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Rulings on science, fiduciary duty, marijuana top Md. high court’s term

The Court of Appeals builiding in Annapolis. MF-D 9/20/04.

The Court of Appeals issued several key rulings during it’s September 2019 term including permitting the admission of evidence based on emerging sciences, creating a cause of auction for breach of fiduciary duty and ruling that police may not arrest and search someone for marijuana possession simply because they smell of the drug. (File photo)

Maryland’s top court ended its 2019-2020 session last week having issued landmark rulings permitting the admission of evidence based on emerging sciences, creating a cause of action for breach of fiduciary duty and ruling that police may not arrest and search someone for marijuana possession simply because they smell of the drug.

During what history will record as its September 2019 Term, the Court of Appeals opened trials to a broader range of science-based testimony than that which is “generally accepted” among scientists. The high court ruled 4-3 that judges may admit into evidence scientific conclusions based on emerging theories that have been peer-reviewed and published but have not yet gained wide acceptance, also known as the Daubert test for admissibility.

The Court of Appeals also ruled unanimously that company investors harmed by the business decisions made by the corporation and its majority owner may pursue litigation against them. In its decision, the court stated clearly that Maryland recognizes breach of fiduciary duty as an independent cause of civil legal action.

In addition, a unanimous Court of Appeals held that police officers lack probable cause to arrest and search someone because he or she smelled of marijuana, noting that possession of less than 10 grams of the drug is not a crime in Maryland. Enabling police to arrest and search someone because they smelled of marijuana would violate the Constitution’s Fourth Amendment prohibition on unreasonable seizures and searches since odor alone does not indicate that a person is possessing at least 10 grams of the drug, the high court said.

“This was a term that wound up clarifying a few matters, like Daubert, but wasn’t full of big surprises,” said Steven M. Klepper, an appellate attorney with Kramon & Graham PA in Baltimore and editor in chief of Maryland Appellate Blog, which closely tracks and analyzes Court of Appeals decisions.

Klepper noted the high court heard fewer appeals in the September 2019 Term than initially planned, as arguments in at least five cases were rescheduled — due to efforts to stanch the COVID-19 pandemic – for the September 2020 session, which began Sept. 1.

The Court of Appeals, in its evidentiary ruling, abandoned its long-held “general acceptance” standard for admitting scientific testimony in favor of a “reliability” standard annunciated by the U.S. Supreme Court in 1993 and adopted by about 40 states in the past 27 years.

The Court of Appeals’ decision expounded on the judge’s role as “gatekeeper” of which scientific evidence may be admitted at trial, enabling jurors to weigh valid scientific conclusions while preventing untested “junk science” from being brought before them.

The widely accepted – and now Maryland-adopted — standard is called Daubert, after the Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals Inc. The former general acceptance standard was known as Frye-Reed, after a 1923 U.S. appeals court decision, Frye v. United States, and the Court of Appeals’ 1978 ruling in Reed v. State.

“The time has now come to plot a new course, overruling our Frye-Reed jurisprudence and finding Daubert factors persuasive, with regard to the analysis of expert testimony,” Judge Joseph M. Getty wrote for the Court of Appeals’ majority.

“The impetus behind our decision to adopt Daubert is our desire to refine the analytical focus when a court is faced with admitting or excluding expert testimony,” Getty added. “This becomes especially important in modern society, which routinely confronts emerging technologies that challenge the efficacy of Frye.”

Before admitting emerging scientific evidence that has not yet been generally accepted, Daubert instructs judges to weigh many factors such as whether the science has been peer-reviewed and published, whether it was developed prior to and not for the litigation, whether it has been or can be tested, whether the conclusion flows from the premise and whether the scientist has accounted for alternative explanations, the Court of Appeals said.

The high court rendered its decision in overturning a $1.35 million verdict for Starlena Stevenson, who alleges she suffered brain damage from being exposed to lead paint as a child in Baltimore in the early 1990s. In ordering a new trial, the high court instructed the judge to make a pretrial determination of whether the scientific testimony of Stevenson’s expert witness on the alleged cause of the brain damage satisfies the newly adopted Daubert standard of reliability.

The case is Stanley Rochkind v. Starlena Stevenson, No. 47, September Term 2019.

Appellate attorney J. Bradford McCullough called the high court’s just-completed term “pretty significant,” adding that its adoption of Daubert is a “big deal.”

“It’s going to give some clarity to trial judges” regarding the admissibility of science- based testimony, said McCullough, of Lerch, Early & Brewer Chtd. in Bethesda. “It’s going to make trial judges’ jobs easier.”

In recognizing a breach of fiduciary duty cause of action, the Court of Appeals acknowledged its nearly quarter century of fomenting confusion among lawyers and judges regarding whether harmed investors could sue for breach of fiduciary duty. A lack of consistency in Court of Appeals’ decisions since 1997 had led to conflicting lower court rulings and has spurred criticism among legal commentators, the high court said.

“When attempting to answer the question, Maryland appellate courts have not spoken uniformly on this issue,” Judge Brynja M. Booth wrote for the Court of Appeals.

“Indeed, this court has made seemingly inconsistent pronouncements, at times calling for a case-by-case analysis, and at other times, making a blanket assertion that ‘Maryland does not recognize a separate tort action for breach of fiduciary duty,’ ” Booth added. “Litigants pick and choose which statement they believe to be controlling. Understandably the muddled state of our jurisprudence has created inconsistent and irreconcilable conclusions by the Court of Special Appeals, federal courts, and state circuit courts.”

The high court rendered its decision in holding that Glen Burnie-based Trusox LLC and its majority owner, James P. Cherneski, owed but did not violate their fiduciary duty to the sports apparel company’s minority investors.

The case is William H. Plank II et al. v. James P. Cherneski et al., Misc. No. 3, September Term 2019.

In its marijuana ruling, the Court of Appeals noted that possession of less than 10 grams of marijuana is a civil offense punishable by a $100 fine in Maryland but is not a crime.

“(P)olice officers must have probable cause to believe a person possesses a criminal amount of marijuana in order to arrest that person and conduct a search incident thereto,” Chief Judge Mary Ellen Barbera wrote for the high court.

“Although marijuana in any amount is considered contraband, the search incident to arrest exception (to the Fourth Amendment) can be invoked only upon the occurrence of a felony or attempt of a felony or misdemeanor; a civil infraction is neither a felony nor a misdemeanor,” Barbera added. “The odor of marijuana alone is not indicative of the quantity (if any) of marijuana in somebody’s possession. …”

In its decision, the Court of Appeals overturned lower court rulings that police may constitutionally presume that the marijuana odor indicates the probable presence of at least 10 grams of the drug on the person.

The case is Rasherd Lewis v. State of Maryland, No. 44, September Term 2019.

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