Insurance Preservation: White v. James
The Baltimore Medical Malpractice Lawyer Blog features Maryland personal injury cases that involve issues that arise in medical malpractice cases. In this post, I examine the mention of insurance in a car accident trial and the failure of preservation of the issue for appeal. The case is the Appellate Court’s unreported opinion in White v. James, No. 1070 (November 7, 2024).
Factual Background on Insurance Issue Preservation
The plaintiff filed the case in the Circuit Court for Anne Arundel County.
During the plaintiff’s counsel’s questioning of his client, the lawyer asked the plaintiff who requested her to see the defense orthopedist. The plaintiff responded that she believed it was the defendant’s insurance company. The defense counsel did not object. (Op. at 6).
Later, the plaintiff’s counsel posed a question referencing the “doctor that the defense insurance company sent you to.” This time, the defense counsel requested to approach the bench. The judge then instructed the jury to disregard the last question and allowed the plaintiff’s lawyer to restate the question (Id.).
The jury returned a verdict of $100,000 in favor of the plaintiff. The defense appealed. (Id.)
Appellate Court
The plaintiff argued that the improper mention of insurance was unduly prejudicial and led the jury to grant an unfair award of damages. (Id. at 8). The court stated:
It is well-established that, absent a contemporaneous objection, a lawyer does not preserve a contention about the admissibility of evidence for appellate review. Md. Rule 2-517 states, in pertinent part:
Method of making objections: (a) Objections to evidence. — An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived. (Id. at 9).
On the first occasion that the plaintiff mentioned insurance, the defense did not object. As a result, there was no preservation for appellate review of the insurance issue. The defense could not argue on appeal that the statement was prejudicial. (Id. at 10).
On the second occasion, the defense counsel objected, and the trial judge gave a curative instruction. The defense asked for no further relief. (Id.).
The court concluded that this second instance still needs to be preserved for review. The reason is that the plaintiff introduced the same evidence without objections at another point in the trial. The Appellate Court affirmed the judgment. (Id. at 11).
Commentary by the Baltimore Medical Malpractice Lawyer on Insurance Issue Preservation
Lessons Learned from White v. James: The Importance of Timely Objections
The rules governing the preservation of issues for appeal are simple. However, the challenge for the medical malpractice lawyer is that these rules often require immediate action, with little to no room for error. There is no time to analyze the question, discuss it with the co-counsel, or do research. If missed, the result can be a catastrophic failure to preserve the issue for appeal, potentially leading to an unjust outcome for your client.
Here, the defense was doomed to no preservation by not objecting to the insurance injection in the first place. Once that occurred, the defense did not preserve the issue for appeal, and it did not matter the defense’s response when it came up again.
Strategies for Success: Equipping the Medical Malpractice Lawyer to Minimize Errors
There are certain things that the medical malpractice lawyer can do to minimize the chance of missing an objection to a question. First, it can be very valuable to have a co-counsel focused on the issue while you are doing the witness examination. They can prompt you to object when you don’t see the need. In addition, you can make a motion in limine before trial for any issue you anticipate. You could make a motion to strike if you do not get your objection in before the witness answers. You can also request a curative instruction from the court or a mistrial.
With these tools, the prepared medical malpractice lawyer can minimize the chances of missing any opportunity to preserve appellate issues.
For more information on evidence of insurance and appellate preservation issues, read the Blog posts on Insurance Mistrial: Lewis v. Romero and Preserving Issues for Appeal: Asplundh v. Metzger.
Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.