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Maryland Abandons the Frye-Reed Standard for Admissibility of Expert Testimony and Adopts Daubert

(SEPTEMBER 25, 2020) -  Over 40 years ago, in the case of Reed v. State, Maryland adopted the general acceptance standard for admitting expert testimony rooted in novel scientific principles.  283 Md. 374 (1978).  Under this standard, expert testimony rooted in novel scientific principles was admissible only if the basis of the opinion was generally accepted as reliable within the relevant scientific community.  This standard was commonly called the Frye-Reed standard.  In the years that followed, and with the adoption of Maryland Rule 5-702, this standard morphed into what was known as the “Frye-Reed Plus” standard.  Under this morphed standard, the trial court was tasked with: (1) determining whether the expert’s principles and methods were generally accepted, and then (2) assessing whether the expert’s testimony had an adequate supply of data and applied a reliable methodology.        

In Rochkind v. Stevenson, the Maryland Court of Appeals abandoned the Frye-Reed standard in favor of the Daubert standard for admissibility of expert testimony. 2020 Md. LEXIS 414 (August 28, 2020).  Under the Daubert standard, an expert’s testimony is admissible only if it is sufficiently reliable. To assist the trial courts in assessing the reliability of expert testimony, the Court adopted ten non-exhaustive factors:

(1) Tested/testable—whether the theory or technique can be (and has been) tested;
(2) Peer review—whether the theory or technique has been subjected to peer review and publication;
(3) Error rate—whether the technique has a known or potential rate of error;
(4) Controls—the existence and maintenance of standards and controls;
(5) General acceptance—whether the theory or technique is generally accepted;
(6) Independence—whether the experts are testifying related to research conducted independent of litigation, or whether they developed their opinions expressly for purposes of testifying;
(7) Analytical gap—whether the expert unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
(8) Differential diagnoses—whether the expert has adequately accounted for obvious alternative explanations;
(9) Diligence—whether the expert is being as careful as he or she would be in his or her regular professional work outside of paid litigation consulting;
(10) Reliable field—whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.
Id. at *48.

The extent to which this change in jurisprudence will have a practical impact on the admissibility of expert testimony is widely debated and remains to be seen.  The Court of Appeals was “[not] convinced that adopting this standard in Maryland will upend Maryland evidence law.” Id. at *46.  Regardless, the Rochkind opinion provides clear guidance as to what factors litigants, attorneys, and experts, should consider in assessing the admissibility of expert testimony. - (DeCaro, Doran, Siciliano, Gallagher & DeBlasis)

 

New Jersey Judge Denies Insurer's Motion to Dismiss COVID-19 Bi Claim

(SEPTEMBER 29, 2020) - Since the outbreak of the COVID-19 pandemic, most insurers throughout the country have denied business interruption (BI) claims received from their policy holders based on the economic losses they have suffered as a result of the virus. Many insurers rely on specific language contained in their policies that exclude claims arising from losses due to viruses, bacteria or "contamination". Even when such precise language is not included in the policies, insurance carriers throughout the industry have denied the claims based on their contentions that the claimed losses did not result from "property damage" because there was no physical damage to the structures or covered property.

Despite billions of dollars in losses claimed by businesses, the public sentiment supporting coverage and the outcry of private citizens, insurance regulators and many politicians, the demands that the government intercede to mandate that insurers cover these claims have largely been unsuccessful. Moreover, although litigation has been threatened throughout the nation, relatively few lawsuits have been filed in proportion to the number of potential claims. In the suits that have been filed, the presiding judges in all but a couple of cases have granted the defendant insurers' motions to dismiss these legal actions. Most of the decisions support the insurers' position that the claims are not covered because of the absence of some physical damage to the covered property.

In a suit pending in the Superior Court of New Jersey, Bergen County, the Hon. Michael N. Beukas recently denied Franklin Mutual Insurance Company's motion to dismiss a lawsuit filed by Optical Services USA. In that case, Optical conceded that its business did not suffer "physical" damage i.e. a material alteration or damage but asserted that it suffered business income losses as a result of the state's coronavirus quarantine and stay at home orders. During telephonic oral argument of Franklin Mutual's motion to dismiss conducted on August 13, 2020, Judge Beukas stated that "the term "physical" can mean more than material alteration or damage." Judge Beukas was receptive to Optical's claim that it suffered a covered physical loss due to Governor Murphy's Executive Orders and permitted the case to proceed. Significantly, Judge Beukas ruled that it is the insurer's burden to prove that the claim is not covered.

Judge Beukas' ruling is inconsistent with the rulings of many state and federal judges in other jurisdictions including Michigan, Texas, California, New York and the District of Columbia. In those cases, the jurists ruled that coverage is excluded unless the policy holder's losses derived from some tangible physical damage to property. Judge Beukas' decision is, however, consistent with another by the Hon. Stephen R. Bough of the United States District Court, Western District of Missouri issued in the class action suit, Studio 417 v. Cincinnati Ins. Co. Judge Bough denied Cincinnati's motion to dismiss filed pursuant to FRCP 12(b)(6). A motion under this statute seeks a dismissal based upon the defendant's claim that the complaint failed to state a cause of action upon which relief may be granted. In deciding such motions, the court is constrained to accept all allegations set forth in the complaint as true. In the Studio 417 case, Judge Bough gave policy holders hope when he ruled that the complaint, on its face, sufficiently stated a claim that may have merit. Significantly, Judge Bough emphasized that the policy by Cincinnati Insurance Co. did not include a virus or bacteria exclusion. He noted that the policy holders contend that the subject policies were "all risk" policies that provided coverage for economic losses due to a covered "physical loss or physical damage" and that the policies did not define the terms "physical loss" or "physical damage". The Court was clearly receptive to the claimants' arguments that a physical loss may be different than physical damage. He also was receptive to the viability of a claim that the coronavirus was physically present on the covered property. Although Judge Bough did not rule Cincinnati is required to cover the claimed losses in that case, he permitted the case to proceed.

Although Judge Beukas' ruling provides hope and optimism for policy holders who have suffered business interruption losses as a result of executive orders, business owners should appreciate that his ruling may not have the precedential effect they hope for. In the Optical case, Franklin Mutual Insurance Company's counsel apparently conceded that the virus exclusion in its policy does not apply. This contention is seemingly in contrast with the positions taken by most other insurers who have successfully argued that the unambiguous language of their policy exclusions must be strictly interpreted and enforced. That fact notwithstanding, discovery in the suit will proceed and the case will continue with discovery and possibly a trial. These facts potentially open the door for millions of business owners to seek recovery for their losses.

Questions concerning this publication, or the handling of COVID-19 claims should be directed to Kenneth S. Merber, Esq. who is a partner of Gallo Vitucci Klar, LLP and who is leading GVK's COVID-19 Response Team at 201-683-7100 ext. 106 or [email protected] - (Gallo Vitucci Klar LLP)

 

Newsflash: New FMCSA Hours of Service Regulations Go Into Effect On September 29, 2020

(SEPTEMBER 29, 2020) - The long awaited final Federal Motor Carrier Safety Administration (FMCSA) rule revising hours of service (HOS) regulations to provide greater flexibility for drivers subject to those rules, without adversely affecting safety, was published recently in the Federal Register. The final ruling can be found here, but below is a summary of what is involved.

FMCSA Hours Of Service Regulations


The FMCSA:

  1. Expands the short-haul exception to 150 air-miles (from 100 air-miles) and allows a 14-hour work shift (from a 12-hour work shift). The remaining requirements of the exception remain in effect. The exception relieves drivers from filling out logs and allows the use of time sheets.
  2. Expands the driving window during adverse driving conditions by up to an additional 2 hours;
  3. Requires a 30-minute break after 8 hours of driving time (instead of on-duty time) and allows an on-duty/not driving (in addition to off duty and sleeper berth) period to qualify as the required break; and
  4. Modifies the sleeper berth exception to allow a driver to meet the 10-hour minimum off-duty requirement by spending at least 7, rather than at least 8, hours of that period in the berth and a minimum off-duty period of at least 2 hours spent inside or outside of the berth, provided the two periods total at least 10 hours, and that neither qualifying period counts against the 14-hour driving window.

The new regulations go into effect on September 29, 2020.

As always, we will continue to monitor this update and provide additional information as it is disseminated. If you have questions, feel free to contact Gallagher Sharp LLP.

 

A Litigator's Guide to Handling a Jury Trial During a Pandemic

(SEPTEMBER 10, 2020) - A Themis member, attorney John Stiff of Stiff, Keith & Garcia, LLC recently conducted his first trial in the COVID-19 era in New Mexico, which was uniquely challenging.

In March 2020, our state vacated all in-person hearings and jury trials due to mounting concerns about COVID-19. In July, our highest court reversed course, proclaiming that the jury trial is the foundation of the American Judicial System and Justice Delayed is Justice Denied. Trial courts were to restart civil jury trials.

I was hired only a short time before trial after in-house counsel for the client left for greener pastures. Taking over a file that another lawyer has worked on is usually a challenge and this case was no different.

Court Rules & Sanctions During COVID-19

Our state’s Supreme Court promulgated how jury trials would be accomplished. Social distancing would be strictly enforced, with an order from the Trial Court that any violation would result in sanctions. At all times I had to keep six feet between me and anyone else, whether I was in the Court Room or in the hallway. Everyone had to wear a mask covering nose and mouth. Plexiglass separated the witness from the courtroom. Plexiglass would also surround the judge, the court reporter, and the bailiff. Lawyers would be separated from clients with strict instructions not to speak with the client directly. Instead, the Court directed that counsel use a computer to “chat” with the client and provided a keyboard and a monitor in front of the lawyer and the representative’s chair. Because of social distancing requirements, the number of people that could be in the Court Room was limited to 25. Once the Judge, Bailiff, Reporter and jury were counted, each party could have one lawyer in the trial and one client representative. Staff, co-counsel, and the public had to watch from a “Google Meets” link. The entire trial was broadcast over this media.

The Judge told the jury that the lawyers would be using their cell phones, and not to be offended if they saw a party or an attorney texting during the trial. The court also provided headsets that allowed counsel to speak directly with the client, similar to what an airline pilot might wear when speaking with the radio control tower. In a quiet courtroom, whispers can be easily overheard. When I tested this, my paralegal could hear my whisper from the Box. Not a good idea.

Choosing the Right Jury in a Pandemic

The trial started Friday morning. We had done a mock, so we had an idea of the type of jury we wanted. The Voir Dire took place in the largest room available in the courthouse, the jury orientation room. Tables were set up at the head of the room for the judge, the plaintiff’s counsel, and the defense counsel, along with the court reporter. Chairs for jurors were set 6 feet apart, 5 rows deep with 6 seats across. The panel seemed unhappy about appearing for trial, with one juror complaining that the Deputies on the first floor, who were providing security were not wearing their masks over their noses and mouths, and that they refused to do so when asked. The juror gave the name of the officer to the Judge and asked that she investigate the situation. Jurors used an elevator to get to the assigned courtroom but only one juror could use an elevator at a time.

Jury selection was hard. The court asked us not to question the jurors about any concerns about COVID-19 because the jurors should not be discouraged from serving. We were told not to ask questions if any of the panel were worried about being exposed and to stay away from whether any family members had diabetes, asthma, or were immune suppressed. I can state that during the jury selection, some of the jurors voiced concern over having to attend a trial that might expose them to the virus. One juror complained that two people had walked within six feet of her. Another asked the Judge to make a note that one of the Security Officers refused to wear his mask over both nose and mouth even after she asked him.

We chose a panel of 6 plus 2 alternates. There was a heavy representation of people over the age of 60 in those who responded to the jury selection process, and, generally, I like older jurors. There were fewer younger people in the pool and those who attended jury selection were either retired or had been laid off. Most of those who had jobs easily got excused of the 8 jurors selected, 4 were men and 4 were women. Only one juror was under the age of 50. The oldest juror was in his mid-70s.

A Socially Distanced Trial Begins

During the trial, the judge continually stressed the need for strict compliance with the Supreme Court order. Masks were always to be worn. No physical object could be handed from one person to another. Every exhibit had to be scrubbed with antiseptic before being published to the jury. Each juror had to have their own notebooks. Any exhibit added to the notebook had to be cleansed by the bailiff, wearing a mask and gloves, before it was added to each notebook. There was heavy reliance on my firm’s LCD projector, and we rented a screen that was available for use by both parties. There was no podium allowed since each surface had to be disinfected before another person touched it. We stood to speak to the Court or the jury from our chairs. I built a podium out of my chair, a box, and my leather briefcase.

During the five-day trial, the jury grew tired. They were impatient after the third day and easily frustrated. In most trials, after the second or third day, the jurors start to make friends, and one can see smiles as members great each other; maybe hear some laughs from the jury assembly room in the mornings. Not this time. No smiles, no greetings. Just business.

For bench conferences, the judge required the lawyers, the court reporter, and the judge to go into the Jury Deliberation Room, again making sure to maintain 6 feet of distance between everyone at all times. As a result, the court asked us not to request bench conferences except when it was truly necessary. For the most part, objections were, as in federal court, limited to one or two words, and speaking objections were discouraged.

Jury deliberations, after the closing argument, were shorter. The jury came back after only an hour and a half, shortly after lunch, the morning after closing arguments. It was a compromise verdict. After the jury’s decision was announced, most of the panel disappeared quickly, not wanting to stay to talk to each other or the lawyers. Three stayed. The client called after the verdict saying, this was a win.

Learning from the Changes & Getting Stronger

In summary, this trial was as difficult as I have had. In particular, the fact that witnesses wore a mask covering their facial expressions hindered the jury’s evaluation of credibility. It is difficult to estimate the impact of strict compliance with social distancing rules on the jury’s deliberation.
I wonder if they were mad at having to come to Court each day while the news outlets were reporting increasing virus-caused deaths, with a map of the State in the local news with the number of new cases each night.

With the trial behind me, though, I learned so much about what to expect in the coming weeks, months, and maybe even years. Litigation looks different during the COVID-19 era, and I and my law firm are ready for anything. (John Stiff, Stiff, Keith & Garcia, LLC)
 

Zarwin Baum DeVito Kaplan Schaer Toddy, P.C. Expands with Addition of Attorney Randy MacTough

(JULY 9, 2020) - Zarwin Baum DeVito Kaplan Schaer Toddy, P.C. – part of Themis Advocates Group – has recently expanded its casualty and professional liability defense practice group with the addition of Attorney Randy MacTough. He will be working out of the firm’s Wilmington, Delaware office, where he will lead his practice group.

Attorney MacTough is known by clients, law firms, and insurance groups alike throughout Delaware for his extensive experience and efficient approach to casework. He has personally litigated complex civil cases in front of state-level and federal-level courts in Delaware. Some of his most prominent case victories involved defending large corporations and smaller organizations in the healthcare, transportation, and higher education industries. Case types he has managed for such clients include but are not limited to premises liability, transportation, professional liability, products liability, toxic tort, and employment disputes.

A client-focused approach to litigation allows Attorney MacTough to produce creative solutions specifically catered to each client’s individual needs. He is a litigator who takes pride in providing every client with carefully crafted representation, not cookie-cutter work.

Before joining Zarwin Baum DeVito Kaplan Schaer Toddy, PC.  Attorney Randy MacTough practiced at the Delaware offices of well-respected law firms where he obtained valuable practical litigation experience. Randy also gained unparalleled insight into the judicial decision-making process as a law clerk for the Superior Court of Delaware and as a judicial intern for the United States Court of Appeals for the Third Circuit.

When not working on a client’s case, Randy usually spends his time by staying active in his community. For the past four years, he has served as a Guardian Ad Litem for The Office of the Child Advocate for Delaware. As a Guardian Ad Litem, he provides legal representation to children who are in the custody of the State of Delaware due to neglect and abuse.

From everyone at Zarwin Baum, we are honored to have Attorney MacTough join the firm and lead our growing practice in Delaware. From all of us with Themis Advocates Group, we send sincere congratulations to Randy and Zarwin Baum and look forward to hearing about all the great things you will be able to achieve for clients together.

 
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