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Court of Special Appeals asked to vacate opinion on Exxon Mobil damages

The Court of Special Appeals should vacate its decision striking down a significant portion of the $150 million in damages awarded to 88 Jacksonville households from Exxon Mobil Corp., according to a motion filed by the plaintiffs’ lawyers.

The reason, according to a motion for reconsideration filed Monday in the Court of Special Appeals, is because of much smaller numbers: The appellate panel failed to reach a seven-judge majority on several issues as required by state law for cases heard by the entire court.

“Aside from the court’s two unanimous … decisions, none of the court’s opinions amount to a ‘concurrence of a majority of the incumbent judges of the entire court,’” the motion states, citing state law for reaching decisions in banc.

Twelve judges sat on the Court of Special Appeals when the case was argued in September. But three judges — Chief Judge Peter B. Krauser, Judge Albert J. Matricciani Jr. and Judge Christopher B. Kehoe — recused themselves from the case.

But the magic number for the majority opinion remained seven despite the judges’ absences, the plaintiffs’ lawyers argued in their motion.

“[I]t is crystal clear that in the present case at least seven of the twelve incumbent judges were required to concur in any in banc ‘decision,’” the motion states.

The 321-page opinion included four separate concurrences and dissents. Four of the nine judges would have affirmed the verdict in all respects. The other five split their votes on the issues.

Among the four-judge voting bloc was Judges Robert A. Zarnoch and Timothy E. Meredith, who also were part of the three-judge panel that initially heard Exxon Mobil’s appeal in January 2011. The third panelist, retired Judge Raymond G. Thieme Jr., was specially assigned and therefore ineligible to serve on the panel based on a 2007 Court of Appeals decision that held “incumbent” judges are sitting judges appointed by the governor.

That Court of Appeals ruling also referenced the legislative history of the part of the Maryland code in question in both cases, Section 1-403(c). A 1973 report says the “majority” of incumbent judges refers to “the number of judges in office where the hearing is held.”

Paul Mark Sandler, a veteran trial lawyer who has written and edited books on appellate practice, said the motion has merit.

“It appears to be a deductive argument with the major premise that there was not a quorum with the requisite number of judges on the opinion,” said Sandler, of Shapiro Sher Guinot & Sandler in Baltimore. “I hope, as a trial lawyer, the Court of Special Appeals addresses the issue and resolves it.”

Stephen L. Snyder of Snyder & Snyder in Pikesville, the lead plaintiffs’ lawyer, declined to comment on the motion.

In an emailed statement, an Exxon Mobil spokeswoman said the company “has sought to engage in meaningful settlement negotiations and stands ready to compensate those who were truly impacted by this unfortunate accident.”

Jacksonville residents alleged the company ignored a history of reliability problems with leak detectors such as the one at the neighborhood Exxon Mobil gas station, where a 25,000-plus-gallon leak went undetected for five weeks in early 2006.

The five-month trial ended in March 2009, with the jury awarding the plaintiff households more than $71 million in noneconomic damages as well as property damage and medical monitoring awards.

On appeal, the Court of Special Appeals left intact about $60 million in property damage claims, reversing the award to just one household. However, a majority of the nine judges found the jury instruction on emotional distress damages was faulty and ordered a new trial on that count in Baltimore County Circuit Court for most plaintiffs.

The judges also struck down the awards for medical monitoring.

If the Court of Special Appeals were to grant the new motion, “where to go from there is very problematic,” according to retired Court of Appeals Judge Howard S. Chasanow.

“There are no easy fixes,” he said.

A rehearing by the in banc panel “is unlikely to accomplish anything,” Chasanow said. And using any combination of judges to create another three-judge panel could decide the case before a hearing because the judge’s opinions are now known, he said.

Another option would be affirming the circuit court decision because the Court of Special Appeals was unable to resolve the case, Chasanow said, but that “might not seem just” since a majority of the judges who heard the case agreed at least part of the case should be reversed.

“Perhaps the best remedy would be if the Court of Appeals would consider reaching down” and agreeing to hear the case on its own motion, Chasanow said.