Archive | November 2022

November 2022 Maryland Certiorari Grants

On Friday afternoon, the Court of Appeals of Maryland granted review in two criminal and three civil appeals. The certiorari grants, with links to the Court of Special Appeals opinions under review, are below.

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Did the Frankel Decision Create an Expert Affidavit Requirement for Rule 5-702 Motions?

By Derek Stikeleather

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.

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The Courts They Are a-Changin’

By John Grimm

Tuesday was an election night full of historic firsts for Maryland—including the first Black governor[1] and attorney general,[2] the first South Asian woman lieutenant governor,[3] and the first woman to win statewide state office independently.[4] 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.

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