Archive | March 2021

What is a “Daubert issue” in Maryland?

By Derek M. Stikeleather

After Maryland’s much-publicized adoption of the Daubert standard for expert testimony in its final opinion of last term, Rochkind v. Stevenson, 471 Md. 1, 38 (2020), many practitioners are left wondering, “what is a ‘Daubert issue’?” The question has greater urgency because the Rochkind opinion made Daubert immediately effective and applicable to all “cases that are pending on direct appeal [on Aug. 28, 2020] . . . where the relevant question has been preserved for appellate review.”[i]

The short, technical answer is that every expert opinion presents a “Daubert issue” because Daubert applies Rule 5-702, which applies to all expert testimony. Daubert presents no comparable dichotomy between cases that present “Frye-Reed issues” and those that do not. The salient question for practitioners is not whether Daubert applies to an opposing expert’s opinion —it does—but whether the opinion merits a formal challenge in the form of Daubert briefing and a possible hearing. The fact that Daubert now applies to all expert testimony does not mean that one should always—or even typically—file Daubert briefs. Although countless expert opinions would withstand Daubert inquiry and be admissible, it will never be true that Daubert simply does not apply to an expert opinion, as was once true for some opinions under Frye-Reed.

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Supplemental Authority Letters and Other Unwritten Maryland Appellate Rules

By Steve Klepper (Twitter: @MDAppeal)

Ever since this blog launched in 2013, I’ve received fairly regular calls and emails asking about arcana of Title 8 of the Maryland Rules, governing procedure in the appellate courts. Perhaps the most frequent question is how to notify a Maryland appellate court of new on-point authorities.

In the federal appellate courts, the answer is simple. You file a Rule 28(j) letter:

Citation of Supplemental Authorities. If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.

Maryland Rule 8-504, our equivalent of the federal Rule 28, lacks any provision for supplemental authorities. Does that mean supplemental authorities are forbidden? Or must you move for leave? Do the supplemental authorities take the form of a letter or a supplemental brief?

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Mercer v. Thomas B. Finan Center: Cuckoo’s Nest Redux?

By Alan B. Sternstein

The Court of Special Appeals reported decision in Mercer v. Thomas B. Finan Center, September Term, 2019, No. 1398 (Md. App. decided Jan. 28, 2021) (“Mercer”), addressed procedural requirements applicable in the context of the administration of antipsychotic drugs against a patient’s will. More particularly, the issue was whether an institutionalized mental health patient was denied procedural due process, when, at the start of an administrative hearing regarding the involuntary administration of antipsychotic drugs, the administrative law judge (“ALJ”) declined to conduct an on-the-record colloquy to confirm that the patient had knowingly and voluntarily waived his statutory right to counsel.

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March 2021 Maryland Certiorari Grants

On Friday, the Court of Appeals granted review in four cases, all civil. It has assigned two cases to the current Term, meaning they will be argued this spring, and two for the next Term, meaning they will be argued this fall.

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An expert witness fails to bridge the “analytical gap.”

By Brad McCullough

The Court of Special Appeals recently decided Matthews v. State, No. 3280, Sept. Term, 2018 (Feb. 25, 2021), a case where two homicide victims were killed by shotgun blasts delivered at close range. The sole issue at trial was the identity of the shooter. Writing for a panel that included Senior Judge Paul Alpert and Judge Kathryn Graeff, Judge Douglas Nazarian observed: “The story of this case is complicated and hard to follow.” Those complications were due largely to the cast of characters who served as trial witnesses.

The case is the first reported opinion dealing with the reliability of expert testimony issued after the Court of Appeals’ decision in Rochkind v. Stevenson, 471 Md. 1 (2020). But the panel’s application of Md. Rule 5-702(3)—with its requirement that an expert witness not fall into an “analytical gap”—did not depart from pre-Rochkind jurisprudence, confirming that even before Rochkind’s adoption of the Daubert standard, Maryland courts strictly applied Rule 5-702’s mandate that expert testimony be based on a sufficient factual basis. Unlike the case as a whole, the facts regarding the “analytical gap” issue luckily are not complicated.

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