Court of Special Appeals sails uncharted waters of FDCA preemption right into monsters of Greek mythology
In McCormick v. Medtronic, Inc., Ct. of Spec. App. Md., No. 670, Sept. Term 2013 (Oct. 6, 2014), the Court of Special Appeals recently decided a preemption issue that is percolating up through courts around the country: the extent to which federal law preempts state claims for personal injuries resulting from “off-label” promotion of a medical device. Most of the decisions that have come out so far on this question have been issued by federal district courts; the CSA’s opinion was one of the first appellate decisions to tackle it. Given the careful and thoughtful treatment the CSA gave the issue, McCormick likely will be an influential decision as more appellate courts weigh in on this question. As noted below, at one point the Court compared express and implied preemption to Scylla and Charybdis, two monsters from Greek mythology – perhaps a somewhat overblown analogy, but, for those of us who appreciate the ancient myths and find preemption analysis sometimes a bit dry, the allusion was a welcome addition to the opinion.
Raynor v. Maryland: Shades of, or for, Privacy Invasions to Come
The recent decision of the Court of Appeals in Raynor v. Maryland, No. 69, September Term 2012, is laden with issues and potential issues bearing on the scope of individual privacy from state intrusion. Correctly or incorrectly, and depending on your viewpoint (for the reader’s personal sensitivities about privacy will likely affect his or her appraisal of the Court’s decision), the Court addressed some of these issues, missed at least acknowledging others, and left still others, appropriately, for another day.[1]
Kulbicki v. State Dodges Due-Process Issues, Rules on Grounds That Weren’t Briefed
By Brad McCullough,
Last September, I previewed two cases that had the potential to be the Court of Appeals’ “next big case.” One of them was Kulbicki v. State, a case that demonstrates how oral argument can dramatically shape a case. In 1993, James Kulbicki was a 36-year-old married police officer with a 22-year-old mistress. After the mistress’s dead body was found with a bullet wound to the head, Kulbicki was convicted of murdering her. The prosecution’s case featured several expert witnesses, one who testified as an expert in comparative bullet-lead analysis, or “CBLA,” and another who testified as an expert in firearms identification. The Court of Special Appeals affirmed Kulbicki’s convictions and the Court of Appeals denied his petition for writ of certiorari. Kulbicki v. State, 102 Md. App. 376 (1995). Eleven years later, in Clemons v. State, 392 Md. 339 (2006), the Court of Appeals held that the conclusory aspects of CBLA are not admissible under the Frye-Reed test. Kulbicki also learned that the firearms identification expert had lied about his qualifications and that much of his trial testimony was simply false. Armed with this new information, Kulbicki sought post-conviction relief, but the circuit court denied his petition and the Court of Special Appeals affirmed.
The Wire in the (Fourth) Circuit: Civil Rights Claims Proceed Against Police Who Inspired David Simon Characters
On September 24, the U.S. Court of Appeals for the Fourth Circuit issued an opinion in Owens v. Baltimore City State’s Attorney’s Office et al., largely vacating a lower court’s dismissal of a 42 U.S.C. § 1983 action brought by James Owens seeking damages for wrongful conduct by Baltimore City police officers and an assistant state’s attorney that, Owens alleges, resulted in his spending more than two decades in prison for a rape and murder he didn’t commit. If Owens can prove his allegations of intentional suppression of exculpatory evidence by police, it will be a tremendous black eye for the Baltimore City Police Department and perhaps in particular for Jay Landsman, a former BCPD detective sergeant who lent his name to a character in HBO’s The Wire and who also acted in that series.
Obamacare on Appeal: Statutory Construction of This Politically Charged Question Will Inevitably Be Called Judicial Activism
In June, I wrote here that law professors should use the Supreme Court’s reversal of a Fourth Circuit opinion (CTS Corp. v. Waldburger) as their case study to teach the complexity of statutory construction. But I fear that a subsequent pair of conflicting, high-profile opinions in the D.C. Circuit and Fourth Circuit construing the Patient Protection and Affordable Care Act (“ACA”) is what many law professors will be using to teach statutory construction. Halbig v. Burwell, No. 14-5018 (D.C. Cir. July 22, 2014), rehearing en banc granted (Sep. 4, 2014), and King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014), are attractive as important cases that present a pure question of statutory construction, but using them to teach statutory construction runs the risk that students will see statutory construction as a mere euphemism for partisan “judicial activism.” The opinions are best used to instead explore the precarious role of appellate judges in resolving politically charged controversies.
Let Freedom Ring… By Respecting Religion
This week brings with it events worthy of celebration and remembrance. The “Star Spangled Banner” celebrates its 200th birthday, while we again honor those who lost their lives so tragically on September 11, 2001. Each milestone sparks patriotism and appreciation for the foundation upon which this country rests — the protection of a number of freedoms and the separation of powers to ensure adequate checks and balances among the executive, legislative, and judicial branches of government.
Along with this separation of powers, the United States has taken pride in maintaining the separation of church and state as a means of avoiding the religious persecution that the early colonists sought to leave behind. Despite the effort, periodic blurring of the line occurs, as demonstrated in the debate about prayer in the schools, the refusal of health insurance coverage for birth control, displays of the Ten Commandments on government-owned property, and even whether the Pledge of Allegiance should remove the reference to God.
Two Court of Appeals Judges Indicate Support for Permitting Attorneys to “Specialize” in Fields
By Michael Wein
Two judges of the Maryland Court of Appeals, in a little-recognized and short concurring and dissenting opinion, have indicated they may be open to attorneys using the word “specialty” or similar words when describing their professional qualifications, including in advertising. In the case of Attorney Grievance Comm’n v. Zhang, Judges McDonald and Adkins noted their disagreement with Judge Watts’ majority opinion on two issues: They felt that the attorney’s actions justified not a disbarment but an indefinite suspension, and, more interestingly for the purposes of this piece, that an attorney’s use of the words “specialty,” “specializing,” or similar iterations in describing his or her practice should not be considered a potentially sanctionable offense under Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 7.4(a).
The odds that the full Fourth Circuit will review the good faith of pre-2012 warrantless GPS tracking
In United States v. Stephens, a divided panel of the Fourth Circuit affirmed a holding of the U.S. District Court for the District of Maryland that the good-faith exception to the exclusionary rule applied to police officers’ concededly unconstitutional warrantless use of a GPS device to track a suspect and obtain evidence in furtherance of his prosecution. Judge Dennis Shedd, an appointee of President George W. Bush, wrote the majority opinion, joined by Senior Judge Clyde Hamilton, an appointee of President George H.W. Bush. An appointee of President Obama, Judge Stephanie Thacker, wrote a dissenting opinion.
A petition for rehearing en banc almost certainly will be filed by the defendant. The question then will become whether the six Obama appointees who are active judges on the Court — and at least two other judges appointed by prior presidents — will choose this Fourth Amendment good-faith case as one to plant their flag in en banc. As I explain below, I doubt that this case will result in a very rare grant of rehearing en banc.
Corralling National Federation of Independent Business v. Sebelius
In the U.S. Supreme Court’s Affordable Care Act case, National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) (“NFIB”), five justices of the Court expressed their concurrence in the view, stated most broadly, that the liberty of persons limits the scope of Congressional power under the Commerce Clause of the United States Constitution. Chief Justice Roberts articulated this view in a portion of his opinion for the Court, stating that, “Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product,” id. at 2586, and that, “Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation and – under the Government’s theory – empower Congress to make those decisions for him,” id. at 2587. The justices dissenting from the opinion’s decision upholding a federal individual mandate for health insurance as a valid exercise of Congress’s power to tax, Justices Scalia, Kennedy, Thomas and Alito, expressed a broader view, stating that, “Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct …,” id. at 2643 (emphasis added). According to the dissenting justices, “If Congress can reach out and command even those further removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws … spare neither sex nor age, nor high nor low, nor sacred nor profane.’” Id. at 2646 (quoting The Federalist No. 33, p. 202 (C. Rossiter ed. 1961)).
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