A divided Maryland Court of Appeals took away a Baltimore County jury verdict against Bank of America on Thursday in a case relevant to personal injury lawyers to the extent that it underscores when expert testimony may be needed at trial.
This case appears to be the classic “money-grubber woman takes advantage of an old man” story. BOA allowed said money-grubber to add her name on to the man’s account. After his death, his son looked at the bank statements and brought a claim on behalf of the Estate against BOA for breach of contract and negligence for allowing the woman to be added onto the account in the first place.
The jury bought it, awarding $23,475 on the breach of contract claim and $7,600 on the negligence claim. The Maryland Court of Special Appeals reversed, finding that expert testimony was necessary to establish BOA’s standard of care when adding an individual’s name to a bank account.
The Maryland high court affirmed the CSA ruling, agreeing that expert testimony was required to establish the scope of the bank’s duty unless the alleged negligence so obviously deviated from the applicable standard of care that the jury could appreciate the deviation without expert testimony. Here, the court felt that the negligence was not obvious because the process of fraud avoidance “may occur behind closed doors, out of the sight of the customer, and may involve numerous unknown procedures.”
The dissent says it does not matter how the sausage is made – if the system is flawed the system is flawed so it does not matter what happened behind closed doors. I don’t have a big opinion on this case but I certainly agree that it seems like overkill to have to bring a banking expert in to state the obvious: you have to verify signatures and make sure people have the authority they claim to have.
The problem with this case for consumer lawyers is that it imposes a requirement of an expert witness to prove negligence in cases where the case will not have a large enough upside to justify an expert. Maryland accident lawyers have been using the 10-104 mechanism to get around the need for expert testimony in small car accident cases. But, under this ruling, a lot of valid small cases are not going to be brought because the lawyers and clients will not want to front the money for an expert.