February 2018 Maryland Certiorari Grants

The Court of Appeals of Maryland added eight cases to its merits docket today. Expert standards have been a hot topic as of late, and today’s list includes expert issues in both civil and criminal cases. There are some nuts-and-bolts issues, like authentication rules and discovery sanctions. Not surprisingly, in light of a dissent by Judge Berger, the grants include the Kennedy Krieger Institute’s challenge to a negligence claim arising out of a lead paint study.

(We’ve been endeavoring to include links to any relevant Court of Special Appeals opinions, but it will take a little extra time because the “Search Site” feature on the judiciary’s website is still a bit wonky after last month’s launch of the redesigned site.)

Jason Adam Fallin v. State of Maryland – Case No. 79, September Term, 2017

Issues – Criminal Law – 1) In a child sex abuse case, did the trial court err by allowing an expert witness in child abuse disclosure to opine that the alleged victim showed no “signs of fabrication or coaching” and that the expert had no concerns about fabrication in her pretrial interviews with her? 2) Did CSA incorrectly hold that its opinion in Yount v. State, 99 Md.App. 207 (1994) “narrow[ed]” this Court’s opinion in Bohnert v. State, 312 Md. 266 (1988), such that “it is clear that in certain scenarios, an expert witness may testify as to whether they believe one is fabricating or not”? 3) Was the trial court required to instruct jurors that the credibility of another witness is not a proper subject of expert testimony? 4) When the trial court allowed a non-licensed social services investigator to repeat what the alleged victim told her under the tender years exception to the hearsay rule, did CSA incorrectly hold that the error was harmless? 5) Did Petitioner fail to preserve his claim regarding the expert’s testimony where he did not make contemporaneous objections or request a continuing objection? 6) Did Petitioner fail to preserve or affirmatively waive any error in the trial court’s curative instruction where he suggested the language used by the court and, after the court gave the instruction and asked if it was satisfactory, he stated that it was?

In re: Adoption/Guardianship of C.E. – Case No. 77, September Term, 2017

Issues – Family Law – 1) Does a CINA child have a protected interest in achieving a timely permanency plan of adoption that transcends his parents’ right to raise him, where the three (3) year old child has resided in the same relatives’ home since birth and where the trial court found, by clear and convincing evidence, that reunification is “unachievable … in the foreseeable future”? 2) Is it an error of law for a court to change a CINA child’s permanency plan in guardianship proceeding conducted pursuant to Family Law §5-323? 3) Was the court’s application of its findings of exceptional circumstances to justify custody and guardianship to relatives instead of using the exceptional circumstances to support a grant of guardianship, an error of law in contravention of the statute’s clear preference for adoption over custody and guardianship? 4) Did the juvenile court err when it failed to find that the CINA child’s father was unfit to remain the child’s legal father in light of its finding, by clear and convincing evidence, that there was no likelihood that father would ever be able to safely care for the child? 5) Did the juvenile court err as a matter of law in its exceptional circumstances analysis, by elevating an incidental “parental” relationship over the child’s best interests in achieving the permanence afforded by adoption?

Allan Jackson v. State of Maryland – Case No. 78, September Term, 2017

Issues – Criminal Law – 1) Did CSA err in holding that evidence had been properly authenticated, despite acknowledging that the evidence was not what its proponent claimed? 2) Can records of regularly conducted business activities be authenticated through inferences and “common knowledge,” even though Rule 5-902 requires “[t]estimony of authenticity”?

Kennedy Krieger Institute, Inc. v. Ashley Partlow – Case No. 82, September Term, 2017

Issue – Torts – Did the CSA, relying on Grimes v. Kennedy Krieger Institute, 366 Md. 29 (2001), err in imposing a duty on Kennedy Krieger to an individual who was not enrolled in the research study at issue?

Violeta Maranatan, et al. v. Saquanna Walker – Case No. 83, September Term, 2017

Issues – Torts – 1) Did CSA err in finding that the trial court must expressly articulate its consideration of each of the Taliaferro factors in order to properly exercise its discretion in ordering discovery sanctions? 2) Did CSA misapply the abuse of discretion standard when it granted so little deference to the trial court’s decision regarding discovery sanctions?

Clement Reynolds v. State of Maryland – Case No. 84, September Term, 2017

Issue – Criminal Law – Was Petitioner denied due process when the trial court permitted the prosecutor to question him about “what he did not tell the police” about his alibi defense, even though the omissions were a result of Petitioner’s post-arrest, post-Miranda invocation of silence and were not inconsistencies with his trial testimony?

Stanley Sugarman, et al. v. Chauncey Liles, Jr. – Case No. 80, September Term, 2017

Issues – Torts – 1) Respondent’s medical expert opined that lead exposure caused cognitive deficits in two distinct areas measured on neuropsychological evaluation. But she conceded that the epidemiological data she relied upon did not show a causal association between lead exposure and either metric. Did CSA err when it held that her opinion had a sufficient factual basis? 2) Did CSA err when it held that the expert had sufficient basis to opine that lead exposure caused Respondent to suffer IQ loss? 3) The damages experts’ opinions that Respondent, a high school graduate accepted to two four-year colleges and enrolled in one, has incurred millions of dollars in loss of earning capacity were based on assumptions not supported by the evidence. Did CSA err when it concluded that Petitioner’s arguments regarding the insufficient factual and methodological bases underlying the expert’s opinions went to the weight, not the sufficiency, of the evidence?

Washington Gas Light Company v. Maryland Public Service Commission, et al. – Case No. 81, September Term, 2017

Issues – Public Utilities – 1) Did CSA err when it held that the legislative-intent provision of a statute “acts as a substantive restriction” of the statute’s unambiguous substantive terms? 2) Did the Commission err when it added a new eligibility requirement for infrastructure replacement projects that is not found in the substantive provisions of the STRIDE statute, Public Utilities Article §4-210?