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Three Court of Appeals cases to watch this term

Contributory negligence, transferred intent and stormwater runoff regulations on top court’s docket

During its 2015-2016 term, which starts Tuesday, the Maryland Court of Appeals will hear the state’s request that the high court reinstate the first-degree murder and attempted murder convictions – and life sentence – of a man who remains charged with killing one and wounding another in a 2012 shooting outside an Eldersburg tavern.

The Court of Appeals will also consider whether a pharmaceutical company could be held financially liable for failing to warn doctors about a drug’s potentially carcinogenic side effect, even though the cancer victim contributed to the fatal disease by smoking cigarettes.

In addition, the court will dive into a long-running challenge to state stormwater runoff regulations from environmentalists who claim the state permit governing Montgomery County is ill-defined and in violation of Maryland law.

The Court of Appeals is expected to render its decisions in these three cases, as well as the other approximately 135 it will hear this term, by Aug. 31, 2016.

In the murder case, the high court will review a Court of Special Appeals ruling that a Carroll County judge erred by instructing the jury on the legal concept of transferred intent at Jacob Bircher’s trial. The intermediate appeals court said transferred intent – which applies when a person intends to kill someone but kills someone else in the attempt – was not supported by the evidence at trial, which included testimony that Bircher was just firing wildly at a crowd.

The case is State of Maryland v. Jacob Bircher, No. 33, Sept. Term 2015. No argument date has been scheduled.

In the pharmaceutical case, the Court of Appeals will hear a challenge to the breadth of Maryland’s contributory negligence defense, in which defendants are absolved of any financial liability for their negligent acts if the plaintiffs contributed to their injuries at all through their own negligence. Maryland is one of a handful of states that hold contributory negligence to be a complete bar to recovery.

In papers filed with the Court of Appeals, Diep An’s widow and children argue that Takeda Pharmaceuticals America Inc.’s negligent failure to warn doctors that its diabetes drug Actos could cause bladder cancer should be treated as a strict liability cause of action under Maryland law.

If deemed a strict liability claim, Takeda’s successful trial defense of contributory negligence would not apply — and a jury’s award of more than $1.75 million could be reinstated.

The case is Camhong An et al., v. Takeda Pharmaceuticals America Inc. et al., No. 19 Sept. Term 2015. No argument date has been scheduled.

In the stormwater case, the high court will hear the Maryland Department of the Environment’s appeal of lower court rulings that a permit MDE issued for the Montgomery County failed to spell out clear benchmarks, guidelines and standards for stormwater control. MDE argues the permit appropriately incorporated by reference publicly available materials spelling out the benchmarks, guidelines and standards.

That argument, however, failed in Montgomery County Circuit Court and in the Court of Special Appeals, which said the regulations, as written, merely call on the county to use best management practices to reduce stormwater runoff.

The case is Maryland Department of the Environment v. Anacostia Riverkeeper et al., No. 42, Sept. Term 2015, and is scheduled to be argued Nov. 5.