Photo © Alex McGregor (cc-by-sa/2.0)


By Jon D. Pels, Esq.

In the early 2000s, a client walked into my office. He was an intimidating gentleman. His tattoos made him look like somebody out of central casting playing a biker in a biker gang.

He had spent the better part of his savings on a brand new home, which was a manufactured home that cost him about $50,000. His complaint? His home did not have footers to the frost line. He brought in a manual that clearly showed a mobile home, or at least what I thought was a mobile home, on the front.

The manual seemed to indicate footers to the frost line were required by the manufacturer. So, after meeting him and getting retained, I sent a simple letter to the mobile home park where the home is situated and also where the dealer retailer from whom he bought it was located.

The response was nothing short of a door being slammed in your face. The gist of it was that the county did not require footers for use in mobile home parks because they are, after all, mobile. More astonishing was that almost every county in the state of Maryland did not require footers to the frost line because these were mobile homes.

We learned this after having filed a lawsuit. It seemed that our case was at its bitter end.

However, my client spent his life’s savings, as many of us do, on his home and he was proud of it, as I am of mine. The manufacturer’s instructions seem to clearly indicate footers to the frost line were required but the defendants in what was my class action hired one of the best defense firms in the state of Maryland. Bob Ferguson and I have become friends after years of litigating this case against each other. Given his military and engineering background, he is one of the best in any construction defect type case in the state. He did not disappoint in our case and, partnering him with some of the best experts money could buy, created a formidable opponent.

Still we pieced together what we could and felt we were right. Most importantly, I turned to the learned treatise exception to the hearsay rule. I spoke to my geotechnical engineer and asked him whether this footer issue seems to be something that should be so obvious that we should not even need an expert. We had him write a report explaining that these homes are not really mobile anymore. It costs almost as much as the purchase price of the home to move it and none of these homeowners have that ability. Once the home is set, it almost always stays set where it is. If you do not have footers to the frost line, the heaving in the winter and the thawing in the spring and summer creates racking, which destroys the homes. They become out of level–doors swing open and cracks even appear in the home.

I will never forget that I was at mass at Blessed Sacrament Church in Washington, D.C. on Sunday with my wife and our five kids and somewhere I saw the following words: “A wise man digs down and builds his house upon a rock.” I wanted to give the correct impression that having a home sit on a proper foundation to the frost line is as old as the sea and it is not some newer trivial matter that we ginned up. I asked my expert if he believed that statement from the Bible was reliable. His answer was an emphatic “yes!”

So I created the first rule for my case, with credit to the holy Bible: “A wise man shall dig down and build his house upon a rock.” SOURCE: Gospel of Matthew (7:24–27) and Luke (6:46–49).

My expert testified at the daylong hearing for class certification. Judge Lenore Gelfman, the circuit court judge that ultimately certified my class action, seemed to receive this rule well. I also think everybody in the courtroom watching got a huge kick out of it.

Eventually, I got to the head engineer for the state of Maryland, Kanti Patel. I will never forget the moment, with a room full of lawyers squeezing in at the state headquarters near Baltimore to hear his testimony. His testimony was something like the following: “Mr. Pels is right. All of the counties are wrong and these homes need to have footers to the frost line.” I wrote a huge dollar bill sign on my notepad and tried to cover up my smile.

It seems that the laws of physics apply equally on either side of the fence, whether you live in a mobile home park or outside of it.

The key to winning this case were the rules I created, which are featured now in Pat Malone’s excellent litigation support book, The Rules of the Road. Malone found my rules interesting and has become a good friend over the years. In this case, we created a roadmap with steppingstones numbered one through 50 that no one could credibly dispute. It started with that foundational one from the Bible, which is as old as the tides from where it flowed.

The defense’s experts did not look credible. We ultimately settled the case. Trial Lawyers for Public Justice found out about the case and nominated me for the Trial Lawyer of the Year award in 2007. I was in Alabama litigating the case when I received a notice from the Maryland Trial Lawyers Association that I had in fact been selected as the winner. I have no political connections with the Trial Lawyers and truly felt honored for them to select me because it was a litigious case that took a lot of time and resources that we advanced on behalf of our client as the class representative.

Litigants need to understand the exception inside and out to be able to use it properly. It astonishes me that many very good trial lawyers even to this day do not fully understand the rule and exception. I have had one say to me, “Well, if the expert didn’t put it in his report and actually rely on it in informing his opinions in the report then it’s useless.” This is not true. For this exception to the hearsay rule to apply, the expert needs to bless either the source, e.g. the author, or the actual statement, whether or not it is in his report. An expert can never put every source into a report. Some things are so fundamental that of course he has used them even though he might not cite them specifically in his report. Remember, if the source or the actual statement is deemed reliable, it can be read to the jury or the judge and the damage is done. You can even use the opposing parties’ experts to get them to agree that the source or statement is reliable.

Most of the “jukebox” experts these days, or ones that you put a quarter in and they will sing any song, will simply deny that it’s reliable. When you point out that it was written by some of the same associations that they are members of, it hurts the credibility of this expert.

It is really important to create these rules early on in the case. The clients are often great assets because they are so vested in finding sources. Remember that your rules are a living breathing document that will be amended from time to time, but can be used over and over in briefing the case. They also can be used to buttress your client’s expert opinion, making the expert’s testimony as Daubert-proof, i.e., admissible, as possible. If your expert is citing two treatises that are reliable and uses them to form his opinions, it is not likely that a judge will exclude his opinions.

I now use the rules strategy in almost every case, especially complex civil ones. Without them, I do not think we would have won this case. And without our successful use of the learned treatise exception to hearsay rule, it is unlikely that our approach would have carried the day.