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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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A haircut as destruction or concealment of evidence or consciousness of guilt—part two.

By Brad McCullough

Last fall, I wrote a post asking if a haircut could support a jury instruction regarding destruction or concealment of evidence. (October 25, 2021, “When can a haircut amount to destruction or concealment of evidence?”)  In Rainey v. State, 252 Md. App. 578 (2021), the defendant was charged with murder. At the time of the killing, he had long dreadlocks, but when he was arrested, his hair was close-cropped. The Court of Special Appeals held that the evidence at trial supported an inference that Rainey’s drastic haircut showed a consciousness of guilt. The intermediate appellate court also held that the trial court did not abuse its discretion in giving the pattern jury instruction dealing with destruction or concealment of evidence. The Court of Appeals granted certiorari and affirmed the intermediate appellate court. Rainey v. State, No. 54, Sept. Term, 2021.

Here are the facts. The victim was found lying dead in a Baltimore alley, with multiple gunshot wounds. A witness saw two men arguing, one of whom wore his hair in long dreadlocks. The man with dreadlocks walked away. A few moments later, the witness heard several booms and saw the man with the dreadlocks with his arm raised and the other man lying in the alley. The man lying in the alley died. The man with the dreadlocks ran off. Citiwatch and surveillance video also captured these events.

Six days later, the police showed the witness a photo array of men wearing shoulder-length dreadlocks. She selected a photo of Rainey, noting that the man in the photo looked like the shooter. A month later, she saw the shooter on the street, but he now had a very short haircut. She called the police and the man was arrested. The witness “had lived in the neighborhood for several years” and “was familiar with the illicit drug trade occurring within the neighborhood and [Rainey’s] specific involvement in the local drug trade for the past twelve to eighteen months.” Slip Op. at 4. At trial, she identified Rainey as the person with dreadlocks in the video. She also testified that she was certain he was the shooter. Id. at 6. She further “testified that between the shooting and the arrest, [Rainey] cut his shoulder-length dreadlocks to a short, close-cropped hairstyle.” Id. (footnote omitted).

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Appellate Standing in Maryland’s Mail-In Ballot Dispute

By Steve Klepper (Twitter: @MDAppeal)

On Friday, the Maryland Court of Appeals granted the State Board of Elections’ petition for immediate review of the challenge by Delegate Daniel Cox to the circuit court order allowing the canvassing of mail-in ballots to begin on October 1 instead of November 9. The Court of Appeals expedited the appeal, with both sides’ briefs due Tuesday, and oral argument on Friday, October 7.

The questions presented are:

In re: Petition for Emergency Remedy by the Maryland State Board of Elections – Case No. 21, September Term, 2022
Issues – Election Law – 1) Did the trial court correctly rule that the remedy sought under Md. Code § 8-103(b)(1) of the Election Law (“E.L.”) article comports with the principle of separation of powers because the remedy, an adjustment to the electoral calendar, is a function routinely entrusted to the judicial branch? 2) Did the trial court correctly rule that the incoming volume of mail-in ballots and inadequate time frame in which to process them constitute “emergency circumstances” that “interfere with the electoral process” as those terms are used in E.L. § 8-103(b)(1)?

Election Law § 8-103(b)(1) provides, without elaboration: “If emergency circumstances, not constituting a declared state of emergency, interfere with the electoral process, the State Board or a local board, after conferring with the State Board, may petition a circuit court to take any action the court considers necessary to provide a remedy that is in the public interest and protects the integrity of the electoral process.”

The State Board’s petition notes that the trial court allowed Delegate Cox, the Republican nominee for governor, to intervene as a matter of discretion, not right. The State Board welcomed his participation. A footnote states: “Delegate Cox’s intervention in the case mooted any concerns or controversies regarding the justiciability of the one-party proceeding.”

I don’t see the concern about justiciability in the circuit court. The Maryland Constitution has no “case or controversy” clause, and the State Board did not petition under a statute, such as the Declaratory Judgment Act, that requires an actual controversy. Many matters are justiciable in circuit courts when no controversy exists. For example, circuit courts decide uncontested petitions for adult name changes and can even waive the requirement of publication that would give notice to anyone who might object.

On the other hand, although I may well be missing something, I have trouble seeing why Delegate Cox has standing to appeal. Appellate jurisdiction requires a notice of appeal filed by a person aggrieved by the order or judgment, under the usual principles of legal standing. See Buchwald v. Buchwald, 175 Md. 103, 114 (1938). Standing requires a wrong different in character and kind from that suffered by the public generally.

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Maryland Court of Appeals, in Irwin Industrial, Confirms Alternative Grounds for Summary Judgment, Typically Remain Unavailable to Argue in Appeals

By Michael Wein

The Court of Appeals’s recent decision in Irwin Industrial Tool Company v. Pifer (May 31, 2022, J. Watts) had as the main certiorari issue, on “[w]hether it was reversible error for the [Court of Special Appeals] to reverse the authenticity threshold applied by the Circuit Court for the admissibility of items purchased from the internet.”[i]  This encompassed about 36 pages of the 44-page unanimous decision authored by Judge Watts.  The case also featured the effective but tricky usage of demonstrative evidence at oral arguments, beginning at the 41st minute of the oral argument webcast.

However, Question Presented Two, on “[w]hether it was reversible error for the [Court of Special Appeals] to ignore the alternative grounds for summary judgment encompassed in the Circuit Court’s Order[,]” while only a few pages long, had important applications, beyond the case.  The ultimate decision confirms a reluctance by Maryland appellate courts to decide issues for the first time on appeal, especially when the trial court declines to clearly rest their decision on these alternative grounds.

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SCOTUS 9-0 on arbitration waiver standard.

By Brad McCullough

Much attention is given to the chasm that often exists between the Supreme Court’s rival factions and the divergent views espoused by the Justices, particularly in controversial hot-button issues. (That chasm was especially wide, and that attention reached a fever pitch, over the past week.) But not all cases before the Supreme Court involve such bitter divisions. In late May, the Court reached a 9-0 decision that resolved a split among the circuits in a case involving the Federal Arbitration Act. In an opinion authored by Justice Kagan, the Court held that a party waives her right to arbitration if she acts inconsistently with that right, even in the absence of prejudice to the opposing party. Morgan v. Sundance, Inc., No. 21-328 (U.S. May 23, 2022).

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The Majority, Concurring, and “Controlling” Opinions in the Supreme Court’s Decision of New York State Rifle & Pistol Ass’n Inc. v. Bruen

By Michael Wein

Last week, two blockbuster United States Supreme Court decisions were issued in Bruen and Dobbs.  This Post discusses the first,  New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 2022 WL 2251305, (U.S. June 23, 2022), published last Thursday.  Bruen primarily involved whether and to what extent the Second Amendment applied to New York’s very strict requirements for qualified applicants to obtain a carry permit, for gun possession outside the home. 

The label “majority opinion” and written by the Court’s primary author may not be considered the “controlling” opinion by the other federal or state courts. As discussed and previously examined in a prior Blog Post from 2013, the “Marks Rule” from Marks v. United States, 430 U.S. 188 (1977), guides how to identify the actual holdings in a “split” decision with multiple opinions; this Post dates back to Maryland’s consideration of comparative negligence in Coleman, and described the non-obvious difficulty in simply assuming or accepting the label given to what’s listed as the “Majority” Opinion.[i]  The Blog Post noted,

This construction [in Coleman] would comport with the definition [under Marks] of what is a “majority” opinion—in particular, that any opinion that is the “broadest rule” that has a “majority” of the judges, is to be construed as the majority opinion.   The Supreme Court has shown some creativity in this regard [for example, such as]  McConnell v. FEC, 540 U.S. 93 (2003), in making fractured rulings on the constitutionality of the Bipartisan Campaign Reform Act of 2002, issued three majority opinions for the different sections of the legislation.

The Supreme Court has displayed creativity similiar to McConnell in the recent Bruen case, though unlike Coleman, it’s not on the incorrect label being given, but what’s actually the nuanced “controlling” decision on application.  Broadly speaking, there is a Majority Opinion and authorship on Bruen, by Justice Thomas, which is controlling on the Constitutional impact, but for right now, the effect is limited.   This is a bit opaque on first glance, but was also noticed by some news outlets such as the Washington Post, which wrote articles focused on the Justice Kavanaugh Concurrence, joined by Chief Justice Roberts.  

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Supreme Court limits relief from final judgments after appellate deadlines pass

By Derek M. Stikeleather

Maryland appellate practitioners have few options when clients need post-judgment relief but can no longer access an appellate court. But federal and state procedural rules still provide various, limited bases—and often more generous deadlines—for seeking relief from a court’s final judgment or order after the deadline for noticing an appeal has passed. Such rules are crucial—but different—in state and federal practice when, for whatever reasons, a litigant has not filed a timely notice of appeal. The Supreme Court recently addressed the issue in Kemp v. United States, construing Federal Rule of Civil Procedure 60(b). Kemp v. United States, No. 21-5726 (June 13, 2022).

Federal Rule 60(b) and the Kemp decision

Section (b) of Rule 60 covers every other reason for altering a final judgment or order, besides clerical mistakes, oversights, and omissions, which section (a) addresses. Rule 60(b)(1) allows a litigant to move to alter a final judgment “within a reasonable time”—but only within one year—after entry of judgment because of “mistake, inadvertence, surprise, or excusable neglect.” See Fed. R. Civ. P. 60(c)(1). Following five subsections that list various reasons for relief from a final judgment, Rule 60(b)(6) allows trial courts to re-open judgments for “any other reason that justifies relief” if the litigant moves “within a reasonable time.” Subsection (1), thus, gives litigants up to a full year, if reasonable, to seek amendment of a final judgment while subsection (6) allows such motions at any “reasonable time.” (Section (a) imposes no time limit.)

The controlling subsection of Rule 60(b) was crucial to the legal fate of Mr. Kemp, who was convicted of various federal crimes in 2011 and whose procedural odyssey captured the Supreme Court’s attention. He and seven codefendants appealed their convictions and sentences, but the Eleventh Circuit affirmed. Mr. Kemp did not appeal further, but two of his codefendants did, ultimately without success.

More than a year after his appeal ended—but within a year of the final judgment ending his codefendants’ appeal—Mr. Kemp moved the Florida federal trial court to vacate his sentence under Section 2255. The trial court erroneously found Mr. Kemp’s Section 2255 motion, which had to be filed within one year of the judgment of conviction becoming final, was untimely. Almost two years later, Mr. Kemp moved the same court to re-open his proceedings under Rule 60(b). The timeliness of the Rule 60(b) motion turned on whether the trial court’s erroneous dismissal of the Section 2255 motion (because finality ran from the co-defendants’ final judgment on appeal not Mr. Kemp’s) was a “mistake” under subsection (b)(1) or an “other reason that justifies relief” under subsection (b)(6).

The near-unanimous Supreme Court held that “a judge’s errors of law are indeed ‘mistake[s]’ under Rule 60(b)(1).” It affirmed the Eleventh Circuit’s holding that Mr. Kemp’s Rule 60 motion was untimely because it was controlled by subsection (1), which covers “mistake,” and not subsection (6)’s “any other reason that justifies relief.” Although the Court described subsection (6) as a “catchall,” it explained that it applies only when subsections (1) through (5) provide no basis for relief. Even then, only “extraordinary circumstances” merit reopening a final judgment. Mr. Kemp had tried to parse “mistake” to apply only to factual errors by someone other than the judge and not obvious legal errors, such as misreading Section 2255’s triggering date for the running of limitations. The Court held that “mistake” included any legal error by the judge and was not limited to “obvious” ones, as even the prevailing Government had argued.

Post-judgment relief in Maryland

Maryland has similar rules on post-judgment relief but with some crucial distinctions. First, in ordinary post-trial appellate practice, Maryland Rules 2-532 and 2-533 require parties to file any motions for JNOV or a new trial within ten days after entry of judgment. After bench trials, Rule 2-534 sets the same 10-day deadline for motions to alter or amend the judgment. (Mercifully, the federal rules committee recognized the 10-day deadline’s deleterious impact on the quality of post-trial briefing and revised Federal Rules 52 and 59 to allow 28 days for such motions.)

Second, Rule 2-535 provides various procedural options under the trial court’s “Revisory power” to change its judgment even after the 10-day deadline for JNOV and new trial motions has passed and—in some instances—even after the 30-day deadline to notice an appeal has passed. For jury trials, the parties have 30 days after entry of judgment to seek any judgment-altering relief that would be available under Rule 2-534. Md. R. 2-535(a). The parties also have 30 days to seek “a new trial on the ground of newly-discovered evidence that could not have been discovered by due diligence in time to move for a new trial” under Rule 2-533. Md. R. 2-535(c) (emphasis added).

When more than 30 days have passed since the entry of judgment, Rule 2-535 limits Maryland litigants to even fewer options to seek judgment-altering relief from the trial court. These can be the motions of last resort if no appeal was timely filed. Unlike parties in federal court, state-court parties may move “at any time” for the trial court to “exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity.” Md. R. 2-535(b) (emphasis added). Recall that Mr. Kemp had only a year, and only if reasonably timed, to move on the grounds of “mistake” under Federal Rule 60(b)(1). His Rule 60(b) motion would not have been per se untimely in Maryland state court under Rule 2-535(b). Similarly, a Maryland trial court may sua sponte or on motion of any party correct “clerical mistakes in judgments, orders, or other parts of the record.” Md. R. 2-535(d) (emphasis added). As in federal court, if an appeal has been docketed, clerical mistakes can be corrected only “with leave of the appellate court.” Id.

Of course, the best avenue for post-judgment relief is a timely appeal if timely post-trial motions have been denied. If that window has closed, procedural options are limited. But not all is necessarily lost.

The Skirts Requirement: Dress Code Gender Discrimination in Charter Schools

By Megan E. Coleman

On June 14, 2022, the Fourth Circuit published Bonnie Peltier v. Charter Day School, Inc., a 10-to-6 en banc opinion authored by Senior Judge Keenan. When a North Carolina charter school imposed a dress code requiring that girls wear skirts to school, the full court signed on to tackle two issues related to gender equality in the schools. First, are charter schools “state actors” that must provide equal protection to its students under the constitution? Second, are dress codes categorically exempt from Title IX’s prohibition against gender discrimination?

On its face, the questions seem innocuous. But under the surface, this 103-page slip opinion quickly unveils a raucous caucus of diverging views on gender stereotypes, debating whether the dress code exemplifies chivalry or just mere chauvinism.

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Federal Judicial Conference Unanimously Approves Proposed Rule 702 Amendments

By Derek Stikeleather

Daubert’s evolution passed a major milestone last week, one that should affect the admissibility of expert testimony in Maryland’s state and federal trial courts going forward. On June 7, the Judicial Conference Committee on Rules of Practice and Procedure unanimously approved the proposed amendments to Federal Rule of Evidence 702. Of course, Maryland state courts follow Md. Rule 5-702. But the Court of Appeals of Maryland, in 2020, formally adopted the Daubert standard, which applies FRE 702, for construing Rule 5-702. Rochkind v. Stevenson, 471 Md. 1 (2020). This leaves no room to interpret the state rule for admitting expert testimony any differently than the federal rule.

If approved by Congress (after review by the Judicial Conference and U.S. Supreme Court), the amended Rule will become effective on December 1, 2023. It states:

Rule 702. Testimony by expert witnesses.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent has demonstrated by a preponderance of the evidence that:

a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b) the testimony is based on sufficient facts or data;

c) the testimony is the product of reliable principles and methods; and

d) the expert has reliably applied the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

The new clause requiring each of Rule 702’s four reliability factors to be “demonstrated by a preponderance of the evidence” is not a substantive change but rather a point of emphasis. It directly targets the recurring error of judges who construe challenges to the sufficiency of the expert’s facts or data or the reliability of the expert’s case-specific application of principles and methods as jury questions that merely “go to the weight of the evidence.” Under the rule, this has always been a threshold question for the judge to decide as gatekeeper. Except judges have too often approached their gatekeeping role with excessive leniency. (Of course, other judges could be far too strict as gatekeepers under Rule 702, but the rules committee has not identified this as a problem.)

Last year, the Fourth Circuit Court of Appeals handed down a precedential opinion applying the proposed revised text and emphasizing that trial judges must ensure that each element of Rule 702 is met by a preponderance of the evidence. See Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021). The Sardis opinion cautions trial judges that, under Daubert and Rule 702, they cannot delegate to jurors the judicial inquiry into whether Rule 702’s subsections (a) through (d) are all satisfied.

Going forward, challenges to an expert’s testimony should “go to the weight of the evidence” and not admissibility only after the trial judge has found that the testimony is probably “based on sufficient facts or data,” probably “the product of reliable principles and methods,” and probably “a reliable application of the principles and methods to the facts of the case.” Well-credentialed experts cannot bypass judicial scrutiny by merely characterizing their facts and data as sufficient and their methodology as reliable. The proponent of the expert testimony remains bound to show the trial judge that their testimony is likely to be reliable and helpful to the jury.

Issue Preservation – Concerned Citizens of Cloverly is a reminder to not let your best appellate issues be needles in trial haystacks

By Diane E. Feuerherd

The Court of Special Appeals’ recent decision in Concerned Citizens of Cloverly v. Montgomery County Planning Board, Case No. 620, Sept. Term 2021 (May 2, 2022)[i] provides a helpful example, if not cautionary tale, of issue preservation. It is well-known that Maryland Rule 8-131(a) lays out the scope of appellate review and provides that other than jurisdiction, “the appellate court will not decide any other issue not raised in or decided by the trial court . . . .” (emphasis added). But what does “raised in” mean and how much airtime do you need to give an issue in the trial court (or in the case of Concerned Citizens, the administrative agency) for it to be “raised” and preserved for appellate review?   

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