This is David B. Stratton's Typepad Profile.
Join Typepad and start following David B. Stratton's activity
Join Now!
Already a member? Sign In
David B. Stratton
Passed the bar in December, 1980-- then 6 and a half years in the Marine Corps, the rest in private practice in Washington, D.C. in a civil litigation defense firm, Jordan Coyne LLP
Recent Activity
"Can cell phones cause brain cancer?" With that question, which he did not answer, Judge Weisberg of the Superior Court for the District of Columbia began a 76-page discourse on the admissibility of the testimony of eight plaintiffs' experts in the DC cell phone litigation. The Court excluded the testimony of some of the Plaintiffs' experts and did not exclude the testimony of others. The Court, based on the extensive record before him, clearly found the scientific evidence too inconclusive for any scientist to say to a reasonable degree of scientific certainty whether cell phones can cause brain cancer. The Court's opinion included this sobering plea to other branches of government to do the research necessary to figure this out: Even though the financial and social cost of restricting such devices would be significant, those costs pale in comparison to the cost in human lives from doing nothing, only to discover thirty or forty years from now that the early signs were pointing in the right direction. As the inconclusive results of the IARC Monograph make clear, more research is necessary to answer definitively the fundamental question of carcinogenicity. If the probability of carcinogenicity is low, but the magnitude of the potential harm is high, good public policy dictates that the risk should not be ignored. See Richard Posner, Catastrophe: Risk and Response (2004). The court recognizes, however, that policy debates of this kind do not belong in the judicial branch. Continue reading
Posted Aug 10, 2014 at Insurance Defense Blog
I had previously written about judicial estoppel and lack of standing defenses that could arise from a plaintiff's prior bankruptcy filing. There is a recent decision in the District of Columbia in which judicial estoppel barred a plaintiff's personal injury claim, after the plaintiff had failed to disclose the claim in bankruptcy proceedings. To prevail on such a motion, however, it is probably necessary to show a clear financial benefit accruing to the plaintiff from the failure to disclose the claim in bankruptcy. Continue reading
Posted Aug 9, 2014 at Insurance Defense Blog
In a recent case, a homeowner brought suit in Maryland federal court against her insurance broker for negligence, breach of fiduciary duty, negligent misrepresentation, intentional misrepresentation, and fraud, after her house sustained fire damage when the contents of the house were not insured. The Court threw out the breach of fiduciary duty and fraud counts, but held that the defendants had not submitted enough evidence to prevail on the affirmative defense that insurance would not have been available on the property. The house had been insured by Chubb, but Chubb cancelled the policy for nonpayment after having insured it for years. Subsequently the bank holding the mortgage ordered lender-placed insurance coverage on the house. The bank notified the homeowner that the lender-placed insurance would not only cost more, but does not provide any coverage for loss or damage to personal property and provided limited coverage in other respects. A couple of months later, the homeowner, who had been traveling, and having realized that the Chubb policy had been canceled, asked her insurance broker, whom she had known for several years and had become good friends with her, to see what could be done, and send him a package of materials concerning the lender-placed insurance. Upon receipt of the package, the broker passed it to a customer service representative of his firm, and gave instructions to find a new insurance policy for the client. The customer service representative initiated steps to find a new insurance policy, but delayed on following up.... Continue reading
Posted Mar 2, 2014 at Insurance Defense Blog
From time to time there are articles like this one published in the New York Times last March, attacking the billable hour as the basis for billing clients for services rendered. Such articles usually have two themes -- that the billable hour results in legal services costing too much, and that the billable hour system is in many ways corrosive to the legal profession. Alternative billing arrangements are usually held up as the solution that might magically benefit everyone. However, these are two different issues. The measures clients impose to control their legal spend are a separate issue from law firms' internal culture. Insurance defense firms usually are not mentioned in this debate, because we all have been operating under layered cost controls at least since the late 1980's. These layered cost control measures have long included pre-negotiated and below market billing rates; stringent litigation management guidelines that require pre-authorization for extra staffing, for filing of motions, for depositions, for legal research over a minimal amount, and for other selected activities; detailed litigation plans, which have been a requirement dating back to the 1990's (predating the legal project management fad by at least a decade); detailed budgets organized by standardized ABA uniform task and activity codes; detailed and contemporaneous time records, with each entry coded with the uniform task and activity codes; submission of electronic bills in standard formats, to facilitate automated review and analysis of the bills; routine reviews of bills by claims departments or third party auditing services,... Continue reading
Posted Aug 18, 2013 at Insurance Defense Blog
A D.C. decision touches on effect of a bank's use of overseas calling centers on the privacy of customer finanical records. Creative. Continue reading
Posted Aug 1, 2013 at Insurance Defense Blog
Download Google52e4f6fe6091e83f Continue reading
Posted Jul 30, 2013 at Insurance Defense Blog
We've posted an article on the effectiveness of written indemnity agreements in the District of Columbia. Continue reading
Posted Jul 24, 2013 at Insurance Defense Blog
It's so annoying to have to search every time I want to use the DCRA's Corporations Division CorpOnline Portal. Why does the DCRA make this so hard to find? This is where to go for online search of all registered District of Columbia entities with expanded entity information. This is the DC equivalent to Maryland's State Department of Assessments and Taxation website. Continue reading
Posted Jun 11, 2013 at Insurance Defense Blog
The Time magazine article, "Bitter Pill - Why Medical Bills Are Killing Us", by Steven Brill, contains important insights about medical billing practices that are relevant to personal injury litigation, and medical debt litigation. This article not only should be read, but it should be kept on file for training purposes. On the defense side, it is commonplace for medicals to be the foundation for the evaluation of worst case exposure of a claim, and of a reasonable settlement range. Therefore if the medical bills are grossly inflated, the amount paid on the claim will be too. It's common knowledge that health care providers charge extra to cover the cost of care provided to the uninsured, but Brill's article is shocking because it shows that medical bills are inflated many times beyond that. On the plaintiff's side, the incentive to question the gross amount of medical bills arises with a vengeance after a settlement is reached, and negotiation of the medical liens begins. It is estimated that over 60% of personal bankruptcies are due to medical bills. Brill's article is a roadmap of the various ways in which the "sticker price" of medical care is egregiously inflated. The article also contains references to medical billing advocates, who are a breed of consultants who provide critical analysis of the charges in medical bills and who can help negotiate compromises on the bills. These consultants may have relationships with the Alliance of Claims Assistance Professionals or Medical Billing Advocates of America. The... Continue reading
Posted Mar 3, 2013 at Insurance Defense Blog
I've previously remarked that litigation arising from Metrobus accidents is now starting to feature video from drivecam systems on the buses. WTOP has recently posted more detail about Metrobus drivecam systems, including sample videos that they have obtained from Metro. The video from the drivecam system is clearly something that has to be pursued in discovery in any collision involving a bus, and further, the existence of such evidence should be pursued in any litigation involving a commercial vehicle. (Hat tip to Christopher Mitchell.) Continue reading
Posted May 14, 2012 at Insurance Defense Blog
In this case a security guard allegedly had repeatedly confronted an African-American and Muslim family in a shopping mall, ordering the mother to remove her traditional Muslim headgear or be forcefully removed. In the second confrontation, the security guard allegedly pulled a knife while violently yelling, among other things, "Come on . . . come on . . . I have not tasted blood in a long time." (The security guard eventually plead guilty to criminal charges of second degree assault and assault with a dangerous weapon.) Woods v. AlliedBarton Security Services, LLC, No. 11-2831 (D. Maryland Feb. 9, 2012)(unpublished) is a suit by the terrified family against the security guard, his employer, and the firm that hired them, that started off in the Circuit Court for Baltimore City. After the action was pending for many months and the plaintiffs failed to serve the security guard, the Circuit Court dismissed the security guard as a defendant "without prejudice." At that point, the remaining two defendants seized their opportunity, and removed the case to federal court based on diversity jurisdiction. By doing so, the remaining defendants would be able to try the case while pointing at an "empty chair" as the truly culpable party, and would also be able to subject the plaintiffs' damages experts to the rigors of a Daubert challenge. The first thing that the plaintiffs did after removal was to serve the security guard with the Circuit Court summons, and then move to remand the case to State... Continue reading
Posted Feb 10, 2012 at Insurance Defense Blog
Who says it is a do-nothing Congress? Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011 on 12/2/2011, which now awaits the President's signature. Among other things, this statute makes significant adjustments to diversity jurisdiction. The amendments are helpful in a case involving multiple defendants, because the statute resolves a disagreement between the Circuits. Every defendant will now get 30 days to remove, however, the defendants will still need to be unanimous as to the removal decision. Where removal is based on federal question jurisdiction, there is a provision that requires the severance and remand of state claims not within original or supplemental federal jurisdiction. That provision requires some caution, because removal could result in the client having to defend two lawsuits instead of one. A summary of the bill is available at this post on ProfsBlawg. Thanks to the Civil Procedure and Federal Courts Blog for the link. Continue reading
Posted Dec 4, 2011 at Insurance Defense Blog
A search should be conducted early in every case to determine if the plaintiff has filed for bankrtupcy. There are a number of good reasons to do so. DRI published a recent article on its website concerning the defense of judicial estoppel arising from the plaintiff's failure to disclose his or her claim as an asset in the bankruptcy proceedings. There is quite a bit of case law on judicial estoppel arising from bankruptcy. Another way in which bankruptcy proceedings can negatively impact a plaintiff's suit was recently illustrated by the case of Kocher v. Campbell, a decision of the Virginia Supreme Court that came out last June. In Kocher, the Court considered the issue whether the plaintiff in an action to recover damages for personal injuries had standing to maintain his action after filing a petition for bankruptcy, causing his claim to become an asset of his bankruptcy estate. The Court held that the plaintiff lacked standing, and dismissed the case. The plaintiff was involved in a motor vehicle accident, and before filing a lawsuit the plaintiff filed a voluntary Chapter 7 petition in bankruptcy. His petition failed to disclose his personal injury claim as an asset in Schedule B, and failed to list it on Schedule C as an exempt property. About three months later, plaintiff received a standard discharge in bankruptcy. The plaintiff then filed his civil action based on the motor vehicle accident. This was nonsuited then refiled and served. The defense filed a motion for... Continue reading
Posted Nov 22, 2011 at Insurance Defense Blog
As a young associate, I once read an ABA pamphlet on how to manage a law practice, and one of the recommendations was to have a regular meeting of all attorneys, at which one of the agenda items would always be "trouble and how to meet it." The idea is that usually you can see trouble coming at you from down the road, and that's precisely when an attorney needs the collective wisdom and experience of the firm. Trouble and how NOT to meet it is illustrated by the recent decision of the Virginia Supreme Court in Landrum v. Chippenham and Johnston-Willis Hospitals, Inc. Landrum was a Virginia medical malpractice case in which the plaintiff was represented by an out-of-state counsel from Missouri, with Virginia local counsel. The Virginia Supreme Court affirmed the trial court's exclusion of the plaintiff's expert witness designations for failure to have them signed by local counsel, and the summary judgment in favor of the defense based on the plaintiff's lack of expert testimony. The trouble was coming down the road for a couple months before the end. Plaintiff's intial effort at expert witness designations failed to state the substance of the facts and opinions to which the experts were expected to testify and a summary of the grounds for each opinion. The defense moved to exclude the expert witnesses and for summary judgment. Plaintiff then attempted to cure the deficiency by providing the expert witnesses' reports, but failed to supplement the designation. There was a... Continue reading
Posted Nov 18, 2011 at Insurance Defense Blog
Steve Job's passing was very sad; not because it was unexpected, as he was obviously ill, but because maybe we've lost his values. Jobs really believed in delivering quality; he wanted to make great products and did. Apple products typically cost more, but the extra cost was reflected in the quality of manufacturing and the quality and simplicity of the controls. It is interesting to recall that Jobs was forced out of Apple in 1985, and returned around 1996. I seem to recall reading articles in the financial press around that time that Apple was finished. I purchased an Apple computer for home use in the early 1990's, from Apple without Steve Jobs; I still have it in the basement. It was a PowerPC, and while it was good, it was not great. In fact, when it had a problem, it took a lot of time and trouble to fix the problem. I recall some long sessions on weekends doing this. A couple of times, I could only get it working again by upgrading the operating system. I remember having to buy a special utility program that would sort out conflicts among program extensions. When Jobs returned, it wasn't long before he ditched that operating system, and had a new OS built on Linux. That was a gutsy move, as it risked alienating their user base. At about that point, I myself switched to Windows computers for home use, for compatibility with the Windows software I used at the office.... Continue reading
Posted Oct 7, 2011 at Insurance Defense Blog
I previously noted the legal malpractice claim that Joseph Stiglitz, the famous economist, brought in D.C. against his divorce lawyer. The outcome of the trial was covered by the Legal Times, among others. That trial was a good case study of how to hamstring a professional plaintiff from testifying as an expert on his own behalf. Here, the defense, represented by Richard A. Simpson, Esq., was able to obtain a ruling that Joseph Stiglitz, a nobel prize winning economist, could not testify on his own behalf concerning his own damages, where his damages were among other things his own stream of royalty income and the value of his own time. This turned out not to matter so much, as the jury verdict for the defendant on liability meant that the jury never even had to reach the damages issues. In his expert witness disclosures, Stiglitz included himself among his designated experts, albeit without much specificity. Rather, his counsel simply incorporated Stiglitz's deposition testimony and discovery responses. However, the expert witness disclosures were vulnerable to attack. First, the defense moved to strike the testimony of Stiglitz's retained damages expert, Michael Cragg. The main line of argument was that Cragg's Rule 26(a)(2) report was not submitted until a week before the close of discovery, and more than a year after the deadline for such reports. Cragg's untimely report included a discussion of the value of Stiglitz's lost time and the value of his book royalties, among other things. The Court granted the... Continue reading
Posted Sep 8, 2011 at Insurance Defense Blog
In Hedgepath v. Whitman Walker Clinic, No. 07-CV-158 (D.C. June 30, 2011), the D.C. Court of Appeals, sitting en banc, held that the plaintiff, who was negligently informed by a doctor at the Whitman Walker Clinic that he was HIV positive, when in fact he was not, could sue for negligent infliction of emotional distress, even though the alleged negligence did not place the plaintiff within a "zone of physical danger." The Court reversed the trial court's summary judgment in favor of the defendants, and remanded the case for further proceedings. The Court recognized a duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiff's emotional well-being or the plaintiff's emotional well-being is necessarily implicated by the nature of the defendant's undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant's negligence. The Court concluded that in this case, the defendants, in the context of a doctor-patient relationship, undertook to test and treat the plaintiff for HIV, an undertaking that would necessarily implicate the patient's emotional well-being and entailed a specially likely risk of serious emotional distress. The plaintiff did not find out that he was misdiagnosed as being HIV positive for five years, and presented evidence of serious emotional distress as a result of the misdiagnosis. The new rule does not replace the prior "zone of danger" rule, but is a supplement to it. The... Continue reading
Posted Jul 4, 2011 at Insurance Defense Blog
The Blog of the Legal Times reports on a legal malpractice trial in the U.S. District Court for the District of Columbia (No. 05-1826) in which the plaintiff, the Nobel prize winning economist Joseph Stiglitz, has sued his former divorce attorney. Judge Leon is presiding over the trial. Continue reading
Posted Jul 3, 2011 at Insurance Defense Blog
In Ruffin Hotel Corp. of Md., Inc. v. Gasper, ___ A.3d ___ (Md. March 21, 2011), which was a retaliatory discharge case, the Maryland Court of Appeals held that it was error to instruct the jury that that plaintiff is required to prove that her opposition to the unlawful harassing conduct was a "determining" factor in the decision to terminate her employment; rather, it was only necessary for it to be a "motivating" factor in the decision. The Court also held that a negligent hiring and retention claim was not preempted by federal law, by Maryland anti-discrimination statutes, or by the Maryland Workers Compensation Act. Last but not least, the Court of Appeals held that Maryland Rule 5-404(b) is applicable only in criminal matters, not in a civil matter like this. Therefore, on retrial, the trial court need only apply Maryland Rule 5-403 on the issue whether her immediate supervisor's prior history of sexual harassment is admissible: Because the foundational requirements of FRE 404(b) are so vastly different from the foundational requirements of Md. Rule 5-404(b), we are persuaded that Md. Rule 5-404(b) should continue to be applicable only to evidence offered by the State against the defendant in a criminal case. In civil cases, whether the evidence at issue is offered by a plaintiff or by a defendant, the admissibility of relevant evidence that presents the "possibility of [unfair] prejudice is to be dealt with pursuant to [Md.] Rule [5-] 403." From the defendant's point of view, the net... Continue reading
Posted May 30, 2011 at Insurance Defense Blog
In Norman v. Borison, ___ A.3d ___ (Md. April 22, 2011), the Maryland Court of Appeals held that lawyers who published copies of their state complaint to the press before it was filed in court, and made oral statements to the press about the suit, then republished filed versions of their federal complaints on the internet, were protected by an absolute privilege. However, the Court's holding on this contained a warning that lawyers who choose to try their cases in the press may do so at some peril: We are not prepared to say that plaintiffs are prohibited from promoting preemptively their class action suit, before they have been certified as such, or that they must avoid verbal communications to the press in doing so — provided framing the suit as a "class action" status is not shown to have been a subterfuge for funneling defamatory statements to the press. Such public promotion, under the latter proviso, is not part of the proper prosecution of most tort claims. Indeed, but for the fact that the mortgage rescue scam suit was striving to become a class action, our conclusion might have been different. The Kennedy adage retains vitality — lawyers who try their cases in the media do so at some peril. See Kennedy, 229 Md. at 99, 182 A.2d at 58. Continue reading
Posted May 30, 2011 at Insurance Defense Blog
In Barksdale v. Wilkowsky, ___ A.3d ____ (Md. May 23, 2011), the Maryland Court of Appeals reversed a defense verdict in a Baltimore City lead paint poisoning case, due to prejudicial error in the jury instructions. In doing so, the Court reviewed Maryland law as to when an error in jury instructions is reversible error, and when it is harmless error. In the lead paint poisoning trial, the trial court gave an instruction regarding the joint responsibilities of landlords and tenants in keeping the property in good condition. This instruction was essentially the reading of a provision in the Baltimore City Housing Code. The Court found that this instruction was error, because neither the plaintiff's contributory negligence nor negligence of her family members were at issue in the case. The Court of Appeals found that this instruction was prejudicial, because it may have permitted the jury to speculate, or may have precluded a finding of liability where it was otherwise appropriate. The Court of Appeals found that the jury instruction as to the occupant's duty to keep the dwelling in a clean and sanitary provision had no relevance to the issues at trial. The plaintiff was a child when she lived in the dwelling, and whether or not her grandmother kept the house clean was irrelevant. Under Maryland law, negligent acts of a parent cannot be imputed to a child, and such negligent acts that merely contribute to an injury do not necessarily rise to the level of a superseding... Continue reading
Posted May 30, 2011 at Insurance Defense Blog
is located at this link. Not bad for a small business either. Hat tip to for the link. Continue reading
Posted Apr 21, 2011 at Insurance Defense Blog
In Hillbroom v. PricewaterhouseCoopers LLP, No. 10-CV-92 (D.C. April 7, 2011), the D.C. Court of Appeals reversed the dismissal of a lawsuit against a tax attorney and an accounting firm for professional negligence, breach of contract and breach of fiduciary duty. The alleged negligence was the failure to timely file a formal claim for refunds for federal estate taxes paid on an estate worth approximately $353 million. The trial court granted the defendant's motion to dismiss under Rule 12(b)(6) based on statute of limitations grounds. The D.C. Court of Appeals reversed. The defendants moved to dismiss based on the three year statute of limitations under D.C. Code sec. 12-301, arguing that the period of limitations began to run at the latest by Dec. 10, 2002, when plaintiffs retained new counsel and admittedly were aware that the defendants had missed the tax refun filing deadlines. The trial court agreed with that, and further found that the plaintiffs suffered a separate injury at the same time when they incurred additional litigation expenses. The Court of Appeals reversed, noting that D.C. precedent contemplates a flexible, case-by-case approach to determining when the period of limitations began to run. Here, the statutory deadlines for filing formal claims for federal estate tax refunds are subject to various exceptions. The Estate had utilized an informal refund claim, for which there is legal authority. The Court therefore reasoned that without reviewing the Refund Claim Memorandum and an expert opinion -- neither of which were in the record --... Continue reading
Posted Apr 20, 2011 at Insurance Defense Blog
Who would have thought that a former head of the SEC would for any reason be struck as an expert witness in a securities fraud case? Yet, that's what happened in In re Fannie Mae Securities Litigation, No. 04-1639 (DDC March 8, 2011). Former SEC Chairman Harvey Pitt had been retained as an expert by the lead plaintiff, and was deposed for a day. However, he refused to continue his deposition after he learned that former SEC Chief Accountant Donald Nicolaisen had been deposed in the action, because he had not had an opportunity to review Nicolaisen's testimony. In their motion the defendants argued that the discovery schedule for expert witnesses had been negotiated with great effort, and that allowing Plaintiffs' to unilaterally delay Mr. Pitt's deposition and then potentially have him change or add to his opinions would upset the schedule, and would waste the time the defense experts had already expended to rebut those opinions. Judge Leon had harsh words for lead plaintiff's counsel for failing to provide Mr. Pitt with that transcript, stating "Of course, the repeated failure of Lead Plaintiffs' counsel to provide Mr. Pitt with Nicolaisen's deposition transcript, both prior to the submission of his expert report, and prior to his deposition, is inexplicable and inexcusable!" The Court pointed out the Lead Plaintiffs' counsel had initiated the litigation which had required the deposition of Mr. Nicolaisen in the first place. The Court struck Mr. Pitt as an expert witness, finding that the prejudice to the... Continue reading
Posted Mar 20, 2011 at Insurance Defense Blog
There was an interesting post on Ron Miller's blog, The Maryland Injury Lawer Blog, on the recent case of Robertson v. Iuliano, No. 10-1319 (D. Md. Feb. 4, 2011). Robertson v. Iuliano illustrates that in a case filed in state court, where diversity jurisdiction would exist but for the presence of forum defendants, and the forum defendants have not yet been served, the non-forum defendant can, in many jurisdictions including Maryland, still remove the action to federal court. In fact, in the Robertson case, the non-forum defendant removed the case to federal court before he or any of the other defendants were served. Under the unanimity rule reaffirmed by the 4th Circuit in its recent en banc opinion, where there are multiple defendants, it is necessary for the other defendants in the case to consent to the removal within 30 days of their being served. Here they apparently did, because they filed oppositions to the motion to remand. The District Court denied the plaintiff's motion to remand. In a medical malpractice case, removal would result in the application of the more stringent Daubert standard for the admissibility of expert testimony, which would be reason enough to do it. I can understand why this result could be viewed by the plaintiffs' bar as unfair, but on the other hand, I've seen many cases where a forum defendant was joined in a complaint for no apparent reason other than to destroy diversity. There was a recent article on this topic in DRI's... Continue reading
Posted Feb 19, 2011 at Insurance Defense Blog