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Court of Appeals faults Jewish holiday rulings

The Montgomery County judges who denied a plaintiff’s requests to postpone or suspend a June 2008 medical malpractice trial so he could observe a Jewish holiday abused their discretion, Maryland’s top court has held.

The Court of Appeals said Alexander Neustadter, who is an Orthodox Jew, is entitled to a new trial of his case against the doctors and hospital that cared for his now-dead father.

During Shavuot, which commemorates God having given the Jewish people the Ten Commandments, worshippers and their agents are prohibited from doing any work.

Neustadter and his attorney, Ronald Jarashow, were absent for two days of testimony in the trial. The jury reached a defense verdict, which the Court of Appeals reversed Thursday without reaching the constitutional question.

“The results are the same for the client,” said Thomas J. Mack, a professor at the University of the District of Columbia David A. Clarke School of Law.

Michelle Mitchell, who argued the case in September for Holy Cross Hospital of Silver Spring Inc., could not be reached Friday.

About a month before trial, Jarashow filed his motion to postpone the case with Montgomery County Circuit Court Judge Louise G. Scrivener, but she denied it, citing the court’s crowded docket and the imposition on jurors and witnesses.

Scrivener also rejected a reconsideration request, saying she had no “intention or any desire to affect Mr. Neustadter’s religious observance” but that she could not push the trial into a third week.

According to the Court of Appeals’ opinion, Neustadter’s attempt to postpone the trial was denied a total of four times by Scrivener and another judge.

With Neustadter and Jarashow absent from the courtroom, Holy Cross called two medical experts who testified, without objection or cross examination, that the doctors who did not re-intubate Neustadter’s father met the standard of care and should not be held liable in his death from respiratory failure.

The defense rested without the plaintiff or his attorney present on June 10. The jury began and finished deliberating the following day, when it returned a verdict for the hospital.

The Court of Special Appeals upheld the decision not to suspend the trial, noting the scheduling conflicts the judge faced.

Mack, who teaches constitutional law and litigates pro bono public interest cases, took over the case from his former students’ firm after one of them, Stephen Mercer, joined the Office of the Public Defender as the chief attorney of its forensics division.

University of Baltimore School of Law professor Kenneth Lasson, who wrote a friend-of-the-court brief on behalf of himself and 11 other legal scholars urging the judges to order a new trial, helped moot court the argument.

“I was just a pinch hitter,” Mack said of his first appearance before the seven-member court in Annapolis.

While Mack argued that the county judges’ rulings amounted to a “clear violation of the First Amendment,” Holy Cross’ attorneys argued that Neustadter’s right to religious freedom was trumped by the court’s compelling interest in managing its docket and “in the efficient and orderly administration of justice.”

Judge Clayton Greene Jr. authored the majority opinion of the Court of Appeals, to which Judge Glenn T. Harrell Jr. and Sally D. Adkins concurred in separate opinions.

Judge Joseph F. Murphy Jr. joined in Judge Harrell’s concurrence, in which Harrell agreed with the majority’s restraint before, as he put it, “going rogue” to explore the effect of the Free Exercise clause on the applicable standard of review.

Writing separately, Adkins said the court should have been a little less restrained about reaching the constitutional question.

“The majority’s conclusion that the refusal to postpone the trial was an abuse of discretion does not relieve us of our obligation to identify which is the appropriate constitutional standard,” Adkins said.

Mack said the decision won’t have as broad an impact as it might have if Adkins had her way, but it will shape Neustadter’s next trial.

“I’m sure this time all parties and the court will make sure it’s not on a religious holiday,” Mack said.



Alexander H. Neustadter, et al. v. Holy Cross Hospital of Silver Spring Inc., CA No. 12, Sept. Term 2010. Opinion by Greene, J. Concurrences by Harrell and Adkins, JJ. Filed Feb. 24, 2010.


Was the constitutional right to free exercise of religion infringed by four rulings that denied the plaintiff a postponement or recess during his case so he could observe an Orthodox Jewish holiday?


Because the Montgomery County judges abused their discretion in not granting the motions, it is unnecessary to reach the constitutional issue; reversed and remanded for a new trial.


Thomas J. Mack for petitioner; Michelle R. Mitchell for respondent.

RecordFax #11-0224-21.