[Update: The Court’s April 21 opinion ruled for the insurer on the causation issue and declined to reach the other questions presented.]
On February 5, 2015, the Court of Appeals of Maryland will hear argument in an insurance coverage action, Maryland Casualty Co. v. Blackstone International. If you’re not an insurance coverage practitioner, the questions presented are not likely to make much sense to you. Whichever way the Court of Appeals rules, however, the opinion is likely to draw national attention in insurance coverage circles.
The year’s first big snowstorm for the state has also brought a modest flurry of certiorari grants from the Court of Appeals, including a couple matters of interest for mass-torts practitioners: the effect of component replacements on a manufacturer’s duty to warn, and qualification of expert witnesses in lead-exposure cases. So after you’re done digging out from the blizzard, dig in to these new additions to the high court’s docket, found after the jump.
From a distance, the federal-preemption doctrine seems rather straightforward – states can regulate virtually anything unless the federal government has put it off-limits. In practice, however, the doctrine is anything but simple, and the line between preempted and non‑preempted claims can be hard to find. In the context of FDA-regulated products, such as food, prescription drugs, and medical devices, defendant manufacturers/sellers are quick to point to the Supreme Court’s Buckman opinion for the proposition that state-law claims involving FDA-regulated products are completely preempted. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001). But plaintiffs are just as quick to point to the Supreme Court’s opinion in Medtronic v. Lohr, 518 U.S. 470 (1996), to argue that states are perfectly free to regulate the same products. Despite the controlling effect of both precedential decisions, in the vast majority of cases where preemption is argued, there is a correct answer under existing law. It just usually takes careful analysis to find.
By Alan Sternstein*
In Montgomery County v. Fraternal Order of Police, No. 175 (Md. Ct. App. 2014), the Maryland appellate courts will confront for the first time the evolving doctrine of official speech. Official speech is any statement by a branch or entity of government or an individual acting in official capacity. It may be made in multiple forms, including oral, written, and electronic. Until more recent times, official speech has largely been an unquestioned prerogative of government. Governments need to communicate with their citizenry to exercise powers and effect programs, no less than individuals need to communicate with each other in order to achieve important or vital ends. The increase in partisanship at all levels of government, however, has turned an increasingly critical eye toward the lawful scope of official speech, with particular respect to its means of exercise and intended ends. The result has been judicial challenges regarding the reach of and external limits on official speech.