Appendix — Aloupis v. Roop

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APPENDIX A — DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

DECIDED NOVEMBER 18, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 98-2408

(Submitted November 5.1998 Decided November 18. 1998)

MARY ALOUPIS. CHRIS ALOUPIS.

Plainuffs-Appellants

.

JOHN JOSEPH ROOP, CARGILL. INC

Defendants-Appellees

Appeal from the United States District Court for the District of

Marviand at Baltimore. Marvin J Garbis, District Judge

(CA-98-2597-MJG)

Before

ERVIN, LUTTIG, and MOTZ

Circuit Judges

2a

Appendix A

Marvy Aloupis, Chris Aloupis, Appellants Pro se. Scott

Douglas Goetseh, Semmes, Bowen & Semmes, Baltimore,

Marvland for Appellees

Opnunen) UNPUBLISHED

PER CURIUM

Mary and Chris Aloupis appeal the district court's

order dismissing for lack of jumsdiction their civil action in

which they sought damages for injuries susiained in an

automobile accident. We have reviewed the record and the

district court’ opimon and find no reversible — error.

Accordingly, we affirm on the reasoning of the district court.

Aloupts v. Roop No. CA-98-2597-MJG (D. Md Sept 1, 1998)

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

the court and argument would not aid the decisional process

AFFIRMED

3a

Appendix A

Subsequent to the decision of the United States Court

of Appeals for the Fourth Circuit, the Plaintiffs — Appellants

filed a petition for rehearing as shown below

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED December 29, 1998

No. 98-2408

CA-98-2597-MJG

MARY ALOUPIS; CHRIS ALOUPIS

Plainuffs Appellants,

¥

JOHN JOSEPH ROOP, CARGILL, INCORPORATED

Defendants Appellees.

ORDER

The Appellants have filed a petition for rehearing. The

court denies the petition for rehearing

FOR THE COURT

/S/ Patricia S. Connor

Clerk

4a

Appendix A

After the rehearing demial, the Appellants received the

following mandate from the court, as shown below

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Filed: January 6, 1999

No. 98-2408

CA-98-2597-MJG

Aloupis v. Roop

MANDATE

The judgement of this court dated 11/18/98 takes effect

today

s/ Patricia S. Connor

Clerk

Sa

APPENDIX B — DECISION OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

MARYLAND

DECIDED 27 AUGUST 1998

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Mary Aloupis, et ux

Plaintiff

(

Vs Civil Action

( No. MJG-98-2597

John Joseph Roop and

Cargill, Inc (

Defendants |

MEMORANDUM AND ORDER

The court has before it Plaintiff's response to Show

Cause Order. The court finds that neither a response nor a

hearing is necessary.

Plaintiffs have made clear that they are suing the

named Defendants and not any court or other government

agency. They have also made clear that the relief that they

seek from the Defendants is a recovery for damages sustained

in an automobile accident. They have further made clear that

the underlying dispute has been litigated in the state court

System but resulted in what Plaintiffs’ contend is an

inadequate recovery

: Ut i

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Appendix B

lhe only conceivable basis for an action for recovery

for Plaintiffs automobile negligence claim appears to be the

diversity jurisdiction statute, 28 USC. § 1332. However, the

Plaintiffs and the Defendants are expressly identified as

Marvland citizens. Accordingly, there 1s no diversity

Plaintiffs present the contention that because of the

nature of their injuries, the citizenship issue should have no

bearing in the matter. Plaintiffs are entitled to their view and

can, if they wish, ask their Congressional representatives to

enact a statute providing Federal jurisdiction for their case

However, on the present state of the law, the action cannot

proceed in federal court

The court finally will note that, as Plaintiffs

acknowledge, the case has already been fully litigated in state

court. Therefore, even if this court had jurisdiction, the case

appears subject to summary dismissal.

For the foregoing reasons, this case shall be DISMISSED for

lack of yunsdiction

SO ORDERED THIS 27''"' DAY OF

AUGUST. 1998

‘S/ Marvin J. Garbis

United States Distnct Judge

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APPENDIX C — DECISION OF THE COURT OF

SPECIAL APPEALS OF MARYLAND

DECIDED JUNE 23, 1998

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1902

September Term, 1997

CHRIS ALOUPIS, et al

Appellants,

y

JOHN JOSEPH ROOP, et al

Appellees

Judges Assigned

Harrell,

Evler

Getty, James S. (retired, specially assigned)

Opinion by Harrell, J

8a

Appendix C

Chris Aloupis, appellant,’ seeks reversal of a judgment

of the Circuit Court of Charles County (Chappelle, J.

presiding). Mr. Aloupis, plaintiff below, had sued John

Joseph Roop and Cargill, Inc., appellees, for injuries he

alleged he suffered in a motor vehicle collision occurring on 8

April 1992. After a four-day trial and following the tnal

judge’s grant of appellant's motion for judgment as to

appellees’ liability, the jury returned the following verdict,

according to the docket entry:

Jury assesses damages in favor of Plaintiff,

Chris Aloupis as follows: Post [sic] medical

expenses: 0. future medical expenses: 0. past

loss of earnings: 0. Non economic damages

$2,000.00. total $2,000.00. Jury assess [sic]

damages in favor of Plaintiffs Chris Aloupis

and Mary Aloupis for loss of consortium. 0.

Court enters judgment in favor of the Plaintiff,

Chris [sic] Aloupis and against the Deft. John

Joseph Roop and Cargill, Inc. in the amount of

$2,000.00. Verdict Sheet, filed.”

After the- court denied appellant’s tral counsel’s

motion for new tral and appellant files a pro se motion for

reconsideration of the denial of the new tnal motion; this

appeal was filed pro se. Appellant has proceeded in proper

person in the prosecution and briefing of this appeal.

Appellant’s wife, Mary Aloupis, was also a plaintiff below, but

did not join in this appeal.

. We could find no verdict sheet in the record as transmitted.

9a

Appendix C

ISSUES

Appellant has not framed discretely in his brief any

specific issue(s). The flavor of the content of his brief, as we

perceive it (and as appellees see it for purposes of determining

what to respond to [in their bnef]), suggests that appellant

questions:

I. Whether the jury's’ verdict was

inconsistent and/or against the weight of

the evidence.

II. Whether the trial court abused its

discretion in denying his motion for

new tnial.

10a

Appendix ©

For the reasons that follow, we affirm the judgment

FACTS’

Probably because the court entered a judgment as to

liability against them, appellees readily concede that, on 8

April 1992, a tractor and trailer owned by Cargill, Inc. and

operated by Mr. Roop, struck the rear of a Toyota pick-up

truck occupied by Mr. Aloupis. The collision occurred on

Mattawoman-Beantown Road, near its intersection with

Council Oak Drive, in Charles County, Maryland. As a result

of the collision, Mr. and Mrs. Aloupis (Mrs. Aloupis being

’

We are constrained greatly in this regard The only parts of the

transcripts of the four day tnal, spanning 21-24 July 1997, found in the

record as transmitted to us are. (a) the opening statement on 2! July of

appellant's tnal counsel, (b) the testimony on 22 July of three of

appellant's medical experts, Dr Najymaldin O Karim, Dr Carl H_ Keller,

and Dr Dennis Fitzgerald, (c) the testimony on 23 July of appelees’

medical expert, Dr David Buckholtz, and, (d) an excerpt of the 24 July

closing argument of appellant's counsel Appellant's record extract

contains no part of any of the above tral transcripts. None of the parties’

tnal exhibits are in the record Moreover, appellant's brief fails to direct

Our attention to any specific page or pages of the above transcripts in

support of any specific assertions or arguments set forth in his brief

It does not appear from our perusal of the record that the parties

agreed to order a transcription of less than all of the tral testimony (Md

Rule 8-411 (a) (1) (B)) or that this Court ordered less than a complete

transcription (Md Rule 8-460 (a) (1) (C)) Therefore, the record

transmitted in this appeal violates Md Rules 8-411 (a) (1) (A) and 8-413

(a). Appellant's record extract violates Md Rule 8-504 (a) (3) and (4).

among other requirements. We note these shortcomings, not to emphasize

that appellant, as a layperson, has been unable to cope with the technical

requirements of proper and effective appellate procedure, but to lay the

partial foundation for why these shortcomings substantively prevent us

from giving meaningful consideration to his grievances

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Appendix (

added as a plainuff for a loss of consortium claim via an

amended complaint) sued appellees in the circuit court for

personal injury and property” damages due to appellees’

negligence

In his brief in this Court, Mr. Aloupis states “[a]s a

result of this impact, [he] sustained the following injuries

head, shoulder, upper back and neck, an inner ear tear. loss of

(sexual ability) the intimate relationship with his wife, the

relationship with his entire family, permanent brain function

damage with short term memory loss.” Although he alludes in

his brief to “six physician’s depositions” as “support” for

“evidence related in his case,” we have no indication which.

if any, deposition testimony was received in evidence at trial

Mr. Aloupis, in his brief, informs us of the specialty fields of

Dr. Karim (neurosurgeon), Dr. Keller (psychiatrist), and Dr

Fitzgerald (ear, nose, and throat), that each was “Board

Certified,” that Dr. Karim opined that Mr Aloupis suffered

permanent brain damage from the accident, and that Dr

Fitzgerald, “on cross-examination,” testified “Mr Aloupis

sustained a tear of the left inner ear complicated by fluid

leakage,” requiring surgery apparently in the future

Appellant did not characterize what Dr. Keller’s medical

opinion may have been at trial. Although Mr. and Mrs

4

We have no ability on this record to discern what happened to the

property damage claim. We shall ignore it therefor

In his record extract, Mr Aloupis includes transcripts of

depositions of Drs. Karim, Keller, and Fitzgerald, but not the 174 pages, or

any portion, of their trial testimony. He does not in his brief or reply brief

cite to any page or pages in either the depositions in his extract or the trial

transcript in the record. We shall not remedy this deficiency by our own

further toil

DE ok, Se Ee

l2a

Appendix

Aloupis apparently testified, as well as a Dr. Zafiropoulos and

Peter Aloupis, for the plaintiffs. we have no transcnpt

whatsoever of what these witnesses said.

The defense produced two witnesses, Mr. Roop and

Dr. Buckholtz. As judgment for liability was rendered against

appellees (and is not contested here), the absence of Mr.

Roop’s testimony in this record is of no moment. From the

portions of Dr. Buckholtz’s trial testimony, contained in an

appendix to their bnef and to which appellees’ brief refers us

to selected pages, it appears that, after reviewing appellant’s

pre-accident medical records, the hospital records from the

accident, appellant's physicians’ records and opinions, and his

own examination of appellant and vicarious knowledge of

appellant's post-accident physical activities, Dr. Buckholtz

essentially opined that Mr. Aloupis had not suffered serious

injuries from the accident as alleged, e.g. no inner ear or brain

injury.

Following the jury verdict, appellant’s trial counsel

filed a motion for new trial, which alleged two grounds, in

pertinent part, as follows:

The Court should grant a new trial for

the following reasons:

a. The Plaintiffs were prejudiced

by the jurors’ consideration during its [sic]

deliberations matters not in evidence during the

trial of this case. Specifically, counsel have

learned that jurors observed Plaintiff from the

window of the jury room after their lunch break

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Appendix (

while he stood outside in the rain holding an

umbrella. Apparently, these observations were

discussed and became a focal point of the

jury's deliberations and verdict in this case.

b The award of the jury was

inadequate in light of the proven damages at

trial... Even though Defendant admitted that

some injury occurred and in fact that treatment

at the emergency room and certain subsequent

medical treatment was reasonable. necessary

and causally related to the accident. the jury

gave no award for past medical expenses

Moreover, the award for pain and suffering was

inadequate and can only be explained in the

light of their observation of the Plaintiff outside

_ of the Courthouse as previously described.

The court, by order dated 16 September 1997 and docketed on

18 September 1997, denied the motion without elaboration

Mr. Aloupis, in proper person, filed with the court on 8

October 1997 a motion for reconsideration ° In this motion,

appellant essentially argued that the Jury verdict was contrary

to the evidence. He also asserted that the unacceptable verdict

was due to some unexplained jury response to his “ethnic

background,” which background goes unexplained as well.

6

On 10 October 1997, Mr Aloupis filed a letter, dated 8 October

1997, directed to the trial judge further complaining about the jury verdict

l4a

Appendix C

The court denied this motion by order of 31 October 1997,

docketed 3 November 1997.

Prologue

We are mindful of the renewed public concern over

impediments to meaningful access to the judicial system for

the redress of all manner of legal grievances. Not the least of

these impediments is the evolved complexity of the

legislation, rules, and common law governing how such

grievances are brought, prosecuted, and resolved. This

complexity, for the most part a necessary state justified

quixotically by logic and clarity, sometimes even confounds

attorneys. The inherent tensions within the system designed to

serve the pursuit of justice in the abstract and the actual

attainment of a just result in a given case are often made most

apparent when a layperson, such as appellant here, endeavors

to represent himself or herself, for whatever reasons, in a

matter. Appellant's earnest recognition in his brief of his

personal limitations in appreciating how to present his case

will be mirrored in this opimion by our equally earnest

assessment that, though we considered how we could review

the substantive ments of his apparent issues notwithstanding

the numerous shortcomings of his efforts to present his case to

us, we are unable to reach the conclusions he desires us to

reach.

~

Prior to the court’s order denying the motion for reconsideration,

appellant filed this appeal on 14 October 1997 and, at the same time, filed

with the circuit court a “petition for a new tnal.” As the court's

jurisdiction for present purposes was circumscribed by the filing of the

appeal, it took no action on the petition for new tnal (nor was action was

called for under the circumstances)

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Appendix (

We will ordinarily not interfere with a jury verdict.

even one that is inconsistent. Eagle-Picher Indus. Inc. \

Balbos, 84 Md. App. 10, 35-36 (1990), aff'd in part and rev'd

in part, 326 Md. 179 (1992). In reaching this conclusion, this

Court in Balbos said

Inconsistent jury verdicts generally are

not sufficient grounds for an appellate court to

reverse a jury's verdict. As the Court of

Appeals stated [,]. ‘That the verdict may

have been the result of compromise, or of a

mistake on the part of the jury, is possible. But

verdicts cannot be upset by speculation or

inquiry into such matters.”

* * « *.

In so holding, we realize that this precedent has

previously been applied by Maryland courts

only in criminal cases. We believe, however.

that the rationale for his principal [sic] is

equally valid when applied in civil actions

Here too, we are reluctant ‘to interfere with the

results of unknown jury interplay’ at least

without proof of ‘actual irregularity. We

recognize that inconsistency may be the

product of lenity, mistake, or a compromise to

reach unanimity. The continual correction of

such matters would undermine the historic role

of the jury as the arbiter of questions put to it.

16a

Appendix (

Id. at 35-36 (citations omitted).

We, unlike the jury in the instant case, have not been

presented with the trial testimony, for example, of appellant or

appellant's wife. It seems reasonable to assume that some part

of their testimony bears on appellant’s alleged injuries and

damages. The jury was presented with the contradictory

testimony of appellant’s medical expert witnesses versus

appellees’ medical expert witness. Although appellees, on

appeal, have directed our attention to selected portions of Dr.

Buckholtz’s testimony, appellant has not done likewise with

regard to the 176 page transcript of the testimony of the three

physicians he refers to in his brief and reply brief.

We shall not engage in a fishing expedition to do for

appellant that which he should have done for himself. It is not

our task to delve through the record to unearth factual support

favorable to appellant and then seek out law to sustain

appellant’s position. Evans v. Shore Communications, Inc.,

112 Md. App. 284, 309 (1996); von Lusch v. State, 31 Md.

App. 271, 282 (1976), rev'd on other grounds, 279 Md. 255

(1977). He has not persuaded us that this case presents the

“truly rare circumstances where a jury’s verdict is

irreconcilably defective.” He has not demonstrated that the

jury's verdict in this case was not the product of its

determination to find incredible or unpersuasive his witnesses

(lay and medical alike) in large part and, instead, to accept

appellees’ medical witness’s opinions, substantiated as they

were.

Though it will be of small consolation to appellant

here, he has been treated no differently in substance than his

17a

Appendix

spiritual predecessor was by us in Tretick v. Layman, 95 Md.

App. 62 (1993).

IT.

The decision to grant a new trial is left to the sound

discretion of the trial court, and the court’s exercise of that

discretion will generally not be disturbed on appeal. Buck v.

Cam's Broadloom Rugs, Inc., 328 Md. 51, 57 (1992) (holding

that denial of a new trial motion would not be disturbed in the

absence of “extraordinary” or “compelling” circumstances)’

Mack v. State, 300 Md. 583, 600 (1984). As the Court of

Appeals explained in Buck, 328 Md. at 58-59. the scope of the

trial court’s discretion is not fixed and immutable. Instead. the

courts discretion will expand or contract depending upon the

nature of the factors being considered. Where the motion for a

new trial was grounded solely on an assertion that the jury’s

verdict was against the weight of the evidence the court’s

discretion is broad, and denial of a motion for new trial will

rarely be disturbed on appeal. Id. at 59-61.

In the instant case, by not including such arguments in

his initial brief, appellant has abandoned on appeal his

assertions made in the trial court that a new trial was

warranted because the jury verdict was the product of some

improper response to this “ethnic background” or due to the

jury’s observations during deliberations of him in the parking

18a

Appendix (

lot in the rain holding an umbrella.” Jacober v. High Hill

Realty, Inc., 22 Md. App. 115 (1974). Although appellant

attempted in his reply brief to pay lip service to the aforegoing

arguments and resurrect them, it was too little and too late

See Federal Land Bank of Baltimore, Inc. v. Esham, 43 Md

App. 446 (1979) Thus, appellant is left only with the

argument that Judge Chappelle abused his discretion in

denying the motion for new trial because the verdict was

against the weight of the evidence

As noted early by us, generally discretion is not fixed

or uniform. Rather, “it will expand or contract depending

upon the nature of factors being considered.” Buck, 328 Md

at 57. In Thodos v. Bland, 75 Md. App. 700 (1988), we

explained

[W]hen the consequences of a particular exercise

of discretion are clear, i.e. one result is clearly

unjust and the other, clearly not, the limits of the

exercise are narrow. On the other hand, when

the consequences are not so clear, 1.e., no result

is Clearly just or unjust, the limits of the exercise

of discretion are considerably broader. Indeed,

in the latter situation, we will not find an abuse

of discretion whichever way the trial court may

choose to exercise discretion. Pertinent to each

of these situations, is the additional

consideration, whether, be it just or unjust, the

“On the record transmitted to us, we have not the remotest idea

what relevancy or materiality these assertions could have had on the

question of whether a new tnal should have been appropnate We image

Judge Chappelle was as puzzled as we are

19a

Appendix (

result is lawful. If the result is unjust, but also

lawful, the mere fact that it was achieved by the

trial judge’s exercise of discretion will not

render that exercise an abuse of discretion

Id. At 712 (citations omitted)

In considering whether a trial judge abused his or her

discretion in acting on a motion for new trial, we are mindful

also that the judge had the ability and responsibility to assess

the credibility of witnesses in that evaluative process, an

asset denied to an appellate tribunal

For the very same reasons explained else where in

this opinion, we are unable to say that the trial judge’s

decision to deny the motion for a new trial fell outside the

range of his permitted discretion

JUDGEMENT AFFIRMED

APPELLANT TO PAY

THE COSTS

20a

APPENDIX D — DECISION OF THE CIRCUIT COURT

OF CHARLES COUNTY, MARYLAND

DECIDED SEPTEMBER 18, 1997

IN THE CIRCUIT COURT OF

CHARLES COUNTY, MARYLAND

Case No.: CV-94-1750

CHRIS ALOUPIS, et ux

Plainuffs,

.

JOHN JOSEPH ROOP. et al

Defendants

ORDER

After reviewing plaintiff's Motion for New Tnal and

defendant's response thereto, it 1s this 16" day of September

1997

ORDERED that plaintiffs Motion for New Trial ts

denied

FILED SEPTEMBER 18, 1997

/S/ Steven J. Chappelle

Judge, Circuit Court for

Charles County

2la

APPENDIX E — BASIS FOR THE DECISION OF THE

MARYLAND CIRCUIT COURT OF

CHARLES COUNTY

(GIVEN IN APPENDIX D)

When the judgment rendered by the jury in the

petitioner's case, the presiding judge, the honorable S. J

Chappelle, reminded the jury that there were fifty thousand

dollars in medical bills outstanding, however, the jury refused

to change its verdict

In response to the jury’s verdict, the plaintiffs counsel

immediately filed “PLAINTIFFS’ MOTION FOR A NEW

TRIAL”. The defense counsel then filed “DEFENDANTS’

RESPONSE TO PLAINTIFFS’ MOTION FOR NEW

TRIAL”. Both of these motions are presented in this appendix

along with appropriate remarks by the petitioner

Apparently, the honorable Judge Chappelle was greatly

persuaded by the Defendants’ motion so that he rendered the

opinion which is given in APPENDIX D and which was very

favorable to the defense and very unfair and unjust to the

plaintuff.

Up to this point, the plaintiff's counsel was working on

a contingency fee basis so that when Judge Chappelle denied

the plaintiffs motion for a new trial, the plaintiff's counsel

requested appropriate fees in order to appeal the case to the

higher court.

The plaintiff, however, unable to pay a fee of many

thousands of dollars plus hundreds of dollars per hour, had no

choice but to appeal the case Pro se.

22a

Appendix I

In addition to the filing of the PLAINTIFFS”

MOTION FOR A NEW TRIAL by the plaintiff's attorney, the

plaintiff, having to go Pro se, filed a “MOTION FOR

RECONSIDERATION” to the Honorable Judge S. Chappelle

This motion ts also included 1n the instant appendix

In this “Motion” the plaintiff tells the Honorable Judge

that “the verdict which the jury rendered on July 24, 1997 was

biased, prejudiced, discriminated, and unconstitutional, and

without foundation or merit because of the plaintiff's ethnic

background.” This statement, of course, is only a belief on the

part of the plaintiff and has no basis in fact; however, the

plaintiff feels it is the only way he could explain this bizarre

verdict. As to the constitutionality issue, the plaintiff contends

that since the Constitution of the United States 1s the most just

set of laws we have, anything which ts unjust must be

unconstitutional (or must break these laws which are based on

just principles)

In this discussion, the following items are included

1. PLAINTIFF°S MOTION FOR A NEW TRIAL

A. Petitioner's Comments Regarding Plaintiff's

Motion for a New Trial

2. DEFENDANT’S RESPONSE TO PLAINTIFF'S

MOTION FOR NEW TRIAL

A. Petitioner's Comments regarding Defendant's

Response to Plaintiff's Motion for New Trial

MOTION FOR RECONSIDERATION (by the

plaintiff)

A. Petitioner's Comments Regarding Plaintiffs

Motion for Reconsideration

tad

Appendix I.

1. PLAINTIFFS’ MOTION FOR NEW TRIAL

IN THE CIRCUIT COURT FOR

CHARLES COUNTRY, MARYLAND

CHRIS ALOUPIS and Case No. 94-1750

MARY ALOUPIS

Plaintiffs

Filed August 1, 1997

\

JOHN JOSEPH ROOP. ET AL

Defendant

PLAINTIFFS’ MOTION FOR A NEW TRIAL

COMES NOW, the Plaintiffs, Chris and Mary

Aloupis, by and through their respective counsel and pursuant

to Maryland Rule 2-533 respectfully move for a new trial in

the above captioned matter, in support thereof, states as

follows

|. The above referenced matter went to trial before

the Honorable Steven Chappelle in this Honorable Court on

July 21, 1997 through July 24, 1997. On July 24, 1997, after

the Court had directed a verdict in favor of the Plaintiff on the

issue of liability, the jury handed down a verdict in the amount

of $2,000.00 for pain and suffering only. No award of

damages was granted for past medical expenses, past lost

wages, future medical expenses or loss of consortium

24a

Appendix I.

2. The Court should grant a new trial for the

following reasons

a. The Plaintiffs were prejudiced by the jurors’

consideration during its deliberations matters not in evidence

during the trial of this case. Specifically, counsel have learned

that jurors observed Plaintiff from the window of the jury

room after their lunch break while he stood outside in the rain

holding an umbrella. Apparently, these observations were

discussed and became a focal point of the jury’s deliberations

and verdict in this case. According to Maryland case law, the

consideration of such evidence by the jury is sufficient

grounds for a Motion for New Trial. See, Buck v. Cam's

Broadloom Rugs, Inc., 328 Md. 51, 58, 612A.2d 1294 (1992)

See also Smith v. Pearre, 96 Md. App. 376, 391, 625 A.2d

349 (1993)

b. The award of the jury was inadequate in light

of the proven damages at tnal. As stated in Greenstein vy.

Meister, 279 Md. 275, 368 A.2d 451 (1977), such an award

can be sufficient grounds for a Motion for New Trial. Even

though Defendant admitted that some injury occurred and in

fact that treatment at the emergency room and certain

subsequent medical treatment was reasonable, necessary and

causally related to the accident, the jury gave no award for

past medical expenses. Moreover, the award for pain and

suffering was inadequate and can only be explained in the

light of their observation of the Plaintiff outside of the

Courthouse as previously described.

25a

Appendix |

3. It 1s respectfully submitted that the interests of

justice require that the Court grant Plaintiff a new tnal

WHEREFORE, Plaintiff respectfully requests the

following relief

1. That this Honorable Court grant them a new trial

2. That this Honorable Court hold a hearing on

Plaintiffs’ Motion for New Tnal

3. That at the hearing, the Court issue summons for

the attendance of the jurors who can at that point be

questioned concerning the allegations of this Motion

4. That this Honorable Court permit Plaintiff to

supplement this Motion with a legal memorandum concerning

the issues raised

5. Such further and additional relief as justice may

require under the circumstances

S/ Richard A. Finci

S/ Kurt W. Wolfgang

S/ Donna G. Burch

Clerk

26a

Appendix |

A. Petitioner’s Comments Regarding Plaintiff's Motion

for New Trial

The Petitioner in this case makes the following comments

and admissions

| The Plaintiff has no idea where plaintiff's counsel

obtains the information alleged in the Motion for New Tnal

2. The Plaintiff did not enter the courtroom in a

wheelchair, wearing a neck brace or anything of this sort,

however, 1s this the only criteria on which damages are

awarded”

3. Since the Pernod of time between the accident and

the tral was approximately five years, the plaintiff has

learned to compensate for his disability; however, this should

not be mistaken for a lack of disability

4. The Plaintiff! may have failed in articulating his

problems, however, objective evidence and expert testimony

speak louder and are much more reliable than words or

observations

5. The Plaintiff could have been observed at any

time during the five years preceding the trial; for he had

nothing to hide and most certainly did not behave any

differently in any parking lot, or wherever, although it may

have appeared to an observer that he did

6. The Plaintiff's counsel, in trying to understand

the reason behind this bizarre verdict which awarded the

Plaintiff no compensatory damages, was forced to look for

an explanation outside of the courtroom, for he certainly

could not explain it in any other way

27a

Appendix |

2. DEFENDANT’S RESPONSE TO PLAINTIFFS’

MOTION FOR NEW TRIAL

CHRIS ALOUPIS, et ux., ° IN THE

Plaintiff . CIRCUIT COURT

v. . OF

JOHN JOSEPH ROOP, et al. * CHARLES COUNTY,

Defendants . Case NO.: CV 941750

a * * * a * * * *

DEFENDANTS’ RESPONSE

TO PLAINTIFFS’ MOTION FOR NEW TRIAL

THE DEFENDANTS, John Joseph Roop and Cargill,

Inc., through their attorneys, Scott D. Goetsch and Semmes.

Bowen & Semmes, pursuant to Maryland Rule 2-311(b),

respectfully respond to Plaintiffs’ Motion for New Trial and

State as follows

INTRODUCTION

The plaintiffs filed this case on or about September 20

1994. The case proceeded to trial before the Honorable

Stephen Chappelle on July 21, 1997, and carried through July

24, 1997. Judge Chappelle entered a verdict in favor of the

Plaintiff's on the issue of liability. The jury then awarded the

plaintiff $2,000.00 of non-economic loss

28a

Appendix |

On August |, 1997 the plaintiffs filed their Motion for

New Trial, alleging that they were prejudiced because

members of the jury looked out the window and observed the

plaintiff moving and gesturing in a manner inconsistent with

this trial testimony. This is alleged to have been improper

Furthermore, the Plaintiffs claim that the award of the jury

was inadequate in light of the proven damages at tnal, and was

rendered solely due to the jury's observation of the Plaintiff

from the window of the jury room

RESPONSE

The plaintiff's contention that the jurors acted

improperly by looking out the window of the jury deliberation

room, and observing the plaintiff moving and gesturing in a

manner inconsistent with his trial testimony, 1s without merits

Initially, it 1s a long-standing rule of Maryland law that jurors

will not be heard, by affidavit or otherwise, to impeach their

own verdict Consequently, the evidence proffered by

plainuff's counsel, but not yet produced, cannot be considered

In support of their motion. Further, the jurors did not in any

way act improperly by looking out the window. Finally, the

jury's ultimate finding and award was supported by the

evidence, and cannot be grounds for a new trial

' While Plaintiffs Motion for New Trial was apparently filed on

this date, it was not received by defense counsel until August 26, 1997

Further, Plaintiffs counsel indicated that affidavits from jurors were being

prepared No affidavits have been received by counsel for the defense

29a

Appendix |

PROFFERED JUROR AFFIDAVITS AND JUROR

TESTIMONY

Plaintiffs have proffered that they will produce

affidavits from jurors supporting their contention that

members of the jury based their verdict upon observations of

the plaintiff that were made when they looked out the

window during their deliberations. Plaintiffs have also

requested this Court to issue subpoenas to various jurors in

order to solicit testimony on this same issue, the Maryland

courts have long held that a juror will not be heard to

impeach his or her verdict. Oxtoby v. McGowan. 294 Md

83, 101, 447 A.2d 860, 870 (1982), Williams v. State, 204

Md. 55, 67, 102, A.2d 714, 720 (1954): Browne v_ Browne.

22 Md. 103, 113 (1864), Aron v_ Brock, 1997 Md. App

LEXIS 91 (Filed May 29, 1997), Smith v. Pearre, 96 Md

App. 376, 387-88, 625 A.2d 349, 355 (1993), cert. Denied.

322 Md. 454 (1993): Wernsing v. General Motor Corp., 298

Md. 406, 411, 470 A.2d 802, 804 (1984): Braun v. Ford

Motor Co., 32 Md. App. 545, 551, 363 A.2d 562. 566

(1976), Dixon v. State, 27 Md. App. 443, 448, 340 A.2d 396.

400 (1975), cert. denied, 276 Md. 741 (1975)

The Court of Appeals in Williams v. State, supra

stated that

[1\}Jn Maryland there has been no deviation

from the rule that what takes place in the jury-

room ought to be, and it generally is, known

only to the jurors themselves and that their

testimony cannot in general be heard to

impeach their verdict, whether the conduct

objected to be misbehavior or mistake

Williams, 204 Md. At 70, 102 A.2d at 721

30a

Appendix I

Furthermore, this rule extends to juror affidavits as

well. In Wernsing v. General Motors Corp., supra, defendant

sought a new trial because of juror misconduct by means of a

dictionary being used during deliberation. The defendant

sought to introduce several affidavits from jurors supporting

the misconduct claim. The court found that the post-verdict

affidavits were a “particularly gross example of soliciting

reconstruction of a jurors mental processes in reach the

verdict.” Wernsing, 298 Md. At 412, 470 A.2d at 805. The

court ultimately held that this type of tampering with “verdict

finality” is not permitted under Maryland law. Id

Even if the plaintiffs’ proffered evidence were to be

considered, the alleged actions of the jurors were not

improper. The jurors merely looked out the window, and

observed the plaintiff in much the same way they did during

the entire tnal. The jurors did not conduct their own

investigation, did not go to the plaintiff's home, and otherwise

did not seek out additional information on which to base their

verdict They simply looked out the window

INADEQUACY OF THE AWARD

In Maryland, the question of whether a verdict 1s either

excessive or inadequate 1s fine for the trial court, exercising its

sound discretion. Kirkpatrick v. Zimmerman, 257 Md. 215,

217, 262 A.2d 531, 532 (1970); Kujawa v. Baltimore Transit

Co..224 Md. 195, 209, 167 A.2d 96, 102 (1961). In Kujawa,

the claim for damages by the Plaintiffs arose out of a collision

between a bus and a car operated by the Plaintiffs. There was

no dispute as to the liability of the Defendants, but the jury

assessed a verdict of $3,315. The trial court denied Plaintiffs’

request for a new trial

i

'

'

i

'

j

ee

oe eee aes ee -

Appendix |:

Like the Kujawa case, the case before this court

presents a similar situation. The Plaintiffs have failed to

present a sufficient basis for granting their claim as to the

inadequacy of damages. The jury heard testimony, observed

the Plaintiff on the stand, and reached a verdict. As found in

Zimmerman, supra, the jury might have been prompted to give

an award in the amount it did for several reasons. In the

instant case, there certainly was ample evidence introduced

that Plaintiff's condition was not at all as he claimed, and that

he did not suffer any injury at all

It is not, however, the duty of the trial court to probe

into the minds of the jurors and invade the veil of secrecy that

protects the jury process and deliberations. See Williams.

supra. Notwithstanding the juror affidavits that counsel claims

he will obtain, there is no basis for a new trial

CONCLUSION

WHEREFORE, for the foregoing reasons, the

Defendants, John Joseph Roop and Cargill, Inc respectfully

request that Plaintiff's Motion for New Trial be denied

/s/ Scott D. Goetsch

Attorney for Defendants

John Joseph Roop and

Cargill, Inc

32a

Appendix EF

A Petitioner’s Comments Regarding Defendant's

Response To Plaintiff's Motion for New Trial

The Plaintiff makes the following comments regarding

defendant s response:

1. Defense counsel’s prejudicial remarks which he

had made throughout this entire tnal are evident in this

response when he tells us that the jury “observed the plaintiff

moving and gesturing in a manner inconsistent with his tria!

testimony” (App. 28a) when he very well knows that the

Plaintiff's counsel made no similar statement in

“PLAINTIFF°S MOTION FOR NEW TRIAL”. The defense

counsel makes this statement not once but twice (App. 28a).

2. The defense counsel tells us that he has not

received any affidavits from plaintiff's counsel, however, the

plaintiff's counsel merely requested the Court to issue

summons to the jurors since the court denied this request, no

summons were sent to the jurors or to the defense counsel.

3. Clearly, the defense counsel rebuts the plaintiffs

first reason for the granting of a new trail on the basis that a

Jury cannot impeach its own verdict. The second reason given

by the plaintiff's counsel which is the inadequacy of the

award, however, is an entirely different matter.

4. In the matter of the inadequacy of the award, the

defense counsel offers two cases (App. 30a) whose validity is

questionable when applied to personal injury cases and whose

scope is relatively narrow and pales in companison to the case

law which ts both well established and controlling. ,

33a

Appendix I

All opinions related to damages in tort actions teach us

that the primary function of a jury is to fix the amount of

damages at their discretion, however, the jury is not given

carte blanche and cannot ignore undisputed evidence such as

medical bills and arbitrarily deny any recovery. In other

words, there are limits in any given situation beyond which

juries Cannot go

Thompson v. Cooper, 551 So 2d 1030 (Ala. 1989)

States:

“The jury was not free to assess damages in an

amount less than those special damages proven

by way of medical expenses and loss of

earings, that proximately resulted from the

culpable conduct of the defendant, the jury was

duty bound to award substantial compensation,

including damages for proven’ medical

expenses and loss of earning and earning

capacity, as well as for physical pain, mental

suffering and permanent injury"

Brannon v. Webster, 562 So. 2d 1337 (Ala. Civ. App

1990) is another case which is controlling over the defendant's

case and tells us that:

“A jury verdict will be overturned on appeal

where the damages awarded is not sufficient to

cover the proven expenses."

+

34a

Appendix |:

A more definitive case. DeMfoss v. Brown Cah Co.

Inc., 218 lowa 77, 254 N.W. 17 (1934) which 1s controlling

over the defendant's case 1s:

“Failure to award damages for medical bills,

where required, represents a reversible error.”

Here we note that a reversible error is by definition an

error substantially affecting plaintiffs legal rights and

obligations which if uncorrected would result in a miscarnage

of justice and which justifies reversing a judgement in the

lower court even if the error was not objected to in the lower

court; synonymous with prejudicial error.”

In this particular case, the error was not corrected and

it resulted in a miscarriage of justice. In addition, the added

“obligation” placed on the plaintiff to appeal his case was a

burden both financially and mentally, which he was not able to

overcome?)

Now, as mentioned in Plaintiff's Motion for New Trial

(App. 24a) medical treatment received by the plaintiff was

reasonable, necessary, and causally related to the accident and

was never objected to by the defense, and since the physicians

testified as to its validity, we have to conclude that the Courts

erred in not reversing the jury’s judgement.

According to the definition offered above, the error in

not reversing the jury’s judgment is not only prejudicial, but

also “affects the plaintiff's legal nghts”. When the petitioner

discusses the judgment handed down by the Court of Special

wt ces i

35a

Appendix |.

Appeals of Maryland, he will also show how this judgment

violates his rights under the laws of the U.S. Constitution

Under INADEQUACY OF THE AWARD, the defense

counsel gives us the Kujawu case as precedent which is

supposed to be against the PLAINTIFF’S MOTION FOR

NEW TRIAL, and which is somewhat limited in scope since

in awarding damages, a comparison of two different cases is

improper. Kaiser v. Stathas, 263 NW. 2d 522 (lowa 1978)

States:

“In a case involving the granting or denial of a

motion for a new trial where it is alleged the

verdict was too large or too small precedents

are of little value. Each case must be decided

by relating its own unique circumstances to

certain well established principals.”

In closing, the defense counsel makes his most

ludicrous statement yet, and that is that the plaintiff was not

hurt or did not suffer any injury at all.

This statement, of course, is based on the testimony of

his one and only expert witness, who by his own admission is

a neurologist who specializes in Medical/Legal matters but

who is not a neurosurgeon, he is not an ear, nose and throat

specialist (otolaryngologist) and is not either a trained

psychiatrist or a trained orthopedic surgeon, but who is very

persuasive and who is quick to label someone with the

standard label of a malingerer and a scammer.

On the other hand, the plaintiff has numerous lay

witnesses, who have known him for many years, he has expert

7 <=

36a

Appendix I.

opinions from a neurosurgeon, who has articles published in

neurosurgery journals, and who is not only familiar with all

MRI and CAT scan techniques, but who has also performed

many operations verifying the various instrumental findings

and who has testified under oath that the Plaintiff has suffered

brain damage.

In addition, the plaintiff has also the opinion of an

expert in psychiatry, an expert in otolaryngology who has

published twelve articles including four articles on a condition

known to specialists as perilymphatic fistula) This condition

is caused by a sudden pressure change on the inner ear or a

trauma to the head. This specialist has testified that the

plaintiff has this condition, which is known generally as a

rupture of the inner ear.

The plaintiff also has an expert in orthopedic surgery

who has testified in a sworm deposition, and which was

mentioned in Court, that the Plaintiff had suffered a rotator

cuff tear similar to that suffered by many athletes under

physical contact and which was never controverted by anyone,

including the defense witness.

Now in view of all this evidence, the defense counsel

tells us that the plaintiff suffered no injury at all although his

own witness concedes that although there was no brain

damage, there was soft tissue damage as well as some

stretching of the nerves which could cause pain for several

months.

Now let us for a moment assume that the defense

witness 1S correct and everyone else, with the exception of the

orthopedic surgeon is wrong. Now how is the plaintiff to

Appendix |

know the extent of his injuries unless he fulfills his duty and

obligation which by law is to obtain medical care and follow

his physician’s advice

Note: “It 1s uniformly held to be the duty of one who

has suffered a personal injury as a result of the negligence of

another to exercise due care to mitigate damages by having

his injury treated by a physician or surgeon,”

Also: “Duty to Follow Advice of Physician.”

“An injured party not only has the obligation to

obtain the services of a competent physician

but he is also under a duty to exercise ordinary

care to follow the advice of a physician in

regard to treatment and care of the injury”

see § 4.02 [2] supra

Also: University of Ariz. Health Science

Center v. Superior Court of State in and for

Maricopa County, 667 P. 2d 1294 (Ariz. 1983).

Now, under these circumstances, how can a plaintiff,

regardless of the severity of his injuries, receive no

compensation for medical bills? _

The defendant’s argument then is without merit and

should have been rejected.

Taking everything discussed here into account. is it

any wonder that the plaintiff feels and expresses same in this

MOTION FOR RECONSIDERATION to the Circuit Court of

38a

Appendix |:

Charles County, Maryland claiming that the jury verdict was

biased, prejudicial, discriminatory, and unconstitutional and

thus raising a Federal question. Not unlike the plainuffs

counsel, the plaintiff was also at a loss to explain the bizarre

verdict, which caught everyone in the courtroom, including

the Judge, by surprise.

The defense counsel is quite nght in saying that it is

not the duty of the trial court to probe into the minds of the

jurors, however, as it turns out it is not necessary for the Court

to do so since all well establish opinion is that the jury award

itself is evidence enough to show that the award was

motivated by bias, passion or prejudice.

In his MOTION. FOR RECONSIDERATION, the splaintiff

tells the Judge that the judgment was “unconstitutional”, etc.

The above argument however, shows that, although the

plaintiff may be right, we are not able to probe the minds of

the jurors and it is for this very reason that there is no

requirement to do so. Bress/er v. Dannon Yogurt, 573 A.2d

562 (Pa. Super. Ct. 1990) tells us:

“The amount of the verdict in a personal injury

action, which Is an issue for the jury, will rarely

be set aside as inadequate on appeal. However,

inadequacy of the verdict will be found and a

new tnal ordered where the verdict is so

inadequate as to indicate passion, prejudice,

partiality or corruption, or in some instances,

where there was a vital misapprehension or

mistake on the part of the jury, or when it

clearly appears from uncontradicted evidence

. that the amount of the verdict bears no

ee SE et

39a

Appendix I:

reasonable relation to the loss suffered by the

Plaintiff, or, according to some of the cases.

where, otherwise, there has been an evident

failure of justice to the Plaintiff or where the

award is so inadequate that it should not be

permitted to stand.”

Also, Austria v. Donovan, 169 So.2d 377 (Fla. Dist

Ct. App 1977) tells us:

“A new tria! was ordered, when the jury verdict

was apparently less than the medical bills and :

the automobile damage and there was evidence

of pain and suffering and loss of earnings.”

Here, we clearly have a Constitutional question which

only the Supreme Court of the United States can answer and

that 1s, “Are state laws which are applied to personal injury

cases and which allow a judge or jury to ignore evidence such

as medical bills proper?” The defense counsel argues that it is

all up to the court’s discretion. This implies, of course, that

the courts can award any ridiculous amount and still be within

the bounds of their authority. This, however, is in conflict

with an overwhelming body of opinion, which says in essence

that the jury’s award has to at least pay justifiable medical

bills. Such limitless laws so heavily relied upon by the Courts

of Maryland have now become a Federal question. Later, the

petitioner will show how such laws applied to his situation

violate his right of due process of law given to him by the U.

S. Constitution. To summarize, the defense counsel’s

arguments then we can say that the judge and jury, at their

discretion, can decide what medical expenses are necessary

40a

Appendix |

and appropriate regardless of medical opinion. Apparently, tn

the case of the plaintiff. the jury and judge decided that the

plaintiff's claim to medical expenses was not credible, even

though all medical experts testified to the contrary; which

makes no sense at all

The Supreme Court then has to decide whether citizens

of the United States who are involved in accidents and decide

to get medical treatment are doing it at their own risk, since a

jury can later deny claims to such necessary treatment on the

basis that they do not feel that these treatments were

necessary.

Note: The following ts the jury award which was

affirmed by the Honorable Judge S. Chappelle of the

Maryland Circuit Court for Charles County.

Jury Award

Jury assesses damages in favor of Plaintiff,

Chris Aloupis as follows: Post [sic] medical

expenses: 0. Future medical expenses: 0. Past

loss of earnings: 0. Non economic damages:

$2,000.00. Jury assess [sic] damages in favor

of plaintiff Chris Aloupis and Mary Aloupis for

loss of consortium: 0. 2

Court enters judgment in favor of Plaintiff,

Chris [sic] Aloupis, and against the Defendant

John Joseph Roop and Cargill, Inc. in the

amount of $2,000.00. Verdict sheet, filed.

Medical bills: approximately $50,000.00

alpen 5 Alena tes ‘ashen

4la

Appendix I.

3. MOTION FOR RECONSIDERATION

[By the Plaintiff]

HON. JUDGE STEPHEN CHAPPELLE

CIRCUIT COURT OF CHARLES COUNTY

MARYLAND

Re: Chris Aloupis v. John Joseph Roop, et al. and Cargill,

Inc.

In the Circuit Court for Charles County, Maryland Case

No. CV 94-1750

MOTION FOR RECONSIDERATION

Dear Sir:

A motion on the above captioned matter was filed with this

Court, requesting a new trial by plaintiff s attorney, Richard

Finci. In response to this request, Motion dated September 16,

1997 was denied by the Court. No grounds for this action

taken were specified by the Court that warrant such denial.

In the above case, the plaintiff states that the verdict, which

the jury rendered on July 24, 1997 was biased, prejudiced,

discriminated, and unconstitutional, and without foundation or

merit, because of the plaintiff's ethnic background. The

Courts instructions to the Jury before retiring for deliberation

were totally ignored, as well as the evidence and oral

testimony of the Plaintiff's witnesses and Doctors. Medical

=

42a

Appendix I.

evidence and tests in this case clearly supported the allegations

that were presented during the trial by the prosecution. The

plaintiff states in this case that he has suffered substantial

damages since this accident occurred. The plaintiff has

experienced pain and suffering for more than six years, and

according to his physicians, he will have to endure these

problems for the rest of his life. This cannot be ignored by the

law. Someone has to be held accountable for their actions and

for this tragedy that has disrupted his life and took away his

ability to function as a normal human being. The records

documented in Court clearly defines that the plaintiff was

never charged with any contributory negligence on his part.

and he should not be penalized and made to suffer the rest of

his life, mentally, physically, and financially without being

compensated for his losses due to someone’s irresponsibility

and negligence. On (Introduction) Defense Council stated that

Judge Chappelle entered a verdict in favor of the Plaintiff on

the issue of liability. The Jury then awarded the Plaintiff

$2,000 of non-economic loss

To set the record straight, the Plaintiff rebuts the defense

Council's statement of non-economic loss. The $2,000

awarded by the Jury was for future medica! expenses and not

for non-economic loss.

Council in the Motion for New Tnal also stated thay the Court

of Appeals in Williams v. State Supra, stated that

“In Maryland there has been no deviation from

the rule that what takes place in the Jury-room

ought and it generally is known only to the

43a

Appendix |.

Jurors themselves and that their verdict whether

the Conduct objected to be misbehavior or

mistake.”

Williams, 204 Md At 70, 102 A.2d At 721

Council also stated that the Maryland Courts have long held

that a Juror will not be heard to impeach his or her verdict

294 MD, 83, 101, 447 A.2d 860, 870 (1982) Plaintiff does

not dispute Defense Council findings, but states as follows: In

the Food Lion case where the jury awarded $5.5M, the Judge,

at his discretion, found the judgement too excessive and

reduced it to $315K. In acase where a Jury renders an unjust

verdict, it is at the Court’s discretion, if it feels there is a

discrepancy involved, to set aside the verdict and award a new

trial

CONCLUSION OF THIS MOTION

Wherefore, the Plaintiff respectfully prays that the Honorable

Court exercise its powers in good faith and judgement by

awarding him a new tnal, a change of venue, and an attempt

by Defense Counsel to strike this motion be denied

Sincerely with respect

s Chris Aloupis

Chris Aloupis, Esq, Pro Se

2415 Shade Oak Court

Waldorf, Maryland 20601

44a

Appendix I.

A. Petitioner’s Comments Regarding Plaintiff's Motion

for Reconsideration

We can easily see by the plaintiff's remarks contained

in this Motion that he has raised a Federal question with the

Honorable Judge of the Court of first instant. Although the

plaintiff, not being an attorney, fails to produce cases, etc., to

support his allegations, it is fairly obvious that he considers

the verdict handed down by the Court of first instant, or the

Circuit Court of Charles County of Maryland to be highly

unjust

In this MOTION, the plaintiff also is telling the

Honorable Judge, by giving him a simple example, that if the

judges, using their discretion, can alter unreasonably high jury

awards then the same principle should also apply to jury

awards which are extremely inadequate.

—

4Sa

APPENDIX F — BASIS FOR THE DECISION OF THE

COURT OF SPECIAL APPEALS OF MARYLAND

[Given in Appendix C]

2 ele Ay One

1. PLAINTIFF’S NOTICE OF APPEAL TO THE

COURT OF SPECIAL APPEALS OF MARYLAND

IN THE CIRCUIT COURT OF CHARLES COUNTY

MARYLAND

CASE NO. CV 94-1750

Chris Aloupis

Plaintiff

V.

John Joseph Roop, Et Al

Defendant

NOTICE OF APPEAL

Please note that the Plaintiff appeals the verdict in

regard to the above captioned matter to the Court of Special

Appeals of Maryland.

/s/ CHRIS ALOUPIS

46a

Appendix I

2. PLAINTIFF’S PETITION FOR NEW TRIAL

IN THE COURT OF SPECIAL APPEALS OF

MARYLAND

Case No. CV94-1750

Chris Aloupis

Plaintiff

V.

John Joseph Roop and Cargill, Inc.

Defendants

PETITION FOR NEW TRIAL

Comes now the Plaintiff, Chris Aloupis, Pro Se, sues

defendants John Joseph Roop, and Cargill, Inc. is petitioning

the Honorable Court and states as follows:

1. Plaintiff, Chris Aloupis, is a resident of Charles

County, Maryland and a citizen of the State of Maryland.

2. Defendant, John Joseph Roop, is a resident of

Frederick County, Maryland, a citizen of the State of

Maryland. Defendant Roop was operating a tractor-trailer

owned by Defendant Cargill, Inc. on the date, time and place

of this accident.

3. Defendant, Cargill, Inc. is incorporated under the

laws of the State of Maryland with a principle place of

business in Walkersville, Maryland, in Frederick county, in

edited Oat cacy iran a: DSIRE ae ian saa 0) soe im 9 ORIN tls TE Gt eal EI te a ‘

47a

Appendix ]-

the State of Maryland. Cargill, Inc. owned the tractor-trailer

which struck plaintiff.

COUNT I- NEGLIGENCE

4. Plaintiff incorporates the allegations of Paragraphs

1-3 and further states as follows: On the day of the accident in

question, which occurred on April 8, 1992, approximately

between 1:00 and 1:30 PM. While driving his small Toyota

pick-up truck, the plaintiff was involved in a rear-end collision

with the defendant’s 18-wheeler tractor-trailer that was

traveling between 40-50 miles per hour.

5. Asa result of this collision, the plaintiff sustained

permanent injunes, including and limited in scope to brain

injury, neck and shoulder, upper back damage, dizzy spells,

blackouts, short-term memory loss, including the intimate

(sexual) relationship with this wife, and the close relationship

with the entire family. al

6. That after two postponements by the defense

attorney, the trail in the Case No. (CV94-1750) Aloupis v.

Roop was set forth for trial in the Circuit Court of Charles

County, Maryland, before the Honorable Judge Steven

Chappelle, presiding.

7. Where after the case had entered its sixth year, the

trial was schedule for litigation by the Court from July 21 to

July 25, 1997.

48a

Appendix I

8. The prosecution in the case presented oral and

documented testimony provided by three Board Certified

physicians, a neurological surgeon, a psychiatrist, and an

otolaryngology (ENT) physicians. Also, a report on the

findings from a deposition provided by an orthopedic surgeon.

Including and not limited to tests performed in order to

support the allegations in this matter.

9. Where after three davs of the trial, the Judge

instructed the Jury before retiring for a verdict to deliberate

the out-come of this case. After approximately three hours of

deliberation, the Jury’s verdict was as follows: the plaintiff

was awarded NO compensation on medical or doctor bills

(which have accumulated to more than $50,000). NO wage

loss, past present or future, No physical damages, NO

compensation for loss of martial relationship (Loss of

Consortium suit). The only award was $2,000.00 for future

medical expenses/treatment. The plaintiff in this case was

never charged with any contributory negligence.

10. Council for plaintiff filed a MOTION FOR NEW

TRIAL pursuant to Maryland Rule 2-533. That Motion was

denied by the Court.

11. That in the above captioned Petition, the plaintiff

states that the jury did not abide by the Judge’s instructions

and the verdict they rendered on July 24, 1997 was (biased,

prejudiced, discriminating, and unconstitutional) and without

foundations or merits because of the plaintiff's ethnic

background.

49a

Appendix F

12. Wherefore, the Plaintiff in the above petition prays

the Honorable Court of Special Appeals review this appeal in

good faith and judgement, and to reinstate his rights for a new

trial and a change of venue and to deny any attempt by

defendants John Joseph Roop and Cargill, Inc. to strike this

petition.

Sincerely with respect

/s/ Chris Aloupis, Pro Se

50a

Appendix I

3. Petitioner’s Comments Regarding Appellee’s Brief

Submitted to the Court of Special Appeals of Maryland

|Not Submitted Here]

In his brief to the Court, the appellee is in essence

telling the Court that the appellant is not a very good lawyer

and that he made all these mistakes and that his mistakes

should be used against him and the Court ts considering

nothing else. He is absolutely correct, of course, as far as the

appellants skill as a lawyer.

Now in his brief, the counsel for the appellee tells us

the following:

1. Because of the obvious mistakes the appellant has

made, the Court should decline his appeal.

2. The judge of the Circuit Court “PROPERLY

DENIED” appellant's MOTION FOR NEW TRIAL.

3. The jury is always right and their judgment is

always correct.

4. Appellant's MOTION FOR NEW TRIAL was

denied.

5. Appellant asked for reconsideration and denied

again.

6. The court “properly” denied appellant’s MOTION

FOR NEW TRIAL since there was “ample evidence” to

support the jury’s verdict — in other words, the jury’s verdict

was correct and proper in all respects.

Sla

Appendix F

7. The appellee introduced evidence at the trial

showing that the appellant had not suffered injury.

8. Appellant’s claims are not credible.

9. Presents evidence, Dr. Buckholtz’s opinions.

10. Claims ample evidence at trial that plaintiff was

not injured.

11. Circuit Court Judge PROPERLY denied

appellant’s MOTION FOR NEW TRIAL.

12. Produces references which shows that a new trial

can be granted for ‘extraordinary’ and ‘compelling’ reasons

only but that this was neither ‘extraordinary’ or ‘compelling’.

13. Appellee tells us that since the appellant did not

include any evidence from the trial, he cannot be considered

for relief. Reminds us fourteen times.

14. Jury verdict, which is inconsistent, is of no matter.

15. The jury was right, because there was much

evidence based on Dr. Buckholtz’s testimony.

16. Jury verdict was correct.

17. The court cannot second-guess the jury, must abide

by the jury’s decision. |

18. Jury’s verdict was proper and not inconsistent with

the evidence.

52a

Appendix |:

19 Appellate Court cannot second-guess the jury

To summarize appellee's argument, then, we can say

that the appellant was a very bad lawyer tn that he did not

represent himself well, and did not present the evidence which

supports his allegations. It does not, however, mean that the

evidence does not exist, but that he failed to produce it. The

second part of the appellee’s argument is that the Judge and

jury were night and proper in all respects and that their

judgment was supported by the evidence.

The appellee produces a reference which tells us that:

“The exercise of discretion by the trial Court

when ruling on a Motion for New Trial

“generally will not be disturbed, except for

“extraordinary and “compelling” reasons.”

The appellee then implies that this ts not

“extraordinary” or “compelling” so that the tnal court

“properly exercised” their discretion.

The appellant, of course, who was hit by the tractor-

trailer disagrees with this and tells us that in his view it was

not proper. The appellant here then is telling us that the

judgment handed down in this particular case represents an

“extraordinary” and “compelling” reason for altering the

verdict and in this respect is absolutely correct. Nothing in the

laws of the United States tells us that the judgment of Judges

and juries are immutable so that the argument presented by the

defense counsel is not exactly correct: for then there would be

no appellate review.

S3a

Appendix |

The appellant will now prove, beyond all doubt. that

the evidence itself which the defense counsel refers to in

support of his position proves beyond all doubt that the jury

verdict was erroneous and that the appellant’s contentions

were absolutely correct.

The defense counsel points to his “evidence” which is

supposed to show that the appellant was not hurt at all

Let us then examine this evidence on which the entire

case for the defense rests. The evidence, so heavily relied

upon by the defense, is the testimony of Dr. Buckholtz

Absent this testimony, the defense has absolutely nothing.

Now, according to Dr. Buckholtz, Dr. Karim, whose opinion

that the appellant has suffered brain damage, as a result of the

accident, is wrong and what the appellant actually sustained is

Only soft tissue damage. Also, according to Dr. Buckholtz.

Dr. Fitzgerald was also wrong in his diagnosis that the

appellant had suffered a rupture of the inner ear or a

perilymphatic fistula. Now, Dr. Buckholtz also tells us that

the testimony of Dr. Keller, who diagnosed the appellant as

being in a mental state which has moved from anxiety to

depression, is also wrong and that the depression symptoms

are part of the scam since it’s very difficult to maintain a

scam.

Now what does Dr. Buckholtz tells us about the report

which has been confirmed by Dr. Ghovanlou, who tells us that

the appellant has suffered a rotator cuff tear? Here Dr

Buckholtz tells us that he cannot give an opinion on this

matter since he never claimed to be an orthopedic surgeon.

(App. 107a)

54a

Appendix I

Now, if one man’s opinion can overrule the opinion of

three specialists, namely: Dr. Karim, Neurosurgeon, Board

Certified, Chief of Neurosurgery at Prince George's Hospital

Center with hospital privileges to practice at George

Washington University Hospital, Washington Hospital Center,

Laurel Regional Hospital, Doctor's Community Hospital and

Washington Adventists Hospital.

Dr. Carl Keller, psychiatrist, University of Chicago, in

practice since 1964, past Director of United States Public

Health Service, Department of Psychiatry and 1n addition is

also a doctor.

Dr. Dennis Fitzgerald, a specialist in otolaryngology

(ear, nose, and throat specialist), Board Certified, has written

twelve papers in his field including four papers on a condition

known to specialists as perilymphatic fistula or a rupture of

the inner ear. Dr. Fitzgerald is a top surgeon in his field and

has performed approximately 600 surgeries on this very

condition which ts caused by either a sudden difference in air

pressure such as experienced in a plan dive or a hard blow to

the head. By the way, the appellant has never been in an

airplane.

Now, all three of these specialists are wrong according

to Dr. Buckholtz, also Board Certified, but who is a

neurologist and who by his own admission is not a

neurosurgeon, is not a psychiatrist, is not an ear, nose, and

throat specialist, and by his own admission ts not an

orthopedic surgeon and who does not controvert the findings

of Dr. Ghovanlou as to a rotator cuff tear. This assertion then

made by the appellee’s counsel that the plaintiff was not

damaged in any way is erroneous.

Appendix I

Now, as pointed out earlier, even if Dr. Buckholtz, for

the appellee, is correct and everyone else, with the exception

of Dr. Ghovanlou, is wrong, his testimony still leaves the

Appellant with cervical strain and a rotator cuff tear. Now can

the argument put forth by the appellee’s counsel, that the

appellant was not hurt at all be taken seriously? Also, how

can the Courts justify the fact that the appellant was awarded

no compensatory damages? This verdict would indicate that if

a person was injured due to someone else negligence they

would have to think twice before getting medical treatment for

their injuries.

4. PETITIONER’S COMMENTS REGARDING

DECISION OF THE COURT OF SPECIAL

APPEALS OF MARYLAND

In this judgment, the Honorable Judge Harrell, J. gives

a very fair assessment of the shortcomings of the Appellant’s

efforts to persuade the Court that the verdict handed down by

the Maryland Circuit Court was unfair, prejudicial, and

unconstitutional in the same way that the appellant also stated

the very same thing to the Maryland Circuit Court when he

appealed his case to that same Court shortly after the verdict

was read.

Here, the Honorable Judge mirrors the appellee’s brief in that

he is also reminding the appellant that he has failed to point to

specific lines in the deposition testimony submitted with his

brief. In addition, the appellant is reminded that he broke the

rules relating to providing the complete trial transcript of

approximately one thousand pages, and that the appellant’s

brief violates numerous Maryland Rules. The court, of course,

recognizes the fact that the appellant is only “a lay person”

56a

Appendix I

and that he ts “unable to cope” with the technical requirements

of proper and effective appellate procedure.

Under “Prologue” the Honorable Judge tells us that

“We are mindful of the renewed public concern over

impediments to meaningful access to the judicial system for

the redress of all manner of legal grievances.” Also, the Judge

tells us that “This complexity, for the most part a necessary

State justified quixotically by logic and clanty, sometimes

even confounds attorneys,” etc ... etc.

Now, certainly, the appellant having only a seventh

grade education is no match for an attorney or a great Judge,

and since the Judge admits that the complexity of the

legislation is so great as to even confound attorneys, then what

chance does a lay person have to defend his rights under such

circumstances? Absolutely none.

Essentially, then the Courts are telling the appellant

that his chance of persuading the Courts that his grievances

have merit are slim to none.

Since the appellant has never appealed a case before in

his whole life, he might as well not have filed an appeal at all

and let his rights dissipate.

To all this, the appellant states the following:

The appellant tells us that judges throughout the

United States tell people who claim that they did not know

something that they “should have known it.” Now, why

cannot a citizen of the United States tel! a court that the court

57a

Appendix I°

“should have known something” as well? In the case of the

appellant, it is true he failed to point out every piece of

testimony to the court. However, was the information so

lacking that the court was unable to at least suspect that

something was wrong?

The Court had at their disposal the verdict of the Jury

which gave the appellant no compensatory damages. The

Courts also knew, from the appellee's brief and the appellant’ s

brief, that there were doctors and doctor bills involved. Now

would not this fact alone cause a little bit of doubt as to the

fairness of the award? Most certainly.

Here, the Courts tell the appellant that he has been

treated no differently than his predecessor in 7retrick vy.

Layman, 95 Md. App. 62 (1993). Apparently then anyone,

who makes technical mistakes in his appeal will also get

turned down, never mind the merit of each case. Of course,

this is only fair since the Courts are Supposed to treat people

the same way under the same circumstances and that makes it

all fair and just.

There is, however, one problem with all this and that is

that the appellant would not have been in that situation if it

was not for the fact that his rights were violated by the lower

Court, placing him in that situation. The appellant then

appealed his case in order to reverse a verdict which by every

opinion known is a product of bias. passion or prejudice.

Now, if the judicial system of the State of Maryland is

willing to accept as valid any fallacious argument such as that

Presented by the appellee’s counsel, then the appellant’s legal

rights have been violated and as a citizen and because of the

58a

Appendix I

injustice which has been thrust upon him, he now invokes his

rights of due process and equal protection of laws given to him

under the Fourteenth Amendment of the Constitution of the

United States.

The appellant will now show that his rights under the

Fourteenth Amendment of the U.S. Constitution have been

violated.

As shown earlier under “Petitioner's Comments

Regarding Defendants Response to Plaintiff's Motion for New

Trial”, Appendix E and using citations of 7hompson vy.

(voper, Brannon v. Webster, and especially DeMoss v. Brown

(ab Co., Inc. which makes it abundantly clear that by

definition, the failure to reverse this error of judgment results

in a miscarriage of justice, which is exactly what happened in

this particular case, and as a result justifying the appellant's

contentions that his Constitutional nghts have been violates.

The only thing remaining then is to show how the Fourteenth

Amendment applies to this particular situation. Now,

according to the Amendment which states “nor shall any state

deprive any person of life, liberty or property without due

process of law; not deny to any person within its jurisdiction

the equal protection of the laws.”

In the case of due process of law, we note the opinion

of Herbert v. Louisiana, 1926 272 U.S. 312, 71L Ed 270, 47S

Ct. 103,48 ALR 1102 as follows:

“Fourteenth Amendment to Constitution of the

United States requires that state action shall be

consistent with fundamental principles of

,

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G

9

ft

ba

59a

Appendix |

liberty and justice which lie at basis of all our

civil and political institutions.”

Also, the opinion of Ross v. Moffitt, (1974) 417 US

600, 41 L Ed 2d 341, 94 § Ct. 2437 as follows:

“Under Fourteenth Amendment “due process”

emphasizes fairness between state and

individual dealing with state, regardless of how

other individuals in same situation may be

treated,”

Bolling v. Sharpe, (1954) 347 U.S. 497. 98 L Ed 884,

74 S Ct. 693, 53, Ohio Ops 331, Supp. op 349 U.S. 294, 99

253, 71 Ohio L Abs 584 opinion is as follows:

“Concepts of “equal protection of Laws” and

“due process of Law”, although not always

interchangeable, are not mutually exclusive,

discrimination may be so unjustifiable as to be

violative of due process.”

We can easily see by these opinions that there is a

relation between “equal protection” and “due process”

Now under equal protection, the opinion of Southern

RK. Co. v. Greene, (1910) 216 U.S. 400, 54 L Ed 536, 30S Ct

287 is as follows:

“Equal protection of laws means subjection to

equal laws applying alike to all in same

situations.”

|

|

60a

Appendix I

Also, Afaxwell v. Bughee, (1919) 250 U.S. 525, 63L Ed

1124.40 S Ct 2 opinion is as follows:

“Equal protection of laws requires equal

operation of laws upon all persons in like

circumstances.”

Now, what were the plaintiffs circumstances in the

Circuit Court of Maryland? For one thing, he was in Court to

recover for injuries obtained in an accident due to the

negligence of the defendant. In order to determine the extent

of these injunes, and by following the doctor’s advice, he

incurred medical bills. Now, all legal opinions tell us that

such a person regardless of who he is should at least get

compensated for these medical bills and if not it 1s a reversible

error on the part of the Court as pointed out by the reference of

DeMoss v. Brown Cab Co. Inc., given in Appendix E, pg. 34a

Is the judicial system of Maryland trying to tell the

plaintiff in this case that everyone seeking recovery for

medical bills which were determined to be proper, necessary

and causally related by physicians and were never objected to

by the defense or the Court gets the same treatment as the

plainuff?

One may now ask how did this denial of justice

happen? The answer is that the Maryland courts, using their

discretion, have decided to reinterpret the Buck decision and to

redefine what 1s meant by “extraordinary” or “compelling”

reason. Now, apparently, according to their definition,

awarding zero compensatory damages in this situation is not

an “extraordinary” or “compelling” reason to reverse this

unconscionable verdict. The only problem with this, however,

6la

Appendix ]-

is that this violently clashes with the decision of Herbert v.

Louisiana, offered here which tells us that state action must be

consistent with the fundamental principles of justice.

The appellant then has Clearly shown that his

Constitutional rights of due process and equal protection of

laws have been violated — Judge Harrell, J. opinion not

withstanding.

In closing, the petitioner would like to Say that by a

clever manipulation of opinions, whose application in this

particular case results in an injustice has now become a

Federal Question. The Honorable Judge tells us that the high

courts of Maryland, referring to the Court of Appeals, said:

“that the verdict may have been the result of compromise, or

of a mistake on the part of the jury, is possible. But verdicts

cannot be upset by speculation or inquiry into such matters.”

This opinion of course is in conflict with opinions of other

high courts through out the United States, since this opinion

tells us that a jury even has the right to take away citizen's

rights given to them even by the Constitution of the United

States.

While the petitioner realizes that such opinions may

have some application in criminal Cases, they are and should

not be applicable to civil cases such as the instant Case since

here the plaintiff comes to court to exercise a legal right, or to

obtain compensation for wrong that have been dome on him,

and not for civil or. criminal wrongs he has done to someone

else.

Now, since the opinion of the highest court of

Maryland which the Honorable Judge Harrell, J. has stated

62a

Appendix I

above tells us that jury “verdicts cannot be upset” and since

such a ruling violates the appellants federal nghts of due

process and equal protection of laws as well as his legal and

civil rights he has no choice but to seek protection from the

Federal courts. The appellant contends that this action by the

Maryland courts also represents a state wrongful prosecution

action and is grounds for removal.

63a

APPENDIX G — BASIS FOR THE DECISION OF THE

‘NITED STATES DISTRICT COURT FOR THE

DISTRICT OF MARYLAND

[Given in Appendix B]

1. PLAINTIFF’S FEDERAL JURISDICTION

INTERVENTION DEMAND

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICFT OF MARYLAND

August 3, 1998

Mary and Chris Aloupis, Pro se

6058 Red Squirrel Place Civil No. MIG 99-2597

Waldorf, Maryland 20603

Plaintiffs

Vs

John Joseph Roop :

400 Chapel Court. Apt. 318

Walkersville, Maryland 21793

And

Cargill, Inc.

36 Pennsylvania Avenue

Walkersville, Maryland 21202

Defendants

Petition

Federal Jurisdiction Intervention Demand

The Plaintiffs in the above captioned matter, Mary and Chris

Aloupis, Pro se jointly petition the United States District

64a

Appendix G

Court, claiming Federal jurisdiction over this case on grounds

and in support therefore states as follows. This 1s an

automobile accident related matter, which occurred on April 8,

1992?

The Plaintiff in this matter was rear-ended by the Defendant's

| 8-wheeler tractor-trailer that was traveling at a high speed

approximately between 45-50 miles per hour. As a result of

this accident, the Plaintiff sustained physical damage and

permanent injuries. The case went to litigation on July 21-24,

1997, before the Circuit Court of Charles County, Maryland.

After four days of trial and three hours of deliberation, the jury

awarded the Plaintiff $2,000 for future medical expenses. In

light of the proven damages, this inadequate verdict was

appealed by Counsel for the Plaintiff requesting a motion for a

new trial. The motion was denied, and also a motion for

reconsideration was to no avail. Under the 30 day Maryland

Statute, Plaintiff petitioned the Court of Special Appeals of

Maryland. On December 17, 1997, the Court ordered the case

to proceed without a prehearing conference. On March 24,

1998, Counsel for the Defendant advised the Defendant that

oral arguments in this appeal would be scheduled between the

1“ and 16" of June, and all parties would be notified of the

date.

On April 21, 1998, Counsel for the Defendant was notified by

the Court stating that the case had been placed on the

Summary Calendar of the Court to be submitted on Brief and

had been taken out of the assignment for oral arguments. No

explanation of this decision was given by the Courts action to

the Plaintiff.

65a

Appendix G

Finally, on June 23, 1998 the Court notified the Plaintiff that

his appeal was denied and that the Court had allowed the

Lower Court judgement affirmed

The Plaintiff clearly stated before this court that the Jury's

inadequate verdict rendered in the Lower court was

discriminatory in light of the proven damages at the trial

because of the Plaintiff's ethnic background. Such verdict

should never have been rendered When the petition for a new

trial and change of venue was granted for the case to proceed

without a prehearing conference by the Court of Special

Appeals, and later denied the appeal for a new trial when the

Court rendered the final opinion. The Plaintiff's claim that the

Court ruled on point of law rather than points of documented

facts, and proven damages in this matter.

The Court, by refusing to hear the Plaintiff's oral arguments in

order to air allegations, disputes, and grievances conceming

this matter, has violated his civil rights, including the

suppression of evidence. This action deprived the Plaintiff of

due process clause that are guaranteed under the provisions

and protection set forth the First and Fourteenth Amendments

of the United States Constitution The protection of every

citizen in the nation is guaranteed regardless of religion, ethnic

background, color or creed. In our judicial system, if we

allow the flaw of law to prevail, then the interest of justice

Cannot be served.

66a

Appendix G

COMPLAINT

Comes now the Plaintiffs, Mary and Chris Aloupis, Pro se and

sues Defendants John Joseph Roop and Cargill, Inc., and in

support therefore states as follows:

1. Plainuff, Chris Aloupis is a resident of Charles

County, Maryland, and a citizen of the State of

Maryland

2. Defendant, John Joseph Roop ts a resident of

Frederick County, Maryland, and a citizen of the State

of Maryland. Defendant Roop was operating a tractor-

trailer owned by Defendant Cargill, Inc. on the date,

_ time and place of this accident.

3. Defendant Cargill, Inc. is incorporated under the

laws of the State of Maryland with a principle place of

business in Walkersville, Maryland 1n Frederick

County in the State of Maryland. Cargill, Inc owned

the tractor-trailer, which struck Plaintiff.

COUNT | —~- NEGLIGENCE

Plaintiff incorporates the allegations of Paragraphs 1-3 and

further states as follows:

4. On Apmil 8, 1992, at approximately 1:30 PM,

Plaintiff was operating his 1992 Toyota pick-up truck

northbound on Mattawoman-Beantown Road in

Charles County, Maryland near its intersection with

Council Oak Drive.

67a

Appendix G

5. At that same time and place, defendant Roop was

Operating an International Tractor, pulling a Warren

box trailer in the same general direction on the same

road

6. Plaintiff turned on his left turn signal and beyan to

reduce speed and stopped in order to make a left turn

on Council Oak Drive when Defendant failed to reduce

his speed to avoid a collision with Plaintiff, and rear-

ended his vehicle at a high rate of speed

7. No negligence of Plaintiff contributed to this

accident

8. Asa result of this accident, Plaintiff suffered

severe personal injury requiring extensive medical

treatment, endured substantial pain and suffering,

extreme mental anguish, emotion disorders. as well as

economic loss due to medical expenses. Plaintiff, to

this day, continued to suffer with permanent injures as

a result of this accident

Wherefore, Plaintiff demands damages of one million dollars

($1,000,000.00)

COUNT II - VICARIOUS LIABILITY

Plaintiff incorporates the allegations of Paragraphs 1-8 and

further states as follows:

9. At the time and place of the accident, Defendant

Roop was employed by Defendant C argill, Inc.

———————

68a

Appendix (;

10. At the time and place of the accident, Defendant

Roop was acting within the scope of his employment

as a driver for Cargill, Inc. Wherefore, Plainutt

demands damages 16 ihe amount of one million dollars

($1,000,000.00) under the theory of Respondent

Superior

FIRST AMENDED COMPLAINT

COUNT Il — LOSS OF CONSORTIUM

Plaintiff incorporates the allegations of Paragraphs 1-10 and

further states as follows:

11. Plainuff, Mary Aloupis, was at the time of the

accident, and still is the lawful wife of Plaintiff, Chris

Aloupts

12. The negligent conduct of the Defendant Roop,

more specifically described above, caused injury to the

marital relationship of the Plaintiffs, including a loss of

society, affection, assistance, companionship, and loss

of sexual relations. Wherefore, the Plaintiffs demand

damages 1n the amount of three hundred and fifty

thousand dollars ($350,000.00). Wherefore, Plaintiffs

demand damages of one million three hundred fifty

thousand dollars ($1,350,000.00) under the theory of

Respondent Superior

69a

Appendix G

TRIAL COURT DEMAND

Comes now the Plaintiffs. Mary and Chris Aloupis,

respectfully requests that the above Captioned matter be tried

by the Trial Court on all counts and to be decided by Court

and resolved

CONCLUSION

The Plaintiffs pray the Honorable Court review this matter on

the grounds of credibility, evidence. and merits presented and

award the appropriate relief to resolve this case

Respectfully submitted

s’ Chris Aloupis

Chris Aloupis, Pro se

And

Ss Mary Aloupis

Mary Aloupis

6059 Red Squirrel Place

Waldorf, Maryland 20603

(301) 843-803}

70a

Appendix G

2. U.S. DISTRICT COURT’S SHOW CAUSE ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

MARY ALOUPIS. et ux *

Plaintiff °

VS * CIVIL ACTION NO. MJG-98-2597

JOHN JOSEPH ROOP *

and CARGILL, INC

Defendants

. . * * 7 * + o

SHOW CAUSE ORDER

It appears from the face of the Complaint that the

Court may not be able to obtain jurisdiction in this case

The Plaintiffs seem to be asserting that they were

improperly treated by the Court of Special Appeals of

Maryland. However, they are not suing that court | the instant

case. Moreover, there does not appear to be any basis for a

Sult against that court since the Plaintiffs here would have had

the ability to petition the Maryland Court of Appeals for any

relief to which they may have been entitled.

In this case, the Plaintiffs are suing the names

Defendants for injures sustained in a vehicular accident, i.e.

presenting state law claims. The only discernable potential

basis for federal jurisdiction would be diversity of citizenship.

7la

Appendix G

There are three reasons why, from the face of the Complaint, it

appears that this case cannot proceed.

First, it appears that the claim made in this case has

already been adjudicated in the state judiciary. Second, it

appears that the accident occurred in 1992 so that limitations

would have expired for the bringing of this case. Finally,

there does not appear to be any basis for federal jurisdiction

since the Plaintiffs and one of the Defendants are stated to be

citizens of Maryland. For this Court to have diversity

jurisdiction, there must be a total diversity 28 U.S.C. § 1332

Here, with Maryland citizens on both sides of the case, there is

a lack of total diversity which is fatal to diversity jurisdiction

Owen Equipment & Erection Co \ Kroger, 437 U.S. 365

(1978)

Under the circumstances, to avoid unnecessary

paperwork and delay

|. Plaintiffs shall, by August 26, 1998, show cause

why this case should not be dismissed due to the

lack of jurisdiction, the prior adjudication of this

Case in state court, and the expiration of the

limitations to the file the suit

tv

Said showing of cause shall be made by filing a

Statement of the specific facts and specific legal

authority upon which Plaintiffs rely to assert that

ederal jurisdiction exists and that this case may be

pursued.

ty

If Plaintiffs do not show Cause In compliance with

this Order, this case shall be dismissed.

72a

Appendix G

4+. Service of process shall be withheld pending

further Order

SO ORDERED THIS 6'"' day of August 1998.

s’ Marvin J Garbis

Marvin J. Garbis

United States District Judge

73a

Appendix G

3. PLAINTIFF'S REPLY TO SHOW CAUSE ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

August 24, 1998

Mary and Chris Aloupis, Pro se

6058 Red Squirrel Place

Waldorf, Maryland 20603

Plaintiffs

Civil Action No MJG-98-2597

Vs.

John Joseph Roop

400 Chapel Court. Apt. 318

Walkersville, Maryland 21793

And

Cargill, Inc

36 Pennsylvania Avenue

Walkersville, Maryland 21202

Defendants

REPLY TO SHOW CAUSE ORDER

Comes now the Plaintiffs Ma

jointly entering a Reply

the honorable Marv

In reference conce

ry and Chris Aloupis Pro se

to Show Cause Order as requested by

in J. Garbis, United States District Judge.

ming this matter and in compliance with the

74a

Appendix G

Courts demand, claiming Federal jurisdiction and intervention

in the above captioned matter, and therefore, states as follows:

The demand for Federal intervention and jurisdiction rounds

over this matter derived from grievance, disputes, allegations,

and violations of law as outlined in this Petition, Complaint,

and first amend Complaint, and all of the particulars submitted

for the Courts review.

The Plaintiff in this Show Cause Order, therefore, states as

follows:

We as citizens of this State and Nation, when we have

grievance to air or to dispute, we exercise our nghts before a

court of law to decide the issues before them in an impartial

manner, and we expect the law to punish the guilty party and

exonerate the innocent party. This did not occur in this matter.

This case stems from the inadequate Jury verdict from the

lower court through the final decision and opinion from the

Court of Special Appeals refusing to grant the Plaintiffs a new

trial and change of venue. The Plaintiffs did not receive a fair

trial and the Court's negative position in this matter in light of

the proven damages and $50,000.00 of medical bills including

permanent injunes documented by six physicians opinions,

depositions, and oral testimony, submitted for the record for

the Court's review. These the Court cannot ignore.

In this Order, the Court states that from the face of the

complaint the Court may not be able to obtain junsdiction in

this case. It also states that the Plaintiffs seem to be asserting

that they were improperly treated by the Court of Special

Appeals of Maryland. However, they are not suing that Court

in the instant case, moreover, there does not appear to be any

75a

Appendix G

basis for a suit against that Court since the Plaintiffs here

would have had the ability to petition the Maryland Court of

Appeals for any relief to which they may be been entitled and

quote.

The Plaintiffs would like to set the record Straight for the

Court in this case:

tN

The demand for Federal jurisdiction and

intervention is due from the lower C Ourt’s position

not to award a new trial regardless, and in light of

the inconsistent verdict reached by the Jury. Also,

the Court of Special Appeals negative opinion

when they denied the Plaintiffs a new tnal and a

change of venue has created a miscarriage of

justice by refusing to allow the case to proceed

after the Court had awarded oral arguments and

later suppressed them.

When the County and State Courts refused to

Settle issues before them, as in this case and by

violating Civil and Constitutional laws including

the Rights of citizens the burden to resolve matters

and the responsibility lies with the Federal Courts.

The technicality and points of law are many. The

points of actual and documented facts are a few in

comparison, but effective. The question before

this Court is to decide if the points of law

supersede the points of facts and documented

evidence presented.

76a

Appendix G

4. The Plaintiffs are not suing the Court of Special

Appeals in this instant case, the reason being the

quarrel is not with the Court but rather with the

Defendants in this matter. The ability to petition

the Maryland Court of Appeals as stated in this

matter. The ability to petition the Maryland Court

of Appeals as stated in this order for any relief to

which the Plaintiffs may have been entitled. The

Plaintiff was informed by the lower court that any

case deriving trom the Circuit Court tnal by Jury

would be appealed to the Court of Special Appeals

and not to the Court of Appeals.

In the Show Cause Order, the Court states and clearly outlines

and defines the three reasons why from the face of the

complaint it appears the case cannot proceed.

The case has already been adjudicated in the State Judiciary.

The accident occurred in 1992. The limitation would have

expired for the bring of this case and finally does not appear to

be basis Federal jurisdiction since the Plaintiffs and one of the

Defendants are stated to be citizens of Maryland for the Court

to have diversity jurisdiction.

The Plaintiffs responded to the accident in question and state

the following. The accident occurred April 8, 1992 and under

Maryland three year statute for filing. The complaint was

filed September 1994 and after two postponements, the case

was set for trial from July 21-24, 1997. Motions for new trial

and appeals to the Court of Special Appeals ended June 23,

1998 when the final opinion from the Court was rendered.

The petition and complain with the United States District

Court was filed on August 3, 1998. The matter has been under

77a

Appendix G

litigation the entire length of time and no statute was violated

in this matter by petitioning the Court

The questions concerning the diversity issue — the Court states

there does not appear to be any basis for Federal jurisdiction

since the Plaintiffs and one of the Defendants are stated to be

citizens of Maryland. For this Court to have diversity

jurisdiction, there must be total diversity 28 U.S.C. § 1332

here with Maryland citizens on both sides of the case citing a

lack of total diversity which is fatal to diversity jurisdiction

Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365

(1978).

The questions for the Court that the Plaintiffs raise in this

matter in reference to diversity jurisdiction and Marvland

citizenship on both sides of the case — is it relevant in this

case? Does it apply in this matter? Since each case has to be

judged within its own merits, the above captioned matter is

accident related. There are physical damages and permanent

to the Plaintiff caused by the Defendants negligence. The

citizenship issue, the Plaintiff feels should have no bearing in

this matter. We take life for granted until we are confronted

with a tragedy of this magnitude and then we try to understand

the question who is responsible for our lives, homes. and

families since no one is willing to take the responsibility

including the Courts.

The Plaintiffs furthermore state that the matter cannot be

closed and the defendants allowed to prevail. The Honorable

Court must try the case and resolve it

78a

Appendix G

PLAINTIFFS FINAL STATEMENT

In this complaint, Plaintiffs pray as outlined in the conclusion,

that the matter be put to rest by the Honorable Court, by

granting them the opportunity to air their disputes and

grievances before the Court. However, if the Court decides to

deny their request for trial as stated in the Order to Show

Cause, the Plaintiffs will have no recourse but to exercise their

Constitutional rights and continue with the appeal through the

entire Federal Justice System, but not limited in scope

including the United States Supreme Court, so that justice may

prevail.

The Plaintiff, Chris Aloupis, also states for the Courts record

in that matter that in 1994 he was a candidate for the States

highest office, opposing Parris N. Glendening for Governor of

Maryland.

79a

Appendix G

CONCLUSION

The Plaintiffs, in the above captioned matter, pray to this

Court that the Honorable Marvin J Garbis in good faith.

conscious, and wisdom at his discretion spare the Plaintiffs

from any further litigation and appeals and allow this matter to

proceed for trial in order to resolve the ordeal that has claimed

their lives for the past six years.

Respectfully submitted

/s/ Chris Aloupis

Chris Aloupis, Pro se

And

/S/ Mary Aloupis

Mary Aloupis

80a

Appendix G

4. PETITIONER’S COMMENTS REGARDING

JUDGMENT OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MARYLAND

In the “Petition Federal Jurisdiction Intervention

Demand” the plaintiff in this case tells us that he was injured

in an automobile accident when he was rear-ended by a

tractor-trailer and that for injuries sustained he received an

inadequate award. Further, he contends that in appealing his

case, he was not allowed to present oral arguments which were

first scheduled and later had to be submitted on Brief only.

The plaintiff also states that by refusing to hear his oral

arguments, the Court of Special Appeals of Maryland has

deprived the plaintiff of his Constitutional rights of due

process of law given to him under the First and Fourteenth

Amendments of the U.S. Constitution. Here, of course, the

plaintiff does not tell us how the First Amendment or even the

Fourteenth Amendment applies in this case although it is well

known that justice is very well imbedded in the Fourteenth

Amendment's due process clause.

It is obvious here that the plaintiff has failed to make a

good case for himself and has not justified the intervention of

the federal courts. For one thing, there are perhaps hundreds

of thousands of citizens who get inadequate awards; this,

however, does not mean that their case can go to Federal

courts.

8la

Appendix G

In plaintiffs “REPLY TO SHOW CAUSE ORDER”,

he makes the following points:

|. The plaintiff “did not receive a fair trial” in the

State courts.

2. The plaintiff had $50,000.00 in medical bills and

other “proven” damages. In the plaintiff's “Intervention

Demand”, he had mentioned that the courts had awarded him

$2,000.00 for future medical expenses.

3. The plaintiff also states that since the accident he

met all the statutes of the state courts and has been litigating

his case since it went to trial in July of 1997.

4. On the diversity issue. the plaintiff asks the court

“is it relevant in this case?” “Does it apply in this matter?”

DISCUSSION

As is well known, diversity jurisdiction was set up by

Congress to insure that citizens would not encounter prejudice

in courts of different states. Now, a citizen who has diversity

of citizen with another citizen can go to Federal courts to

litigate his case, and, in principle, should have no more or less

civil rights than a citizen who has to litigate his case in state

courts; this is so since courts more or less use a common law.

Now US. District Court Judges are certainly qualified

to judge diversity personal injury cases arising in automobile

accidents and most certainly would know the common laws

invoived. Now is this particular case, the plaintiff tells the

federal courts that in his personal injury case he had

82a

Appendix G

$50,000.00 in medical bills and received an award of

$2,000.00 for future medical treatment (however, on record it

is shown as pain and suffering, somehow there was a

misunderstanding after the verdict was announced). This

verdict then awards the plaintiff no compensatory damages

even though one of the plaintiff's injunes was diagnosed with

absolute certainty and was never controverted by experts as

well as medical bills which were deemed to be necessary and

proper by expert witnesses and were never objected to by the

defense or the court.

Now, based on the inability of the plaintiff to show

how his federal nights were violated and his inability to raise a

federal question properly, the Honorable Judge Garbis of the

U.S. District Court rendered the opinion shown in this petition

which tells us that federal courts have no jurisdiction over this

case and one of the reasons given is that the case has been

fully litigated in state courts. The Honorable Judge also points

out that there 1s no diversity of citizenship.

The plaintiff, however, is asking the U.S. District

Court for a new trial in the federal courts since his

Constitutional rights were violated by the judicial system of

Maryland.

The questions of course here is, has a federal question

been raised by the plaintiff allowing him to enter the US.

District Court and is he allowed to do so.

Under 28 U.S.C. § 1257, the petitioner offers the

following opinion as to the manner of raising federal questions

83a

Appendix G

as found in Dewey v. Des Moines, (1899) 173 US. 193, 43L

Ed 665, 19S Ct. 376:

“No particular form of words or phrases is

necessary to comply with requirement that

Federal right be specially set up or claimed.

Under 28 U.S.C. § 1331, the following opinion in Bush

v. State Industries, Inc., (1979, CA6 Tenn) 599 F2d 780:

Tkat complaint may not state claim upon which

relief can be granted is of no relevance to

question of subject matter jurisdiction under 28

U.S.C. § 1331. Bush y. State Industries Inc..

(1979, CA6 Tenn) 599 F2q 780.

. Under 28 U.S.C. § 1331 — Duty to exercise jurisdiction

the following opinion is offered:

“Where jurisdiction of court is invoked on

grounds which if true spell out existence of

federal jurisdiction, cause must be entertained

for purpose of fully determining merits either

by way of motion or, by trial.” Dry Creek

Lodge, Inc. v. United States, (1975. CA10 Wyo

515 F2d 926, 20 FR Serv 24 940.

Here the plaintiff contends that the awarding of

$2,000.00 for $50,000.00 and other uncontroverted injuries is

basically unfair and unjust and should be recognized by judges

of the U.S. District Courts as violating a citizens legal and

constitutional rights of due Process of law and also that,

numerous cases, or that a large body of Opinion, states that

84a

Appendix G

such an award represents a reversible error. It should also be

recognized by judges that citizens in general, whether under

federal, civil, or state civil laws, are normally not treated the

same way under the same circumstances as the plaintiff, so

that the plaintiff's federal rights of equal protection of laws

under the Fourteenth Amendment of the U.S. Constitution

have also been violated by the judicial branch of the Maryland

state government

In Appendix F, “Petitioner's Comments Regarding Decision

of the Court of Special Appeals of Maryland” pg. 55a the

petitioner outlines why he was forced to seek protection in the

federal courts as well as how the Fourteenth Amendment to

the U.S. Constitution applies to his case.

In response to the Honorable Judge Marvin J. Garbis’

comments, the petitioner will try to answer the three concerns

raised by the Honorable Judge.

| In the case of the time limitation to bring the

Suit to federal court, the petitioner states the following:

The accident, which is the basis for his suit,

occurred on April 8, 1992, the complaint was

filed on September 1994, which is well within

the three year statute limitations of the State of

Maryland. This period was necessary in order

to determine the extent and permanency of his

injuries and was taken upon the advice of

counsel.

From September 1994 until the trial date of

July 21-24, 1997, the defense counsel asked

85a

Appendix G

and was granted several extensions so that after

{wo postponements, the case went to trial.

Here we notice that the defense was most

certainly not anxious to go to tnal and as a

result, the plaintiff was injured in many Ways.

For one thing, the plaintiff” primary physician

passed away as well as one of the witnesses

who witnessed the accident

Now, the need underlying the enactment of

Statutes of limitations is the belief that a

defendant should not have to worry about the

possible commencement, in the future. of an

action against him. In this case, however, and

Possibly in all personal injury cases, it is of

great benefit to the defense to prolong bringing

the case to court, as it was in this instant. so

that in this particular case it was the plaintiff

who had all the hardships rather than the

defendant.

To summarize what has been said here, all the

Maryland statutes of limitations, including the

appeals to the Maryland Court of Special

Appeals, were properly met by the plaintiff-

appellant in this case Here the petitioner

would like to offer the following reference

from Mitchell v. Josephs’ Supermarkets, Inc.

D.C. Pa 1989, 712 F. Supp. 59

“A federal court cannot dismiss an

action that was timely filed in a state

court according to state rules.”

86a

Appendix G

The petitioner would also like to mention at

this time that he had no idea in advance that he

would be forced to petition the federal courts

for relief.

2. In the case of the prior adjudication of this case in

state courts, the petitioner asked the federal courts for relief

after the verdict of the Maryland Court of Special Appeals.

Now since his case was not appealed to the highest court of

Maryland, his case was not fully litigated before he applied for

removal.

The petitioner can only offer the following reference

Wujick v. Dale & Dale, Inc., C.A. 3d 1994, 43 F3d 790 and

National Union Fire Ins. Co. v. City Savs. F.S.B., C.A. 3d

1994, 28 F3d 376 with respect to this matter.

“Determining the proper timing of removal

pursuant to Section 1441a has created some

difficulties for the federal courts. At least one

court of appeals has held that there is no federal

subject matter jurisdiction, let alone removal

jurisdiction, ...Under that view, removal can

not occur until the administrative process has

been completed.”

In this particular case, the petitioner had to wait until

the judgment of the Maryland Court of Special Appeals was

handed down; a judgment which caused him undue hardship

since it forced him to take the action that he did.

87a

Appendix G

After reading the opinion of the Court of Special

Appeals of Maryland and not wanting to lose his rights, he felt

that he had no choice but to seek protection in the US. District

Court.

3. In the matter of diversity of citizenship, the

petitioner strongly believes that he is entitled to enter the

federal courts under Federal Question Jurisdiction since he

strongly believes that his civi] and Constitutional nghts were

violated by the Maryland state courts.

The petitioner also believes that, although his case only

presents state law claims, the wrongful prosecution of his case

by the state courts and by the application of state laws which

resulted in the denial of his Constitutional rights as well as his

civil rights qualifies him to enter the federal courts for

protection.

At least one federal court has held that removal is

proper when a plaintiff files a wrongful prosecution action in

Sweeney vy, Abramovitz, D.C. Conn. 1978, 449 F Supp.

(Newman J),

As a final response to the points raised by the

Honorable Judge Garbis of the U.S. District Court. the

petitioner would like to make the following statement.

The petitioner states that his particular Case, like all

Civil cases between two citizens, has two aspects. The first

aspect itself which is the original complaint is purely a state

matter as pointed out by the Honorable Judge. The second

aspect, however, has to do with the judicial system of

Maryland and it is this aspect and system the petitioner

88a

Appendix G

strongly refers to and which he has shown has denied him his

legal rights and has violated his Constitutional rights of due

process and equal protection of laws given to him by the

Fourteenth Amendment of the U.S. Constitution

Now, after reading the opinion of the Court of Special

Appeals of Maryland which expresses the views of the highest

court of Maryland (Court of Appeals) the petitioner felt that he

had no chance to obtain justice in the State of Maryland so

that in order to protect his legal nghts, and Constitutional

rights he had to seek relief in the federal courts. Here the

petitioner feels that he is the only one under his circumstances

who could make that decision. Was he wrong to do this? Did

he have the mght to try and protect his Constitutional rights?

This 1s basically what this case for removal is all about.

The federal courts tell the petitioner they have no

jurisdiction as a matter of law since the petitioner does not

have diverse citizenship. However, the very purpose of

diverse citizenship is to eliminate prejudice which citizens of

one state may encounter if their case is litigated in another

State so that prejudice is recognized as being unjust. Certainly

then if a citizen is prejudiced by his own states judicial system

then this act can certainly not be justified on the basis that it 1s

of no matter

In this petition, it has been shown that the jury in the

plaintiff's trial committed a prejudicial error and this verdict

was not overturned by the judge or the Court of Special

Appeals of Maryland based on Maryland law (according to the

Honorable Judge Harrell J.). Now if the laws of a state are

such as to deny citizens nghts given to them by the U.S.

Constitution, should those citizens be compelled to continue to

89a

Appendix G

litigate their cases in the courts of that state and under those

circumstances and under those laws?

Virginia vy. Rives, 1880 100 US 313, 25 L. Ed 667

tells us “Removal of Cases from state courts to federal courts is

acknowledged mode of protecting rights guaranteed under

Federal Constitution.”

Here the petitioner moved his Case to the federal courts

In an attempt to protect his Constitutional rights. Whether he

has done something illegal or wrong Is up to the great court to

decide.

The petitioner here readily admits that he is at his wits

end in that according to 28 USC § 1441 the right of removal

is confined to defendants only; and this problem which the

petitioner faces is reflected in the questions presented to the

Supreme Court of the United States.

The Fourteenth Amendment tells us “nor Shall any

State deprive any person” __ etc., it makes no distinction

between a plaintiff and a defendant. The petitioner as with all

citizens in the United States who are the victims of negligence,

was the plaintiff in this case so that according to 28 U.S.C §

1441 his case cannot be removed, (according to the

interpretation of this statute) which appears to contradict the

Fourteenth Amendment of the U.S. Constitution; which

extends protections from state Justice to all people.

CONCLUSTION AND LEGAL AUTHORITY

The plaintiff contends that the Courts of Maryland

olated his civil rights and his constitutional rights given

have vi

90a

Appendix G

to him by the Fourteenth Amendment of the U.S. Constitution

so that he is requesting relief from the Federal Court system

under Federal questions jurisdiction and under the statutory

Grant 28 U.S.C. § 1331 and requests that his case be tried in

the federal courts.

Aithough the plaintiff, in his response, did not make

clear that he was entering the Federal Court system under the

authority of a Federal question and merely stated that diversity

of citizenship should have no bearing on the matter. However,

as it turns out, under a Federal question jurisdiction Grant 28

U.S.C. § 1331 the question of diversity of citizenship 1s

immaterial since all citizens whose Federal rights have been

violated have the nght under this statute to enter the Federal

courts without regard to the diversity issues: Citizenship

Immaterial

Diverse citizenship was not essential to exercise of

Federal question jurisdiction as shown in Ames v. Kansus,

(1884) 111 U.S. 449, 28 L Ed 482, 4 S Ct.; Duignan v. U.S.,

1927, 47 S. Ct. 566, 567, 274 U.S. 195, 197, 71 L Ed. 996;

and Keokuk & Hamilton Bridge Co. v. Salm, 1922, 42 S. Ct.

207, 258 U.S. 122, 124, 66 L. Ed. 496

Under Grant 28 U.S.C. § 1331, the plaintiff could also

enter the Federal courts without exhausting state remedies if

his federal nghts are violated, although the question presented

in this petition to the U.S. Supreme Court is of importance

here.

91a

Appendix G

Lane v. Wilson, (1939) 307 U.S. 268. 83 L Ed 1281, 59

S Ct. 872 tells us:

“Barring only exceptional circumstances or

explicit statutory requirements, resort to

Federal court could be had without first

exhausting judicial remedies of State courts.”

Also, Laclede Gaus Light Co. v. Public Service

Commission, (1934 DC Mo) 8 F Supp. 806 tells us:

“Where state commissions ordered reductions

without due process and with alleged

confiscatory results, federal district court could

grant injunctive relief although remedies in

State court had not been exhausted ”

Under Grant U.S.C § 1331 — Effect of state law on

Jurisdiction generally where resort was had to federal court not

on grounds of diversity of citizenship, but because federal

right was claimed, limitations upon courts of state did not

control federal court sitting in the state. (Angel v. Bullington,

(1947) 330 U.S. 183,91 L Ed 832, 67 D Ct. 657)

It is also instructive here to mention that: when a

claim is alleged to arise under the Constitution or Laws of the

United States, a federal court must not dismiss the claim for

lack of jurisdiction unless it appears to a legal certainty, that

the claim is fully insubstantial and frivolous insofar as the

Constitution and laws of the United States are concerned.

(Grabinger v. Conlisk, D.C Ill., 1970, 320 F. Supp. 1213.

affirmed C.A. 7", 1972, 455 F. 2d 490)

92a

Appendix G

Jurisdiction Not Lost — “But if the plaintiff really

makes a substantial claim under and Act of Congress, there is

jurisdiction whether the claim ultimately be held good or bad”.

The Fair v. Kohler Die & Specialty Co., 1913, 33 S. Ct. 410,

228 U.S. 22, 25, 57 L. Ed. 716.

It now appears to the petitioner that in his particular

circumstances, he had a night to appeal his case to the Federal

courts, and in addition, the petitioner contends that since the

same common law should be applied in federal courts to

citizens which have diversity citizenship the federal judges

should have known that the judgment made by the Maryland

State courts, in this particular case, is so unjust as to violate the

petitioner's legal rights as well as his constitutional rights of

due process of law under the Fourteenth Amendment of the

U.S. Constitution. See the reference Herbert v. Louisiana

given by the appellant when he gives his reasons for entering

the U.S. District Court under “Petitioner's Comments

Regarding Decision of the Court of Special Appeals of

Maryland”.

Here, once again, we note that in the case sited above,

namely Grabinger v. Coulisk that reference is made to the

“plaintiff which again implies that plaintiff along with

defendants also have the nght to enter federal courts; as it

should be if the Fourteenth Amendment is to apply to all

citizens.

93a

APPENDIX H — BASIS FOR THE DECISION OF THE

UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

1. THE DECISION OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

MARYLAND. THIS DECISION IS GIVEN IN

APPENDIX B.

2. PLAINTIFF’S NOTICE OF APPEAL

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Mary and Chris Aloupis, Prose:

6058 Red Squirrel Place : Civil Action No. MJG-

Waldorf. Maryland : 98-2597

Plaintiff

: Filed September 15.

Vs. : 1998

John Joseph Roop

400 Chapel Court. Apt. 318

Walkersville. Maryland 21793

And

Cargill, Inc.

36 Pennsylvania Avenue

Walkersville, Maryland 21202

Defendants

94a -

Appendix H

NOTICE OF APPEAL

The Plaintiffs in the above captioned matter, Mary and Chris

Aloupis, Pro se, jointly petition the United States 4'" Circuit

Court of Appeals, appealing the Order dated August 27, 1998

set forth by the Honorable Marvin J. Garbis on grounds and in

reference to jurisdiction and diversity issues over this case and

in support therefore states as follows:

In their petition filed with the United States District Court,

dated August 3, 1998 for Federal Intervention demand, the

Plaintiffs clearly have stated the issues, disputes, and

allegations concerning this matter. The Plaintiffs understand

that the Courts have long resented the representation of

citizens on Pro se basis which they find very distasteful. The

Plaintiffs claim they did not write the laws but merely exercise

them as stated on this appeal.

The matter being accident related cannot be closed without a

trial, since there are physical damages and permanent injuries

documented by tests performed by various hospitals and

clinics, doctor's opinions, depositions, and oral testimony in

Court records. The opinion, memorandum, and Order of

Diversity Citizenship and Jurisdiction will not resolve this

matter, and it is irrelevant. The Plaintiffs state that the

negative position the Courts have taken, from the Circuit

Court of Charles County not to award a new trial and a

Change of Venue when motions were filed, to the Court of

Special Appeals stating points of law. By refusing to question

the facts and damages in this matter, not only has a

95a

Appendix H

miscarriage of justice been created, but the Plaintiffs feel there

iS a COnspiracy against the Parties in this matter by the Courts

in order to suppress their Constitutional nghts, and by

discouraging this matter from proceeding to trial. The

Plaintiffs have requested Congressional assistance in resolving

this problem, through the office of Democratic Congressman

Steny Hoyer of Maryland in order to enact a statute providing

Federal jurisdiction for their case

CONCLUSION

The Plaintiffs in the above captioned matter demand that the

Honorable Marvin J. Garbis order dated August 27, 1998 be

set aside and allow the case to Proceed to trial in the Lower

Court in order to be resolved and the appropriate relief be

granted to the Plaintiffs

Respectfully submitted

/s/ Chris Aloupis

Chris Aloupis, Pro se

And

/s/ Mary Aloupis

Mary Aloupis

96a

Appendix H

3. PLAINTIFF’S —- APPELLANT?’S PETITION FOR

REHEARING OF JUDGEMENT

UNITED STATESCOURT OF APPEALS

FOR THE FOURTH CIRCUIT

NO. 98-2408

CA-98-2597-MJG

Mary Aloupis : Chris Aloupis

Plaintiffs — Appellants

\

John Joseph Roop : Cargill, Incorporated

Defendants — Appellees

PETITION FOR REHEARING OF JUDGEMENT

Comes now the Plaintiffs in the above captioned

matter, Mary and Chris Aloupis, Pro se, jointly and filing this

Petition for Rehearing of Judgement with the Honorable

97a

Appendix H

United States 4" Circuit Court of Appeals in this matter and in

Support therefore state as follows:

On September 15, 1998, a Notice of Appeal was filed

with this Court appealing the order dated August 27", 1998 set

forth by the Honorable Marvin J. Garbis on grounds and in

reference to jurisdiction and diversity of citizenship in this

case. The Court requested that the Appellants submit an

informal Brief for the Court to review. The Brief was filed on

October 2, 1998. The Appellants were informed by the

Court that the Court would consider the Appeal according to

the written issues, facts and arguments Appellants presented in

the Brief. On November 18. 1998, the Appellants received a

Notice of Judgement stating that the Judgement was entered

and that the Court dispensed with oral arguments because the

facts and legal contentions are adequately presented in the

materials before the Court and arguments would not aid the

decision process, thus affirming the lower Courts judgement.

The Appellants in this case respectfully rebuttal the

Note of Judgement rendered by the Court, and will challenge

the Courts findings on the following grounds and as follows:

The Courts decision to dispense with oral arguments

citing that the facts and legal contentions were adequately

presented in the materials before the Court. but if this Court

had reviewed the facts that the Appellants had stated during

the entire appeal, such judgement would not have been

entered. All of the material related to this matter can only be

98a

Appendix H

presented before a Trial Court. No material of any kind has

been submitted to this Court or the Lower Court, other than

the petition with the United States District Court Notice of

Appeal and an informal brief for review with this Court. Such

materials as depositions from physicians, copies from the trial

transcript of oral testimony in the lower Court, or verification

of tests performed on the Appellant that support the facts in

this case have ever been submitted in the Federal Courts in

. order to make an accurate evaluation in this matter, as well as

not being requested by the Court

The Appellant, on his petition dated August 3, 1998 of

Federal Jurisdiction Intervention with the United States

District Court, has stated clearly that the Jury’s verdict was

prejudicial in this case because of the Appellant's ethnic

background, by refusing to abide by the evidence and facts

presented during the entire trial thus violating his civil and

constitutional nghts.

The Appellant would like to be more specific by

mentioning the following:

1) Jury prejudice due to Appellants’ ethnic

background which was revealed during the trial.

2) This is also revealed by the fact that the Jury did

not compensate Appellant even for medical expenses, which

totaled $50,000.00 and in light of the proven damages, a fact

which came as a complete surprise even to the presiding

Judge.

99a

Appendix H

3) The facts of the case were completely ignored by

the Jury. The Jury, in reaching their decision, chose to believe

the opinion of the Appellee’s physician, who performed no

medical, tests whatsoever on the Appellant in order to

determine his physical condition. The jury completely ignored

the testimony of three physicians who ran thorough diagnostic

test on the Appellant and then rendered their opinions.

4) The Jury’s decision was not based on the merits of

the case which was presented in Court under oath, but rather

on their perception of the Appellant and the physicians who

examined him and the results of the numerous tests performed

during the many office visits.

5) The Jury’s prejudice is also evident by the fact that

they chose to believe that a motorist who gets rear-ended by a

tractor trailer moving at a speed of 45-50 miles per hour,

which is equivalent to getting hit by a normal car moving at

the speed of 70 miles per hour and who has a negligible

chance of not being injured over the fact that it is almost

impossible for such a motorist to Survive much less come out

of such an accident without any injuries, is clearly an

indication of the highest order of prejudice which should be

evident to anyone.

6) The presiding Judge, although surprised by the

verdict of the Jury, condoned their decision by allowing this

unjust verdict to stand. When a Motion for New Trial and

change of venue were filed and this request denied, it would

cause anyone to question our whole system of Justice.

100a

Appendix H

7) Since the Judge’s decision has been allowed to

stand by the Higher Courts, the interest of justice cannot be

served, and has not been served.

APPELLANT'S FINAL ARGUMENTS

The Appellants in their final arguments before this

Court states as follows:

From the Court of Charles County, to the Court of

Special Appeals of Maryland, to the United States District

Court, and finally to the United States Court of Appeals for

the Fourth Circuit, the Courts have chosen clearly to allow the

points of law to supersede over the points of actual

documented facts and proven physical damages by

suppressing evidence pertinent to this case, and by denying the

Appellant a fair trial in order to air arguments and grievances

before the trial in order to air arguments and grievances before

the trial Court, and for the Court to resolve this matter. For

the Courts to continue to ignore the facts in this matter, then

the negative approach is a violation of the Appellant’s civil

and Constitutional nghts, due process clause set forth by the

and under the provisions of the first and fourteenth

amendments of the United States Constitution.

10la

Appendix H

The Appellant will never abandon this case until the

Courts resolve it, because of the physical and permanent

damages as a result of this accident has destroyed the

Appellant’s life because of the Appellee’s negligence. The

case will continue through the entire Federal Justice system,

the United States Supreme Court, and if the Courts continue to

deny this matter to proceed to trial, the Appellant will seek a

presidential decree to compel the Courts to resolve this matter.

The Appellant does not wish to Cause any embarrassment to

the Federal justice system, but if the Courts make it necessary

to do so, the Appellant will file Suit against the Federal Justice

system on grounds of discrimination, civil rights violations,

and constitutional law. The technicalities of law should not be

allowed to prevail in this matter. Under our justice system,

appeals are filed because of inadequate verdicts or an opinion

rendered by the lower Court, as in this case. If appeals or

petitions for review have no merits in the law then who do we

tum to seek justice?

CONCLUSION

The Appellants in this case pray to this Court to allow

the facts in this matter to prevail and allow this matter to

proceed to tral in order for the trial Court to resolve it.

Respectfully submitted

/s/ Chris Aloupis

Chris Aloupis

102a

Appendix H

4. PETITIONER’S COMMENTS REGARDING

JUDGEMENTOF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

In his NOTICE OF APPEAL it is obvious that the

petitioner, being a lay person, does not fully understand the

significance of jurisdiction and the part it plays in our court

system. Further proof of the petitioner’s misunderstanding of

the difference between the state courts and the federal courts is

his dialogue in his PETITION FOR REHEARING OF

JUDGEMENT where he wonder how the federal courts can

decide his case without examining “depositions”, “trial

transcripts’, etc. Here the petitioner does not realize that the

federal courts are merely trying to establish jurisdiction and

having failed to convince the Court of Appeals for the Fourth

Circuit, that the Honorable Judge Garbis, of the U. S. District

Court, was mistaken the court had no choice but to turn down

his appeal.

In his defense, the petitioner would like to say that he

failed again to make a very good case for himself and he hopes

that the Supreme Court will look beyond the words and phrases

appearing in his past appeals to the courts in order to determine

the petitioners real grievance. In his appeals, the petitioner has

tried his best to describe his case just as it happened in the state

courts with the hope that the federal courts would be able to

determine whether they could, according to the laws, give the

petitioner some relief from the judgment of the state courts.

However, even though the petitioner has failed in litigating his

case, he would like to state the reasons which forced him to

seek relief from the state courts.

103a

Appendix H

|. The award received for his injuries is so inadequate

as to represent, by all know opinion, a reversible error. Which

indicates that such judgment is illegal and depriving him of his

legal rights to obtain compensation for the proven damages

which he incurred. )

2. The Maryland Court of Special Appeals, using co.or

of state law has violated his Constitutional rights and civil

rights. Constitutional nghts given to the petitioner by the U.S.

Constitution. In addition, the Maryland Court of Special

Appeals violated the petitioners civil rights given to him by an

Act of Congress namely: 42 U.S.C. § 1983 in that by a clever

manipulation of state law took away his legal rights to recover

damages. In addition, the Maryland Court of Special Appeals

violated the petitioner’s Constitutional rights of due process of

law by forcing the Pro se petitioner to litigate his case only on

brief; by denying him oral arguments.

“Due Process of Adequacy™

“The Supreme Court reversed ruling that the

State court had denied the plaintiff due process

in the “primary” sense of an Opportunity to be

heard and to defend it Substantive right.”

Opportunity to be heart50 S. Ct. at 454 281

U.S. at 681 (per Brandeis. J.).

104a

Appendix H

Basically, then the Maryland courts were very unfair

and unjust; which are the basic principles upon which due

process of law rests.

3. The final reason the plaintiff offers for removing

his case from state court is to be found in the opinion given by

the Honorable Judge Harrell, J. of the Maryland Court of

Special Appeals which is given in Appendix C and which

quotes the highest court of the state of Maryland quote: “As

the Court of Appeals stated [,] ... that the verdict may have

been the result of compromise, or of a mistake on the part of |

the jury, is possible. But verdicts cannot be upset by |

speculation or inquiry into such matters.”

Now this statement is clear and concise and leaves no

room for interpretation. The highest court of Maryland then is

speaking through the honorable Judge and is telling the

appellant that the jury verdict, which by every other opinion

known to the petitioner represents a reversible error, will not

be reversed and, furthermore, the petitioner, according to the

laws of Maryland, had lost his nights both civil and

Constitutional.

The Honorable Judge Garbis of the U.S. District Court

implies that the plaintiff does not have a removable case but

that if the plaintiff had diversity citizenship, even though his

Case 1s an automobile accident case, the plaintiff could have

had his case removed and tried in the federal courts. The

honorable judge further implies that the plaintiff would have

had a case against the Maryland judicial branch of

105a

Appendix H

eovernment, presumably under civil rights statute 42 U S.C §

1983, but for the fact that he failed to appeal his case to the

highest court of the state (the Court of Appeals); he, therefore.

loses his rights there as well.

To summarize what the petitioner understand of all this

is that the defendant in his case gets off without any liability

for the damages he has caused, the state courts have no

liability for the rights they have violated and only the plaintiff

who got hit by a tractor-trailer is the loser. However, the

petitioner still feels that he federal courts have jurisdiction in

his case since if they have diverse citizenship jurisdiction,

which is based only on a perceived prejudice which is

Supposed to exist between the courts of one state and the

citizens of another, they should also have Jurisdiction in his

case in which the prejudice of the courts of his state against

him were actually real and supported by actual proof, and

which prejudice, according to all well established opinion

manifests itself in the jury’s verdict. The petitioner then

strongly believes that such verdict alone is sufficient to raise a

federal question and to allow him to obtain a fair trial in the

federal courts. As mentioned earlier:

“Removal of cases from state courts to federal

courts is acknowledged mode of protecting

rights guaranteed under Federal C onstitution.”

Virginia v. Rives, (1880) 100 U.S. 313, 25 L Ed

667

106a

APPENDIX I — DEPOSITION AND COURT

TESTIMONY OF THE PHYSICIANS FOR THE

PLAINTIFF AND THE DEFENDANT

From the Court Testimony of Dr. Buckholtz

(Neurologist) for the Defense

Dr. Buckholtz is questioned by plaintiff's counsel as

follows:

Question: “Dr. Karim has testified that Mr. Aloupis

suffered a brain injury. In your opinion is he

wrong?”

Answer: “Yes, very much so.”

The next question put to Dr. Buckholtz involved the

findings of a Radiologist who studied the MRI scans (Dr.

Mann).

Question: “You don’t know anything about Dr. Mann,

though do you?”

Answer: “Nothing.”

Question: He read two separate MRI and saw that same one

and half centimeter area that you did, correct?"

Answer: “Yes.”

Question: “On both occasions, when he said it was either

an old infarct or evidence of trauma, he was

mistaken. Is that correct?"

Answer: “That is my opinion.”

Question:

Answer:

Question:

Answer:

Question:

Answer:

107a

Appendix |]

“June 19, 1992. when he Said that there was

evidence probably representing an old infarction,

he was wrong, Is that correct?”

“That is my opinion.”

“In your opinion, it shows a cyst?”

“Yes.”

“The emergency room physician that diagnosed

cervical strain?”

“I don’t disagree with that.”

Note: Dr. Fitzgerald diagnosed the plaintiff

as having a rupture of the inner ear causing him to

have dizziness Symptoms; symptoms which persist

to this day.

Question:

Answer:

Question:

Answer:

“You completely disagree with Dr. Fitzgerald

about his diagnosis in this case. Is that true?”

“I completely disagree with Dr. Fitzgerald.”

“T must assume you agree with Dr. Ghovanlou’s

diagnosis of a rotator cuff tear?”

“That is an orthopedic, I am a neurologist. |

have been careful to Say that all along.”

108a

Appendix |

Question: “Now it is your opinion, at that point in time

nonetheless, he did suffer from cervical strain?"

Answer: “At what point in time?”

Question: “Right after the accident?”

Answer: “It can last up to a few months after an injury,

yes.”

PETITIONER’S COMMENTS

As can be seen by this testimony that the defense

witness casts doubt on the findings of two of the plaintiffs’

witnesses, but not the findings of the plaintiff's orthopedic

surgeon, and the cervical strain diagnosis. Here the defense

witness tells us that the abnormal indication of the brain MRS

scan is a cyst. Now, of course, this brain cyst just happens to

be in the exact same spot where the plaintiff tells us his head

smashed against the rear window.

From the Sworn Deposition of Dr. Ghovanlou

(Orthopedic Surgeon) for the Plaintiff — Examined

by the Defense Counsel Mr. Goetsch.

Question:

“When did you first see Chris Aloupis as a

patient?"

Answer: eS

Question:

Answer:

Question:

Answer:

Question:

Answer:

Question:

Answer:

109a

“Could you tell me when in 1992? You can refer

to your file; your complete file is there in front of

you.

“April 8, 1992.”

“Under what circumstances did he come to you

in 19929"

“He was in a car accident shortly before that. On

April 8, 1992 he was in a car accident; on April

13, ] saw him.”

“Okay, and when you conducted your

examination of him in April of 1992 what did

you find?”

“In April of 1992, he was seen here with pain

around the neck area and shoulder, lower back.”

“Okay.”

“And also headache and some symptoms related

to nausea, dizziness. After the car accident,

apparently he was taken to the local hospital

where he was X-rayed given medication and a

brace and was released home.”

Question:

Answer:

Question

Answer:

Question:

Answer.

110a

Appendix |

“Did you treat him for the neck and shoulders, or

did you treat all of these, or did you refer him to

others for the headache and nausea?"

“Yes. After the second or third visit, | referred

him to a neurologist. His symptoms continued.”

“Do you have any opinions about his

presentation regarding his shoulder, what

shoulder and what the problem was?"

“That was the left shoulder initially and he had

pain and weakness, limitation of motion in the

left shoulder. The X-ray. Was negative for

fracture or dislocation. The MRI was suggestive

of a partial tear of the rotator cuff and finally was

confirmed with a arthrogram that he has a tear of

the supraspinatus on the left side.”

“Is there any way to tell when that happened?”

“Initially when he came, his symptoms were

related neck and left shoulder and lower back

So gain his problem started nght after that.”

PETITIONER’S COMMENTS

As noted, this sworn deposition was conducted by the

defense counsel, Mr. Goetsch. Now in the defense counsels

“DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION

FOR NEW TRIAL” (Appendix E, pg. 31a) the defense

counsel tells the judge, the plaintiff “did not suffer any injury

Illa

Appendix |

at all”. Now how can this be? And how can we reconcile this

with the verdict in this case, especially when this sworn

testimony was presented to the judge and jury in court and the

defense counsel was aware of it; since he was the one who

conducted it.

On the other hand. if the jury is going to disregard all

evidence Supporting the plaintiff and believe only the defense

witness, doesn’t this demonstrate partiality? Most certainly.

From the Court Testimony of Dr. Karim

( Neurosurgeon) for the Plaintiff

Question: “In your medical opinion, was that second MRI

necessary?"

Answer: “Yes, it was.”

Question “When you reviewed the second MRI, did you

have any reason to believe that the film showed a

Cyst of some type in Mr. Aloupis’ brain?"

Answer: “No, he doesn’t have a cyst.”

Question: “Why are you so certain about that?”

Answer: “Because I have seen his MR] scan.”

Question:

Answer:

Question:

Answer:

Question:

Answer:

l12a

Appendix |

“So, to a reasonable degree of medical certainty

within the field of neurosurgery, Mr. Aloupis

does not have a cyst in that area of his brain?"

“Not that I know of.”

“Were you able to reach a conclusion as to what

this abnormality meant at that point in time?"

“Well, that MRI, the subsequent MRI scan

showed that there was that this patient had

sustained, in my opinion, an injury to the brain

as a result of the accident and that in his right

cerebellum there is an area of abnormal signal

intensity which looks bnght on certain technique

of the MRI scan.”

“Aside from this area of the brain where there is

this unusual signal, did you have any other

findings within your field of specialty of

neurosurgery concerning Mr. Aloupis and

injuries he suffered as a result of this accident?”

“Yes, | believe that Mr. Aloupis has suffered

aggravation of his previous existing cervical

spondvlosis, which means that there were

changes in this cervical spine, degenerative

changes that were really compatible with

somebody his age. But he was asymptomatic, he

had no symptoms from those until the time of the

accident. So! believe that he had aggravation of

previously existing spondylosis in his neck.”

l13a

Appendix ]

From the Court Testimony of Dr. C. Keller

(Psychiatrist) for the Plaintiff

Question:

Answer:

Question:

Answer:

“Do you classify Mr. Aloupis’ depression ag

mild, moderate or severe in this case?”

“I think it is mild to moderate in terms of the

subjective symptoms. The great disfunction that

he has, inability to work and so on. is not directly

the result of the depression but appears to be

more directly the result of the pain that he has.”

“Well let me ask you this’ Do you have an

opinion to a reasonable degree of certainty

within the field of psychiatry as to the cause of

Mr. Aloupis’ depression?"

“According to the history that I elicited from Mr

Aloupis, he was well, working and very

infrequently had cause to visit physicians in the

previous 20 to 30 years. Following the accident

in 1992, he had all of the pain and physical

dysfunction that initially led to the anxiety and

Subsequently to the depression. | think that his

symptoms followed the accident and are due to

the pain and disability, the loss of work and

income that resulted from that accident.”

Question:

Answer:

Question:

Answer

114a

Appendix |

“Doctor, when you examine patients, do you

utilize some means to detect whether the patient

is faking or feigning their symptoms?"

“The diagnosis is based on the history and

finding at the examination. The possibility of

falsifying them is approached by looking for

consistency in what the patient tells me and at

the same time.”

“When you say consistency do you mean from

visit to visit?”

“From visit to visit, if he tells me pretty much

the same thing each time, and that-consistency

has to be balanced against what | would regard a

textbook descriptions, If someone wants to fool

me by complaining of an illness, | would expect

them to go read up about it and then try to do

what he reads. But | think that would come

across in a precise and stilted way. There

wouldn’t be any deviation. 7

As I mentioned before, with persons who are

depressed, it is common for persons who are

mildly to moderately depressed to be able for

short periods of time to seem to enjoy

themselves, feel free, not appear to be depressed,

so that Mr. Aloupis, for example, could come in

and sometimes tell me about humorous

anecdotes and laugh when he told me. | don't

Question:

Answer:

Question:

Answer:

Question:

Answer:

Question:

115a

Appendix |

think that’s an indication of his not being

depressed, I think that’s and indication that he

hasn't been following a script.”

“All nght. Did you have any indication in your

visits that Mr. Aloupis was faking his pain?"

“Pain is a very difficult symptom to evaluate

because pain is subjective. Nobody else can

know what somebody else’s pain is. So, | start

by accepting what the patient tells me as being

accurate. The only way that I could know that it

is not accurate would be if I were to see him

behave in a way that indicated that he was pain

free.”

“Did you ever see him behave in such a

fashion?"

“No”

“Is the fact of Mr. Aloupis’ complaint of pain

consistent with you diagnosis of depression

caused by that pain?"

“Yes.”

“Dr. Keller, do you have an opinion as you sit

there today to a reasonable degree of psychiatric

certainty as to whether Mr. Aloupis’ condition of

depression is permanent in nature?”

Question

Answer

Questien

Answer

1 16a

Appendix |

Yes or no, do you have an opinion?

“Yes orno? Yes.”

“Could you please tell us what that opinion ts?"

“That he is likely to stay depressed for some

long time.”

Cross-Examination by the Defense Counsel

Mr. Goetsch Asking Dr. Keller

Question

Answer

Question

Answer

Question

“One of the things that vou said that you thought

he was anxious about was his inability to work

and earn an income; ts that correct?"

“ves.

“And that would seem to be a normal thing to be

anxious about, an inability to earn an income:

isn't that correct?"

“Yes.”

“Did Mr. Aloupis ever tell you that for the

twenty years that his company was in existence,

he never took any income from it?"

Mr. Finci (plaintiff's counsel): “Objection you honor™

The Court: Overruled

117a

Appendix |

Question: “(Again) the question was: Did Mr. Aloupis

ever tell you that for the entire length that his

company was in existence, | believe he said 1974

to 1994, on the stand he changed it to 1978 or

1979 to 1994, that he never took any income

form the company?"

Mr. Finci: (plaintiffs counsel) Objection you honor

Same objection Mischaracterizes

The Court: Overruled.

The Witness: I didn’t question him in detail about that

Question “Did he tell you that?”

Answer: “He did not tell me that. no”

PETITIONER’S COMMENTS

In this testimony, Dr. Keller is telling the court that. in

his opinion, the pain and disability the plaintiff is experiencing

and which also resulted in loss of work and income as a result

of the accident is real, and that the symptoms followed the

accident.

On the other hand. the defense counsel has found a clever way

to bring into the court testimony and into evidence the

plaintiff's finances and strongly implies to the courts that since

the plaintiff never took any income from his company for 10

to 20 years, the depression could very well derive from this.

The defense counsel then is trying to refute the testimony of

the psychiatrist who testified that the pain is real and the

118a

Appendix |

defense counsel is also trying to refute the testimony of the

orthopedic surgeon who stated, with absolute certainty, that

the plaintiff had a rotator cuff tear. The defense counsel

further leads the court to believe that the depression had

always existed in direct contradiction to all the lay witnesses

produced by the plaintiff which testified to the contrary.

In bringing the financial condition of the plaintiff into

evidence (although cleverly) the defense counsel has done

something which is considered improper and prejudicial.

Note: “Generally, any admission of evidence

concerning the financial standing, wealth, or property of

either party is prejudicial error on the issue of compensatory

damage.” Oakes v. Baker, 85 Cal. App. 2d 168, 192 P. 2d 460

(1948). The rule was stated.

From the Court Testimony of Dr. Fitzgerald

(Otolaryngologist) for the Plaintiff

Question: “Now, all those tests that you’ve just described,

were they medically necessary in your opinion?"

Answer: “They were. If 1 was to discuss and examine Mr.

Aloupis for the condition of dizziness, yes they

were.”

Question:

Answer:

Question:

Answer:

Question:

Answer:

Question:

Answer:

119a

Appendix |

“Now, not all of those tests were positive with

respect to Mr. Aloupis Why don’t you describe

which of those tests that you received results

back from were significant in reaching your

diagnosis with respect to Mr. Aloupis."

“There were three — two tests that were definitely

abnormal and one test that was considered

borderline abnormal ”

“Do you have an opinion to a reasonable degree

of medical certainty within your field of

specialty as to the condition that Mr. Aloupis

suffers as a result of this testing?"

“Yes, I do.”

“What is your Opinion to a reasonable degree of

certainty within your specialty as to the

condition he suffers?"

“My medical opinion in this case 1s Mr. Aloupis

suffers from a rupture of the inner ear on the left

Side. This rupture jis called a perilymphatic

fistula and it is very Commonly associated with

head injuries.”

Once again, let me ask you, Doctor, on the basis

of those things that have once again been raised

by Mr. Goetsch, do you change your diagnosis

today?"

“No, I don’t.”

120a

Appendix |

PETITIONER’S COMMENTS

Here, Dr. Fitzgerald tells us that the plaintiff has

suffered a rupture of the inner ear on the left side, which just

happens also to be on the same side as the rotator cuff tear

diagnosed, with certainty, by Dr. Ghovanlou (the orthopedic

surgeon )