When challenging an expert’s causation opinion that contradicts peer-reviewed medical literature under Rule 5-702(3), does the movant need to provide an affidavit from its own expert to explain the inconsistency between the literature and the challenged opinion? No.
Rule 5-702 does not require an expert affidavit for a court to consider relevant medical or other peer-reviewed scientific literature when ruling on the admissibility of expert testimony. Instead, it is a matter of counsel’s judgment (and possibly budget) to consider whether a competing expert affidavit would help show the court that the challenged opinion is unreliable and inadmissible under Rule 5-702. Although a good expert’s affidavit is often helpful, it might over-complicate some proceedings by opening a prolonged and distracting “battle of the experts.”
Sometimes, professional peer-reviewed literature speaks for itself and most effectively rebuts the challenged opinion on its own. Judges, as “gatekeepers,” do not require expert affidavits to walk them through such literature. But dicta from a recent Court of Appeals opinion, Frankel v. Deane[i], seems to suggest otherwise. This could lead some courts to invent a nonexistent expert-affidavit requirement under Rule 5-702.Read More…
By John Grimm
Tuesday was an election night full of historic firsts for Maryland—including the first Black governor and attorney general, the first South Asian woman lieutenant governor, and the first woman to win statewide state office independently. It also marked the fruition of the seemingly quixotic legislative project of giving Maryland’s appellate courts names that make sense. By a margin of 73% to 27%, voters approved a constitutional amendment changing the name of the state’s highest court from the Court of Appeals to the Supreme Court of Maryland (and the title of its jurists from judge to justice), and the state’s intermediate appellate court from the Court of Special Appeals to the Appellate Court of Maryland.Read More…
Motions are seldom the feature of an appellate opinion, but often play a prominent role in moving your case, efficiently and effectively, through the appellate process. Title 8 of the Maryland Rules, in Rules 8-431, 8-603 and others, impose requirements on the motion’s timing, scope, contents and appearance, as well as any response. The court may rule quickly, particularly when the motion is filed before the brief, and even dismiss an appeal on the court’s own initiative (see Rule 8-602(a)). While you may be looking forward to the next edition of the Appellate Practice for the Maryland Lawyer: State and Federal, for updates on the Motions Practice in State Appellate Courts chapter (as the author of that chapter, I certainly am!), consider in the meantime the “Highlighted Cases” pages of the Court of Appeals and Court of Special Appeals, each providing in real time examples of motions, responses and rulings. These websites are a helpful primer to appellate practitioners, whether you are seasoned or green.
In other news, the Maryland Appellate Blog wishes to congratulate one of our own, Brad McCullough, on his appointment to the Circuit Court for Montgomery County. He has been a Blog editor and colleague since we started in 2013. We will miss him, but our loss is Maryland’s gain.
Last fall, I wrote a post asking if a haircut could support a jury instruction regarding destruction or concealment of evidence. (October 25, 2021, “When can a haircut amount to destruction or concealment of evidence?”) In Rainey v. State, 252 Md. App. 578 (2021), the defendant was charged with murder. At the time of the killing, he had long dreadlocks, but when he was arrested, his hair was close-cropped. The Court of Special Appeals held that the evidence at trial supported an inference that Rainey’s drastic haircut showed a consciousness of guilt. The intermediate appellate court also held that the trial court did not abuse its discretion in giving the pattern jury instruction dealing with destruction or concealment of evidence. The Court of Appeals granted certiorari and affirmed the intermediate appellate court. Rainey v. State, No. 54, Sept. Term, 2021.
Here are the facts. The victim was found lying dead in a Baltimore alley, with multiple gunshot wounds. A witness saw two men arguing, one of whom wore his hair in long dreadlocks. The man with dreadlocks walked away. A few moments later, the witness heard several booms and saw the man with the dreadlocks with his arm raised and the other man lying in the alley. The man lying in the alley died. The man with the dreadlocks ran off. Citiwatch and surveillance video also captured these events.
Six days later, the police showed the witness a photo array of men wearing shoulder-length dreadlocks. She selected a photo of Rainey, noting that the man in the photo looked like the shooter. A month later, she saw the shooter on the street, but he now had a very short haircut. She called the police and the man was arrested. The witness “had lived in the neighborhood for several years” and “was familiar with the illicit drug trade occurring within the neighborhood and [Rainey’s] specific involvement in the local drug trade for the past twelve to eighteen months.” Slip Op. at 4. At trial, she identified Rainey as the person with dreadlocks in the video. She also testified that she was certain he was the shooter. Id. at 6. She further “testified that between the shooting and the arrest, [Rainey] cut his shoulder-length dreadlocks to a short, close-cropped hairstyle.” Id. (footnote omitted).Read More…
On Friday, the Maryland Court of Appeals granted the State Board of Elections’ petition for immediate review of the challenge by Delegate Daniel Cox to the circuit court order allowing the canvassing of mail-in ballots to begin on October 1 instead of November 9. The Court of Appeals expedited the appeal, with both sides’ briefs due Tuesday, and oral argument on Friday, October 7.
The questions presented are:
In re: Petition for Emergency Remedy by the Maryland State Board of Elections – Case No. 21, September Term, 2022
Issues – Election Law – 1) Did the trial court correctly rule that the remedy sought under Md. Code § 8-103(b)(1) of the Election Law (“E.L.”) article comports with the principle of separation of powers because the remedy, an adjustment to the electoral calendar, is a function routinely entrusted to the judicial branch? 2) Did the trial court correctly rule that the incoming volume of mail-in ballots and inadequate time frame in which to process them constitute “emergency circumstances” that “interfere with the electoral process” as those terms are used in E.L. § 8-103(b)(1)?
Election Law § 8-103(b)(1) provides, without elaboration: “If emergency circumstances, not constituting a declared state of emergency, interfere with the electoral process, the State Board or a local board, after conferring with the State Board, may petition a circuit court to take any action the court considers necessary to provide a remedy that is in the public interest and protects the integrity of the electoral process.”
The State Board’s petition notes that the trial court allowed Delegate Cox, the Republican nominee for governor, to intervene as a matter of discretion, not right. The State Board welcomed his participation. A footnote states: “Delegate Cox’s intervention in the case mooted any concerns or controversies regarding the justiciability of the one-party proceeding.”
I don’t see the concern about justiciability in the circuit court. The Maryland Constitution has no “case or controversy” clause, and the State Board did not petition under a statute, such as the Declaratory Judgment Act, that requires an actual controversy. Many matters are justiciable in circuit courts when no controversy exists. For example, circuit courts decide uncontested petitions for adult name changes and can even waive the requirement of publication that would give notice to anyone who might object.
On the other hand, although I may well be missing something, I have trouble seeing why Delegate Cox has standing to appeal. Appellate jurisdiction requires a notice of appeal filed by a person aggrieved by the order or judgment, under the usual principles of legal standing. See Buchwald v. Buchwald, 175 Md. 103, 114 (1938). Standing requires a wrong different in character and kind from that suffered by the public generally.Read More…
On September 7, 2022, the Fourth Circuit issued an order denying reconsideration en banc of Kenneth Ravenell’s petition for reconsideration of the three-judge panel’s affirmance of the district court’s denial of his motion for bail and stay of sentence pending appeal.
Judge Wynn issued a dissenting opinion, joined by Judges Motz, King, and Thacker, questioning why the full court refused to reconsider the denial of Mr. Ravenell’s motion for release pending appeal when the court was willing to reconsider the denial of former Virginia Governor Robert McDonnell’s motion for release pending appeal.
Kenneth Ravenell was a prominent African American attorney in Baltimore who argued cases all over Maryland, the United States, and before the United States Supreme Court. In December, 2021, Mr. Ravenell was convicted of federal conspiracy to commit money laundering. In June, 2022, he was sentenced to 57 months in federal prison.
Mr. Ravenell filed an appeal in which he alleged that the district court committed reversible error by refusing to instruct the jury on the statute of limitations because the government was required to prove that the alleged money laundering conspiracy “continued into” the applicable limitations period.Read More…