February 2020 Maryland Certiorari Grants

The Maryland Court of Appeals today posted grants in four cases. They are listed below, with questions presented and links to the Court of Special Appeals opinions under review. Read More…

Nine nominated for vacancy on Court of Special Appeals

On Wednesday, the Appellate Courts Judicial Nominating Commission nominated nine lawyers and judges for consideration by the Governor for the vacant at-large seat on the Court of Special Appeals: Read More…

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…

January 2020 Maryland Certiorari Grants

Today, the Maryland Court of Appeals granted certiorari in one civil case and three criminal cases, including one where the State claims that a criminal defendant entered into a collusive marriage to obstruct justice and tamper with a witness.

Read More…

Seventeen apply for At-Large Vacancy on the Court of Special Appeals

By Diane E. Feuerherd

This afternoon, the Administrative Office of the Courts released the list of seventeen applicants seeking to fill the open at-large seat on the Court of Special Appeals:

Honorable Krystal Quinn Alves, Circuit Court for Prince George’s County
Russell Paul Butler, Maryland Crime Victims’ Resource Center, Inc. in Upper Marlboro
Kurt James Fischer, Venable LLP in Towson
Rickey Nelson Jones, Law Offices of Rickey Nelson Jones in Baltimore
Steven Michael Klepper, Kramon & Graham in Baltimore
James Bradford McCullough, Lerch, Early & Brewer in Bethesda
Honorable Erik Howard Nyce, District Court of Maryland for Prince George’s County
Michael Patrick Redmond, Chief Solicitor of the Baltimore City Law Department
Eldridge Eugene Rice, Jr., from Randallstown
Steven Lee Tiedemann, Powell Recovery Center, Inc. in Baltimore
Tara Sky Woodward, Bradley Arant Boult & Cummings in Washington, D.C.
Terrence Mark Ranko Zic, Whiteford Taylor Preston in Rockville
**Honorable Judith Claibourne Ensor, Circuit Court for Baltimore County
**Honorable Lawrence Paul Fletcher-Hill, Circuit Court for Baltimore City
**Brian Scott Kleinbord, Office of the State’s Attorney for Montgomery County
**Rachel Theora McGuckian, Miles & Stockbridge in Rockville
**Phillip Robert Zuber, Sasscer Clagett & Bucher in Upper Marlboro

This vacancy was created by the recent retirement of Judge Alexander Wright, Jr. The list includes four trial judges and thirteen attorneys (including two Blog Editors, Steve Klepper and Brad McCullough, neither of whom participated in the preparation or publication of this post).  The last five, marked by a double asterisk (**), are pool candidates, having received the Appellate Courts Nominating Commission’s nomination for a prior At-Large Court of Special Appeals vacancy within the past two years; pool candidates receive automatic consideration by the Governor. The remaining applicants will be interviewed by the commission, on February 4 and 5, 2020.

Live Webcast of the En Banc Fourth Circuit’s Oral Arguments in the Emoluments Case to Begin at 9 a.m. Today

Earlier this week, Blog Editor Derek Stikeleather wrote of In re Trump, the emoluments case brought against President Trump by the State of Maryland and the District of Columbia. Due to public interest, the oral arguments will be webcast live (audio only), starting at 9 a.m. this morning.

December 2019 Maryland Certiorari Grants

Happy holidays from the Maryland Appellate Blog! Yesterday, the Court of Appeals granted review in three criminal cases and five civil cases. One of the civil cases, MIA v. State Farm Mutual Auto Insurance Co., centers on uninsured motorist coverage and will be consolidated with a certified question raising the same issue. Read More…