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MDSPE seeks to strengthen law, prevent frivolous lawsuits


Posted October 15, 2018

What started as a modest work task ended with hefty legal bills and a painful demonstration of one shortcoming in Maryland law.

A builder had asked EBL Engineers to assess one aspect of a condominium project which had raised questions with the fire marshal. EBL concluded the situation conformed with an equivalent section of the fire code and drafted an equivalency letter for the builder. 

But when a building inspection later documented deficiencies with the facility, a lawyer representing condominium owners recommended they sue every company that had any involvement with the construction project.

“Nobody said there was anything wrong with the work we did,” said Ed Hubner, Principal with EBL Engineers. 

Yet the claimant’s lawyer made sweeping requests to EBL for documents associated with the project, including drawings, computer files, letters and construction documentation. To ensure it didn’t release proprietary information, EBL had to contract a lawyer to vet every document before handing it over. Lawyer’s fees, understandably, rose quickly. When the bill for vetting documents reached $20,000, EBL’s lawyer suggested it might be cheaper to settle with the plaintiff rather than contest the suit even though there was no evidence of negligence on the part of EBL.

“I don’t have any problem taking responsibility for my work,” Hubner said. “I do have a problem with a lawyer telling me I did something wrong even though they don’t have any professional grounds to justify that claim.”

In theory, the “certificate of merit” provisions within Maryland law is supposed to protect professional engineers from law suits that are frivolous or worse. It requires a claimant to obtain a certificate of merit from a qualified expert, such as another professional engineer, who has reviewed the situation and can attest “that the licensed professional failed to meet an applicable standard of professional care.”

In reality, that safeguard doesn’t always work. 

Hubner, who has served as an expert witness in some lawsuits, has seen cases that were permitted to proceed even though the claimant never obtained a certificate of merit.

In some cases, claimants’ lawyers have attempted to intimidate engineers (or swamp them with legal bills) by requesting extraordinary numbers of documents while the claimant works to obtain a certificate of merit. 

“Legally, they can’t just go on fishing expeditions through your files,” said Chris Costello, Senior Partner with Public Sector Consulting Group.

Yet when an engineer is faced with the threat of lawsuit, it can be difficult to determine what requests they should or shouldn’t comply with, Costello said. 

“Some attorneys use these unreasonable document requests as a means to intimidate the other party into settling lawsuits,” he said. “Some engineers end up paying for damages they didn’t create simply because the cost of going through discovery is too high. That’s not justice.”

The current situation creates additional problems. Lawsuits, legal expenses and legal settlements can drive up insurance costs for professional engineers. The prevalence of lawsuits by certain types of clients, such as condominium associations and property developers, can also prompt engineers to avoid doing work for those market segments. 

Consequently, the Maryland Society of Professional Engineers is working to improve the law. MDSPE plans to lobby members of Maryland’s General Assembly to pass an amendment that would require claimants to get a judge to approve their requests for documentary evidence for a certificate of merit. Those documents would be limited to items that are reasonable, relevant and “otherwise discoverable.” This added step would also reinforce the existing requirement that claimants obtain a certificate of merit in order to proceed with a lawsuit against a professional engineer.

“We want to make sure the document requests are reasonable and the certificate of merit requirement is followed,” Costello said. “That serves everybody’s interests.”




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