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Court of Appeals to Review New Expert-Testimony Requirement for Medical Malpractice Defendants Asserting “Empty Chair” Defense

By: Derek Stikeleather

Although it is well-established Maryland law that a medical negligence plaintiff must support her claim with expert testimony, the Court of Special Appeals recently issued the first Maryland appellate decision to hold that defendants have the same obligation when asserting an “empty chair” defense. Reiss v. Am. Radiology Servs., LLC, 241 Md. App. 316 (2019). The well-established “empty chair” defense asserts that a non-party’s negligence caused the alleged injury.[i] Under Reiss, those asserting the defense now must elicit “expert testimony, to a reasonable degree of medical probability, that the non-party breached the standard of care.”[ii]

Although the rule announced in Reiss is relatively straightforward, the holding’s full implications remain unclear for litigants in medical negligence cases. The Court of Appeals may address these issues on February 6 at oral argument in Reiss. The court can resolve an important unanswered question: Can defendants elicit the testimony from a properly qualified plaintiff’s expert? The Court of Special Appeals’ reasoning in Reiss and existing Maryland law should allow it. Read More…

Choosing the appropriate standard of review, defining ambiguity, and interpreting a promissory note – Credible Behavioral Health, Inc. v. Johnson, 466 Md. 380 (2019).

By Brad McCullough

The Court of Appeals has once again shown that the importance of a case’s legal issues, and not the amount in controversy, drives its decision whether to review a case. In a collection action that started in the District Court of Maryland, and then appealed to the Circuit Court for Montgomery County, the Court of Appeals addressed the appropriate standard of appellate review a circuit court should use when reviewing an appeal on the record from the District Court. The Court also discussed and applied fundamental principles of contract interpretation. In Credible Behavioral Health, Inc. v. Johnson, 466 Md. 380 (2019), in an opinion authored by Judge Clayton Greene, Jr., the Court held that, when sitting as an appellate court, a circuit court reviews the District Court’s factual findings under the clearly erroneous standard, but reviews legal conclusions de novo. That portion of the Court’s opinion is unremarkable. The Court also reminded that “the interpretation or construction of a contract is a legal determination subject to de novo review,” explaining that contracts should be interpreted as a whole, reading separate provisions harmoniously, and striving to do so “in accordance with common sense.” Id. at 392, 395, 396 (latter internal quotation marks omitted and citations omitted). This portion of the Court’s opinion, on the other hand, may help inform the bar about the Court’s attitude toward contract interpretation.     Read More…

Breaking News: The Sky Is Falling, and, According to Washington Post v. McManus, So Was First Amendment Protection Under Maryland’s Online Electioneering Transparency and Accountability Act

By Alan Sternstein

New York Times v. Sullivan, a jurisprudential monument to freedom of the press, confirmed the core role of the press under the First Amendment “‘to secure ‘the widest possible dissemination of information,’” in order “‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”  376 U.S. 254, 266, 269 (1964).  Ironic and disappointing it is that the Washington Post, a pillar of the press, would lead the charge among press interests to invalidate Maryland laws requiring certain online platforms to disclose and report the sources and dollar amounts of online, not printed, political advertising.  It did so, moreover, making dubious claims that requiring such disclosures is a material infringement on editorial control and judgment, compels political messages, and imposes, on account of related recordkeeping requirements, an unacceptable burden on press operations.  Accepting these contentions, the Fourth Circuit’s recent decision in Washington Post v. McManus, No. 19-1132 (4th Cir. decided Dec. 6, 2019) (“Washington Post”),[1] invalidated Maryland’s Online Electioneering Transparency and Accountability Act (“Act”), codified at Md. Code Ann., Elec. Law § 13-405.  Notably, none of the plaintiffs in Washington Post or any of the amici supporting them was a person who sought or planned to engage in online political advertising or an organization supported by such persons. Read More…

Bubba Gump reminds us that quasi-contract is not an equitable claim and is not available where a real contract exists

By Brad McCullough

When lawyers bring lawsuits alleging a breach of contract, they often include claims for unjust enrichment. As the Court of Special Appeals recently explained, however, those efforts are often doomed to failure. In AAC HP Realty, LLC v. Bubba Gump Shrimp Co. Restaurants, Inc., __ Md. App. __ (Oct. 31, 2019), in an opinion authored by Judge Kevin Arthur, the Court reminded the bar of two points that pertain to unjust enrichment. The first is “the general rule that unjust enrichment is unavailable when the parties have an enforceable contract.” Slip Op. at 5. And the second is that an unjust enrichment claim seeking a money judgment is not an equitable claim (despite a widespread mistaken belief to the contrary), but is instead a quasi-contractual claim that is an action at law. Id. at 8 n.5.

Bubba Gump is a seafood restaurant in Baltimore’s Harborplace. It leases space from AAC, pursuant to a lease that obligates Bubba Gump to pay monthly rent, “without deduction or set-off.” Id. at 2. The lease requires AAC to maintain the common areas, which the lease calls “Joint Use Areas,” and to keep those areas in “good order and repair.” Read More…

Say what you mean and mean what you say

By Karen Federman Henry

Energetic discovery disputes during litigation occur frequently, frustrating the parties, their attorneys, and the judges who rule on the disputes along the way.  When the violations are exceptionally egregious, sanctions may be imposed ranging from new deadlines for compliance to dismissal of the lawsuit in its entirety.  Recently, the Court of Special Appeals reversed the trial court’s dismissal of a case based on perceived discovery violations in Colvin v. Eaton Corp., No. CSA-REG-2103-2016 (Oct. 4, 2019).  The reversal reflected the importance of clear communication, both in the details of a discovery order and from the attorneys representing a party when there are changes during litigation. Read More…

Harford County v. Maryland Reclamation Associates: A $45 Million Lesson on the Running of Statutes of Limitation

By Alan B. Sternstein

Maryland Reclamation Associates (“MRA”) purchased 62 acres of land in Harford County, with the intention of constructing and operating a rubble landfill on the parcel. Harford County thereafter enacted a series of zoning ordinances and made administrative rulings singularly aimed at precluding the parcel’s use for that purpose. The administrative and judicial review proceedings the controversy engendered have lasted some 20 years, so far, and have included four appeals to the Court of Appeals. In MRA’s last administrative effort to save its plans from the dumps, the Harford County Board of Appeals (“Board of Appeals”) affirmed a lower level administrative ruling denying MRA’s request for variances from the ordinances that would have permitted the landfill. The Board of Appeals did so by a unanimous board vote on June 5, 2007. In the Court of Appeals’ fourth decision, on March 11, 2010, the court affirmed the Board’s denial. Maryland Reclamation Assocs. v. Harford C’ty, 414 Md. 1, 994 A.2d 842 (2010) (“MRA IV”).

On February 19, 2013, MRA filed an action in the Circuit Court for Harford County, alleging that the County’s actions constituted a regulatory taking, in violation of the Maryland Constitution and the Maryland Declaration of Rights. The Circuit Court declined to dismiss the action as time barred pursuant to Maryland’s three-year general statute of limitations for civil actions. Md. Code Ann., Cts. & Jud. Proc. § 5-101. After a jury trial, the Circuit Court entered judgment for MRA in the amount of $45,420,076, in April 2018. The Court of Special Appeals, in Harford C’ty v. Maryland Reclamation Assocs., No. 788, September Term, 2018 (Md. App. decided Aug. 1, 2019) (“MRA V”), vacated MRA’s judgment and remanded the case for entry of judgment in the County’s favor. Read More…

The Court of Appeals Continues Defining the Fourth Amendment Implications of the Odor of Marijuana in a Post-Decriminalization Maryland

By John R. Grimm

In 2014, the General Assembly decriminalized possession of small amounts of  marijuana; rather than being a crime, possessing less than 10 grams of marijuana is now a civil offense punishable by a fine.[1]  Courts have been grappling with the effects of this change ever since.  Most notably, since the possession of marijuana is no longer categorically a crime, courts have had to clarify the rules for whether the odor of marijuana still constitutes probable cause sufficient to justify a search or arrest.  Several recent Court of Appeals decisions define the contours of the Fourth Amendment with respect to the odor of marijuana in a post-decriminalization world, and a recent cert grant seems poised to confirm Fourth Amendment limits on marijuana-related arrests. Read More…

Court of Special Appeals Endorses Absolute Immunity for Administrative Adjudicators

By Peter Sheehan, Guest Contributor[i]

On June 26, 2019 the Court of Special Appeals published a scholarly 110-page opinion on an issue of first impression in Maryland: whether administrative adjudicators and prosecutors are entitled to absolute immunity.  Bd. of Physicians v. Geier, 241 Md. App. 429 (2019).  In Geier, the court held that members of the Maryland Board of Physicians were entitled to absolute quasi-judicial immunity for adjudicative and prosecutorial acts and, as a result, the Board itself was entitled to immunity.  (The case previously had been in the Court of Special Appeals in 2015 (Geier I) and the Court of Appeals in 2017 (Geier II), but the procedural context of those appeals did not present an opportunity for the courts to resolve the absolute immunity question.)  In the simplest of terms, the case arose out of a public cease and desist order issued by the Board in 2012.  The plaintiffs, a physician and his family, sued the Board and numerous Board personnel, alleging federal constitutional claims under Section 1983 and state common law claims under the Maryland Tort Claims Act.  After a series of perceived discovery failures, the trial court ordered default as to the liability of all defendants and then, following a bench trial on damages, awarded the plaintiffs $1.25 million in compensatory damages, $1.25 million in punitive damages, and $2.4 million in attorneys’ fees.  Id. at 449.  The trial court, which itself issued a 112-page memorandum opinion, was not persuaded by federal case law recognizing and applying absolute quasi-judicial immunity, and it considered Section 5-715(b) of the Courts and Judicial Proceedings Article, which grants the Board and its agents qualified immunity for actions taken without malice, to be at odds with the principle of absolute quasi-judicial immunity.  Id. at 467.  Ultimately, the trial court found that multiple defendants had acted with malice.  Id. Read More…

Maryland Court of Appeals Criminal Cases by the Numbers, 2018 Term

By Steve Klepper (Twitter: @MDAppeal)

For the most recent Court of Appeals term, which ran from September 1, 2018 through August 31, 2019, I began tracking the Court’s merits docket across a number of categories. The Court’s criminal docket offers an interesting data set, because the State of Maryland is a party to every case, and the Office of the Public Defender (OPD) represents about 60% of defendants.

Going by bottom-line judgments, the State prevailed approximately half the time, maybe more, depending on how you count them. Read More…

Some Things Never Change

By Karen Federman Henry

In the words of Yogi Berra, “It’s like déjà vu all over again.”  That thought came to mind when reading the Court of Appeals’ decision in Board of County Commissioners of Washington County v. Perennial Solar, LLC, Sept. Term, 2018, No. 66 (filed July 15, 2019).  In the course of concluding that the Public Service Commission (PSC) regulates solar systems—leaving local governments unable to impose zoning restrictions and procedures on them—the Court sounded much like it did in 1990 when addressing high-voltage overhead transmission power lines in Howard County v. Pepco, 319 Md. 511 (1990). Read More…