Looking for the Next Big Case

By Brad McCullough

During its past two terms, the Court of Appeals issued several decisions that attracted a lot of attention. It’s hard to know whether any decision this year will draw the same level of interest, but a quick review of the cases to be argued during September and October revealed at least two cases that should prove interesting.One of those cases is Kulbicki v. State, No. 13, September Term 2013, scheduled for oral argument on October 3. James Kulbicki was convicted of murdering a young woman, whose body was found at Gunpowder State Park. The prosecution’s case featured several expert witnesses, one of whom qualified as an expert in comparative bullet-lead analysis, or “CBLA.” Another prosecution witness was presented as an expert in firearms identification. The Court of Special Appeals affirmed Kulbicki’s convictions and the Court of Appeals denied his petition for writ of certiorari.

About ten years after denying Kulbicki’s petition, the Court of Appeals, in Clemons v. State, 392 Md. 339 (2006), held that the conclusory aspects of CBLA are not admissible under the Frye-Reed test. In addition, Kulbicki learned that the firearms identification expert had lied about his academic qualifications and that much of his trial testimony was simply wrong. Kulbicki sought postconviction relief, the circuit court denied Kulbicki’s petition, and the Court of Special Appeals affirmed.

The Court of Appeals granted Kulbicki’s petition for writ of certiorari. The petition presents four issues, two of which seem particularly interesting. First, does a conviction obtained through the use of scientific evidence that is later demonstrated to be unreliable, misleading, and inadmissible violate a defendant’s guarantee of due process? Second, does the use of perjured expert testimony by a State expert violate a defendant’s due process rights when the perjured testimony involves the expert’s qualifications and background? This could be a fascinating case.

On September 10, the Court will hear argument in Rosen v. BJ’s Wholesale Club, Inc., No. 99, September Term 2012. Russell and Beily Rosen were members of BJ’s Wholesale Club, which is a membership warehouse club. BJ’s provides a play center for members’ children. But a member’s child may use that center only if the member signs an agreement releasing BJ’s from any claims arising from the child’s use of the play center and indemnifying BJ’s against such claims. The Rosens’ five-year old son was severely injured while playing at the play center and suffered a serious brain injury. The Rosens sued BJ’s and the circuit court granted BJ’s motion for summary judgment, concluding that the release precluded the Rosens’ claim.

Following a majority of other jurisdictions that have considered the issue, the Court of Special Appeals reversed, holding that a parent may not waive by agreement a minor child’s future negligence claim against a “commercial enterprise,” i.e. a for-profit, commercial entity that principally serves private interests. The court also struck down the indemnification clause, holding that it obviated the public policy considerations that supported the court’s rejection of the exculpatory clause of the release agreement. The Court of Appeals granted a writ of certiorari in order to address this important issue of public policy.

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