automobile policy notwithstanding
instilled loyalty in his staff and provided Episcopal Church in Washington; two that they chose to pursue third-party tort
them with catered lunches, vacations, din- years later, the church decided to admit liability claims. In short, if an accident
ners and tickets to the theater and sport- women to the priesthood. occurred in Maryland and the claimant
n 36 n
is a D.C. resident with a D.C. insurance policy, the
D.C. resident could still maintain a liability claim in
Maryland.
In 1998, in recognition of his exemplary support and
leadership, the American University Washington
College of Law presented Ed with the Myers Award,
named for the esteemed former dean of the law
school, John Sherman Myers, and his wife, Alvina
Reckman Myers, “whose singular support for the
school has created a company of like-minded others
among whom the awardee is preeminent”.
In 2003, the Hispanic Law Students Association of
the Washington College of Law honored Ed for his
generosity and continuing support of the Washing-
ton College of Law and future Hispanic lawyers and
the community.
In 2007, the Washington College of Law honored Ed
with the inaugural Edward Bou Hispanic Alumni
Award.
Ed’s peers ranked him at the pinnacle of professional
excellence. Martindale-Hubble awarded him a rating
of AV Preeminent, the highest possible rating in both
legal ability and ethical standards.
Ed gave back to the community. For decades, the
“Oso Blanco” provided outstanding pro bono legal
services to Centro Wilson and EOFULA/Spanish Se-
nior Center in Washington, D.C. His dedicated ser-
vice, leadership, faithfulness and unwavering com-
mitment made a difference in the lives of many in the
Hispanic community.
Ed was a founding member and attorney for the
Washington Hospice Society and the St. Francis Hos-
pice Society. For decades, he funded a meal for the
poor at the St. Stephen and the Incarnation Episcopal
Church which later became part of their Loaves and
Fishes program. He also funded annual scholarships
at several universities, mostly for international stu-
dents who could not receive financial aid.
Ed was never afraid to litigate a case and understood
the “power of a lawsuit” as the only way to obtain a
favorable settlement for his clients. He was a giant in
the legal community and will be sorely missed. Ed’s
accomplishments and generosity touched the lives of
many and will never be forgotten.
n 37 n
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n 39 n
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n 40 n
TRIAL LAWYERS ASSOCIATION OF METROPOLITAN WASHINGTON, D.C. MEMBERSHIP APPLICATION
Name:______________________________________________________________________________________________________
Firm:_______________________________________________________________________________________________________
Mailing Address:_____________________________________________________________________________________________
____________________________________________________________________________________________________________
Phone: ( ) _____________________ Fax: ( ) _____________________ Email:___________________________________
Bar Admissions: State(s) _______________________________________________ Year(s) ________________________________
______ % of my practice is in defense of tort/insurance claims.
______ % of my firm's practice is in defense of tort/insurance claims.
______ % of my professional time is devoted to representing tort or civil-rights plaintiffs, workers-
compensation or Social Security claimants, or criminal defendants or suspects.
______ % Other
Referred by: ________________________________________________________________________________________________
Dues (payment must accompany application): Annual dues apply from January 1 through December 31. Please check the
appropriate category and mail this application to TLA- DC with your dues (payable to TLA-DC) or with the completed credit
card information below.
_____ $590 Sustaining Member***
_____ $295 Regular Member*: admitted to Bar for 10+ years
_____ $220 Regular Member*: admitted to Bar for 5-9 years
_____ $140 Regular Member*: admitted to Bar for 1-4 years
_____ $ 95 Regular Member*: admitted to Bar for less than 1 year
_____ $ 50 Associate Member **
_____ $ 35 Student Member **
$_____ enclosed or
Card No.________________________________________________________________________ Exp. _______________________
Signature of Applicant:
___________________________________________________________________________________________________________
By my signature I certify that the information that I've provided is true, accurate, and complete.
Dues are not deductible as a charitable expense; they may be deductible as a business expense. A percentage of dues are used
for lobbying and are therefore not deductible at all. Please call Mary Zambri, Executive Director, at 202-659-3532 if you
have any questions.
*Regular Members are lawyers in good standing who devote a substantial part of their professional time to advocating on
behalf of plaintiffs in personal-injury, wrongful-death, or civil-rights matters, claimants in workers-compensation or Social
Security matters, or the accused in criminal investigations or prosecutions. They are entitled to attend and vote at all TLA-DC
membership meetings, to participate in all TLA-DC educational programs, to serve on TLA-DC committees, and to serve as a
TLA-DC Governor or officer.
**Associate Members are lawyers who specialize in other practice areas, law-school graduates, law-school students, paralegals
or legal assistants employed by TLA-DC members, or retired TLA-DC members. They may participate in TLA-DC
membership meetings and educational programs, serve on TLA-DC committees, and avail themselves of many of TLA-DC's
wide array of services and benefits.
***Sustaining Members are Regular Members whose generous support of the Association is recognized in every TLA-DC
publication.
TRIAL LAWYERS ASSOCIATION OF METROPOLITAN WASHINGTON, D.C.
1919 M Street, NW, Suite 350, Washington, D.C. 20036
Attention, Mary Zambri, Executive Director • phone: (202) 659-3532 • fax: (202) 775-9040
e-mail: [email protected] • website: www.tla-dc.org
n 4411 n
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