Motion to Strike Cross Claims

Sample Motion to Strike Malpractice Defendant Crossclaim for Contribution

This is a sample motion to strike Crossclaims by a defendant doctor in medical malpractice against co-defendants who were being dismissed out of the case.

So this is how it plays out frequently in large medical malpractice cases with multiple defendants. Plaintiff initially sues a group of defendants including the hospital and numerous treating doctors. We quickly determine who the non-culpable defendants are that were not involved in the medical malpractice. When we don’t point to them, this group of “non-responsible” defendants file a motion for summary judgment. P does not oppose that motion and allow them out of the case.

The remaining defendants don’t want the “non-responsible” defendants to get out of the case so they assert Crossclaims against these co-defendants. The Crossclaims do not accuse the co-defendants of any independent torts. They are basically claims seeking contribution from co-defendants if a judgment gets entered against them… and hopefully an empty chair they can directly or indirectly point to at trial. Malpractice defendants always want to have their cake and eat it, too. Rarely, extremely rarely, do they proffer expert testimony to support their Crossclaims. This motion seeks to strike these types of “contribution Crossclaims.”

In 2020, after this motion was written, the Maryland Court of Appeals issued an opinion in American Radiology v. Reiss which would be an important case to cite for Maryland medical malpractice lawyers to cite in this situation because it clamps down on the aimless finger-pointing at doctors without expert testimony.

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY

Angel Smith, et al.
Plaintiffs
v.
CASE NO.: 447203-V
Acme Hospital Healthcare System,
Inc., et al.

Defendants

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PLAINTIFFS’ MOTION TO STRIKE DEFENDANT SONG’S “CROSSCLAIM”

Now come all Plaintiffs by and through their attorneys Rodney M. Gaston, and Miller & Zois, LLC, and they move to strike Defendant Song’s Crossclaim and in support thereof states as follows:

1. The “crossclaim” filed by Defendant Song is untimely and filed only after Defendant Acme Hospital System Inc., Defendant Riser, Defendant Coleman, and Defendant Hastings filed their Motion for Summary Judgment which will not be opposed by the Plaintiffs.
2. The “crossclaim” is not a true “crossclaim” but a claim for contribution and a claim for a reduction of any judgment that may be ultimately entered against Defendant Song under established Maryland law regarding contribution among joint tortfeasors is premature. Under Maryland law “[t]hose defendants who are held liable to the Plaintiffs are also liable to each other in contribution, with or without a crossclaim, and those defendants who are not held liable are not liable at all.” Murphy v. Board of County Comm’rs 13 Md App. 497, 507-508, (1971). Defendants are trying to forestall this court from granting summary judgment as to defendants Defendant Acme Hospital System Inc., Defendant Riser, Defendant Coleman, and Defendant Hastings under the ruse of a “Crossclaim”.
3. That Defendant Song has not claimed that any of the named Defendants breached the standard of care and or caused any of the damages that the Plaintiffs have alleged in this case.
4. That under Rule 2-331(d), the court is required to dismiss the Crossclaim as the Plaintiffs and Defendants Acme Hospital System Inc., Defendant Riser, Defendant Coleman, and Defendant Hastings, will be prejudiced by this court keeping Defendants Acme Hospital System Inc., Defendant Riser, Defendant Coleman, and in this case when the Plaintiffs have withdrawn all standard of care opinions as to these Defendants and when an unopposed Motion for Summary Judgment on their liability is pending.

WHEREFORE: Plaintiffs respectfully request that Defendant Song’s Crossclaim be stricken.

Related Motions and Resources

• More expert related pre-trial motions
• How emergency room doctors use the empty chair defense (“Usually, as defendants, we stick together. We don’t point a finger at each other…”)
• Example motions in malpractice and other personal injury cases
• The lower court’s opinion in American Radiology v. Weiss is also a good read.