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Trial judge’s ruling revived in stent dispute

The state’s highest on Friday reinstated a judge’s decision to split the claims of from fraud and conspiracy counts in two lawsuits over stent surgeries performed by former cardiologist Mark Midei at St. Joseph Medical Center.

St. Joseph Medical Center (File photo)

The Court of Appeals acted quickly to undo a contrary ruling by County Circuit Administrative Judge John G. Turnbull II.

Viewing it as a matter of court administration, Turnbull had not only countermanded the ruling by which Judge Nancy M. Purpura split, or bifurcated, the malpractice and fraud counts in the two cases before her; he also reassigned those cases away from Purpura and ordered that he alone would decide any future motions to bifurcate the issues in the hundreds of stent cases pending in the county.

In an order issued a week after arguments were heard, the Court of Appeals vacated Turnbull’s orders on all three points.

The main issue in the case, which was argued before the state’s top court March 8, hinged on the range of an administrative judge’s power.

for St. Joseph and Midei argued that only the trial judge had the power to decide a civil trial’s path.

St. Joseph’s attorney, Andrew D. Levy of Brown Goldstein Levy LLP in Baltimore, argued that Turnbull’s order was a “usurpation of judicial power.” Levy declined to comment on the decision Friday.

Turnbull’s attorney, Deputy Maryland Solicitor General William F. Brockman, argued that an administrative judge has the power to separate trials because he or she can better assess courthouse resources for complex litigation.

Attorneys for the patients, William H. “Billy” Murphy Jr. of Murphy, Falcon & Murphy in Baltimore, and Howard A. Janet of Janet, Jenner & Suggs LLC in Pikesville, called Turnbull’s decision “routine” for an administrative judge, during arguments before the Court of Appeals.

Murphy and Janet did not return calls for comment Friday; nor did J. Michael Sloneker of Anderson, Coe & King LLP in Baltimore, an attorney for Midei.

The suspended the cardiologist in 2009 and informed almost 600 patients that Midei may have implanted unnecessary . The flood of litigation soon followed.

Two of those cases, brought by patients Glenn L. Weinberg and Carl W. Sullivan, went before Purpura in September. Both cases included counts for medical malpractice as well as fraud and conspiracy.

Purpura granted a defense motion to bifurcate the trials, so that the medical malpractice counts would be tried separately from the conspiracy and fraud claims.

Purpura ruled that the division would save the court time and would prevent the doctor and hospital from being unfairly prejudiced.

Friday’s order, signed by Chief Judge Robert M. Bell, allows the bifurcated trials to proceed in Circuit Court.

The stent debacle contributed to the financial drain on St. Joseph, leading to the hospital’s sale earlier this year.

The Maryland Board of Physicians revoked Midei’s medical license in July 2011, saying the doctor had installed unnecessary stents in at least four out of five patients and had then lied about the extent of blockage in their coronary arteries. Baltimore County Circuit Judge Susan Souder rejected Midei’s appeal of the board’s decision in May.

In February, Colorado-based Catholic Health Initiatives agreed to pay $4.9 million in a settlement with the U.S. Justice Department over admitting patients unnecessarily for short stays in order to collect unwarranted reimbursements from Medicare, Medicaid and other federal programs.

This was preceded by another $22 million settlement with the Justice Department in November 2010 over allegations it had paid illegal kickbacks to MidAtlantic Cardiovascular Associates and billed federal benefit programs for the unnecessary stents.

Since 2009, the hospital suffered a drastic drop in patients and lost $3 million a month in revenue.

Catholic Health sold the hospital to the University of Maryland Medical System in November. The 145-year-old former Catholic community hospital is now called .

As part of the purchase agreement, University of Maryland assumes no liability in pending legal actions against St. Joseph Medical Center.

WHAT THE COURT HELD

Case:

St. Joseph Medical Center, Mark G. Midei, M.D., and MidAtlantic Cardiovascular Associates, P.A. v. The Honorable John Grason Turnbull, II, Misc. No. 21, September Term 2012, Argued March 8, 2013. Decided March 15, 2013.

Issue:

Once a trial judge bifurcated medical malpractice issues from fraud and conspiracy counts, did the administrative judge act within his powers by countermanding that ruling, reassigning the cases to another judge and ordering that any further motions to bifurcate must be decided by the administrative judge?

Holding:

For reasons to be explained later, the Court of Appeals vacated the administrative judge’s orders on all points.

Counsel:

Andrew D. Levy of Brown Goldstein Levy LLP in Baltimore for St. Joseph Medical Center and Michael Sloneker of Anderson, Coe & King LLP in Baltimore, for appellant; Deputy Maryland Solicitor General William F. Brockman, Office of the Attorney General, for appellee.

Motorcyclist settles action for $540K

A man who was severely injured when a drunk driver ran a red light and struck his motorcycle has settled his against the driver, the driver’s employer and the employer’s insurance providers.

Joseph Edward Wood agreed to settle the suit, which was being litigated in U.S. District in Baltimore, for $540,000, according to his attorney, Mark E. Rosasco of Hyatt & Weber P.A.

Wood had to have an ankle fused and lost bladder function after his motorcycle was struck by Dean Anthony Walton’s car on Aug. 4, 2008.

According to Wood’s lawsuit and court documents, Walton was a Louisiana resident who was in Baltimore working as a temporary crane operator for Houston-based KMGP Services Co. Inc. KMGP, which provides professional, scientific and technical services, rented a hotel room and a car for Walton to use in Baltimore.

Wood maintained that KMGP was Walton’s employer at the time the crash occurred and that ACE American Insurance Co. provided auto liability insurance to KMGP and its permissive users, defined as “[a]nyone else while using with [KMGP’s] permission” a car that KMGP rents.

ACE refused to provide coverage to Walton, claiming he was not a permissive user due to his extreme intoxication at the time of the accident. KMGP had a company policy barring employees from drinking alcohol and using a company vehicle, according to a prior ruling in the case.

Wood said Walton “departed a company function on the date of the accident and was en route to [his hotel] when he collided with Wood.”

Wood filed a negligence action against Walton and KMGP and ACE on Sept. 23, 2009, and a separate declaratory relief action against the same parties to resolve contractual and insurance coverage issues.

Both actions were removed to federal court and consolidated before Judge William D. Quarles Jr.

In May 2010, Quarles granted Wood’s motion for summary judgment as to Walton’s liability. In February 2012, Quarles found KMGP was not vicariously liable for Walton’s actions.

Remaining claims, including the insurance coverage issues, were scheduled for a bifurcated beginning on March 18.

Rosasco said Tuesday his client had $90,000 in medical bills, but suffered no lost wages because he was unemployed at the time the crash took place.

Kelly M. Preteroti, Jack Daley and M. Hamilton Whitman Jr., at Ober|Kaler in Baltimore, represented KMGP along with Craig Kaiser Ronald, of Ronald S. Landsman Attorney at . Preteroti declined to comment Tuesday on the .

Walton was represented by Winn C. Friddell of Bodie, Dolina, Hobbs, Friddell & Grenzer P.C. in Towson and Ryan Earl Naugle of Bodie Nagle Dolina Smith and Hobbs P.A. in Towson. Friddell also declined to comment Thursday.

Dina M. Gold and Alan J. Joaquin of Drinker Biddle and Reath LLP in represented ACE. Gold was not available for comment Thursday.

In his May 21, 2010, opinion in the tort case (1:09-cv-03398), Quarles noted that Walton was prosecuted in for driving under the influence and failure to stop at the scene of an accident. Walton was sentenced to two years’ imprisonment, with one year suspended, according to Quarles.

Citing the agreed statement of facts from the criminal prosecution, Quarles noted that Walton admitted running the red light, thinking it was green, and striking Wood’s motorcycle on North Point Boulevard in Baltimore County. Walton also admitted he kept driving but eventually crashed into a nearby ditch, where police soon found and arrested him, Quarles wrote.

JOSEPH EDWARD WOOD V. DEAN ANTHONY WALTON ET AL.

Court:

, Baltimore

Cases No:

1:10-cv-03422, consolidated with 1:09-cv-03398.

Judge:

William D. Quarles, Jr.

Outcome:

Settled before trial for $540,000.

Dates:

Incident: Aug. 4, 2008

Complaints filed: Tort (1:09-cv-03398) Sept. 23, 2009, transferred to federal court December 2009;

Declaratory relief (1:10-cv-03422) filed Oct. 4, 2010; transferred to federal court in December 2010.

Set for trial: March 18, 2013.

Settled: March 8, 2013.

Plaintiff’s attorney:

Mark E. Rosasco, Hyatt & Weber P.A. in Annapolis.

Defendants’ attorney:

Kelly M. Preteroti, Jack Daley and M. Hamilton Whitman, Jr. of Ober|Kaler in Baltimore and Craig Kaiser Ronald of Ronald S Landsman Attorney at Law in Baltimore for KMGP.

Winn C Friddell of Bodie, Dolina, Hobbs, Friddell & Grenzer P.C. in Towson and Ryan Earl Naugle of Bodie Nagle Dolina Smith and Hobbs P.A. in Towson for Walton.

Dina M. Gold and Alan J. Joaquin of Drinker Biddle and Reath LLP in Washington for ACE.

Counts:

Motor tort, negligent entrustment, declaratory judgment (insurance coverage).

Employees to testify against Hyatt

Michael Jones isn’t backing down. In fact, the 37-year-old, who has been a dishwasher at the Hyatt Regency for about 10 years, is eager to confront his employer.

Michael Jones (right), a dishwasher, works at the Baltimore Hyatt Regency and plans to testify Thursday night regarding what he perceives as unfair labor practices. Brian Deller (left) is a Hyatt bartender who plans to attend the City Council meeting with Jones.

Brian Deller isn’t backing down either. The 30-year-old bartender in the hotel restaurant plans to attend a Baltimore City Council hearing Thursday where Jones is expected to testify about hiring practices he believes are unfair to workers and detrimental to the city.

Both workers, and many of their colleagues, say the hotel routinely strays from a long-standing agreement between Hyatt Hotels Corp. and the city intended to protect employment opportunities for residents. That agreement — signed in 1979 when the hotel was built, with the city’s financial help — requires all Hyatt Regency workers to be direct employees, rather than temporary contractors.

But according to labor organizers and permanent employees, the Hyatt Regency heavily relies on contracted workers to complete a variety of day-to-day tasks, primarily housekeeping duties.

Labor organizers say the temporary contractors do not enjoy the same benefits as direct employees and often earn less per hour. Choosing a temp worker over a permanent worker also means less job security for city residents.

“It’s just a way for the Hyatt to avoid responsibility for those workers,” said Tracy Lingo, an organizer with Unite Here Local 7, the union representing Baltimore hospitality workers.

Lingo estimated that 50 contractors, hired through one of four or five staffing companies, regularly work for the Baltimore Hyatt.

Hyatt General Manager Gail Smith-Howard declined to say whether she has read the contract or is familiar with its terms.

“We have always honored our legal obligations as far as we know,” she said.

Smith-Howard said the hotel “supplements” its core workforce with contractual workers, but that is common practice within the hospitality industry.

Using temporary workers is indeed common, but the Hyatt Regency is a special case, said Councilman William H. Cole IV, whose district includes the Inner Harbor. The Hyatt stands on city-owned land and was built with the help of $20 million in federal and local aid, which the Hyatt has since repaid.

Cole said because Baltimore has a financial interest in the property — as profit-sharing is part of the 1979 contract — officials have a responsibility to ensure the hotel is holding up its end of the deal.

Following the testimony from employees, the council is expected to vote on a resolution that would call on Hyatt to stop using temporary workers and enable workers to pursue unionization without fear of retribution.

If passed, the resolution wouldn’t be binding, but, Cole said, the council will consult with the city Department of to determine if the hotel should be penalized for violating the contract.

“[Hyatt managers] certainly haven’t put us on notice that the contract is inherently unfair and that they can’t comply with it,” Cole said.

Unite Here provided The Daily Record with a copy of the housekeeping department’s employee schedule for the week of Jan. 27 , 2013 to Feb. 2, 2013. Of the 59 names on the list, 36 were highlighted by union organizers identifying them as temporary workers. The majority are working 40-hour weeks and are scheduled regularly, Lingo said.

Jones and Deller said temp workers are also “always” on the schedule for their departments.

“These are positions that, in the past, have been held by direct employees,” Deller said. “But as direct employees have either been fired, or moved on to different positions, or quit, they’ve filled those job positions with temps. And the thing is, most hotels use temps on a need-to or overflow basis, but that is everything but the truth. They’re filling positions that would have normally been full-time jobs for people.”

Cole said he will be out of town for the vote, but he doesn’t expect any council member to oppose the resolution. Last week, resolution author Councilwoman Mary Pat Clarke, who represents North Baltimore, also said she expects it will pass unanimously.

The council meeting won’t be the first time employees have publicly challenged the hotel. In January, several workers assisted the National Labor Relations Board in obtaining a on their behalf from hotel management for allegedly retaliating against employees who demonstrated intent to unionize.

“I went to return a DVD to a friend of mine on my day off, and [managers] basically had security escort me out of the building,” Jones said. “They said I needed to have permission to be in the building, but I told them I’ve been there for 10 years, and they’d never done that until I started organizing.”

For that offense, Jones was fired on Aug. 17. Others, including Deller, were formally reprimanded for arriving to work as little as one minute late, according to Deller and the NLRB complaint. Hyatt does have rules on the books that permit managers to discipline employees in such a manner, Lingo said, but the rules had rarely, if ever, been enforced.

The NLRB found sufficient evidence managers were enforcing those rules in direct response to those employees’ organizing activity. The Hyatt Regency settled with workers out of . Jones and another employee were re-hired, while a third, who had taken another job elsewhere, received a cash settlement. Disciplinary actions against Deller and others were revoked.

Cole said he expects the hotel will fall back in line with its contractual obligations, and Deller said he’s confident he and his colleagues will achieve what they’ve been fighting for: unionization.

“I just think that the Hyatt has a responsibility to provide good jobs,” Deller said. “They haven’t done it by themselves. No one has held them accountable, but my coworkers and I are standing up to make them accountable and to show people in the city that we deserve fair treatment. But sometimes you have to take that into your own hands.”

Md. judge dismisses paramedic’s suit against Berlin

BERLIN — A judge has dismissed a filed by a former paramedic on ‘s .

Norris Phillip Donohoe Jr. alleged in his lawsuit that he was wrongfully fired from his job as an emergency medical services supervisor in Berlin.

He was fired after the town received complaints of harassment within the department, but Donohoe says he’d never been the target of infractions or disciplinary complaints in his 23 years with the fire company.

The Daily Times of Salisbury reports that Worcester County Circuit Judge David B. Mitchell dismissed the lawsuit, which was filed last July and later amended, on the basis of governmental and legislative immunity.

Donohoe’s lawyer says Donohoe plans to appeal and “will ultimately prevail.”

Google pays $7M fine to settle Wi-Fi privacy case

SAN FRANCISCO — will pay a $7 million fine to settle a multistate investigation into the Internet search leader’s interception of emails, passwords and other sensitive information sent several years ago over unprotected wireless neighborhoods scattered throughout the world.

The agreement announced Tuesday covers 38 states and the District of .

‘s share of the penalty is $130,388, according to the ‘s office.

It closes an inquiry opened in 2010 shortly after Google revealed that company cars taking street-level photos for its online mapping service also had been grabbing personal data transmitted over networks that had been set up in homes and businesses without requiring a password to gain access.

It’s the largest penalty that Google Inc. has paid so far in the U.S. for the snooping. News of the penalty leaked out last week.

Google isn’t acknowledging any wrongdoing in the .

Photographer’s refusal to shoot same-sex marriage at issue in court

SANTA FE, N.M. — In a case that tests anti-discrimination protection for gays, a religious rights group told the New Mexico Supreme on Monday that a photographer who declined to shoot the commitment ceremony of a lesbian couple was exercising her rights to free speech and artistic freedom.

The First Amendment should exempt Elaine Huguenin and her Albuquerque , Elane Photography, from state laws prohibiting discrimination based on sexual orientation, Jordan Lorence of the Alliance Defending Freedom told the high court.

He said gay marriage is against the photographer’s religious beliefs, and she should not be required to promote a message that violates her conscience.

The state, however, argued that the business openly advertises its wedding photography services, and as a public business is required to follow the same anti-discrimination laws as any other company.

After the hearing, Lorence called it an unusual case that takes the gay marriage debate to a new level.

“Nationally, there is a lot of debate about should marriage be defined as between a man and a woman,” he said. “One of the consequences is that it creates these rights of conscience cases.”

In another case, Catholic Charities in Boston has declined to allow gay couples to adopt children, he said.

Lorence said the case involving Elaine Huguenin is one of the first in which free speech rights were used as a defense.

“The point we are trying to make is that even people who have views that are contrary should not be silenced by the government,” he said.

Tobias Wolff, a University of Pennsylvania professor representing the state, said the only thing unusual about the case was the defense.

“The nature of the discrimination claim is very straightforward,” he said after the hearing.

Questions from the Supreme Court justices during the hearing centered on how to differentiate between photography being a business or protected artistic expression.

“Are there no limits to this?” asked Justice Richard Bosson. “Can you force an African-American photographer to take photos of the Ku Klux Klan?”

Justice Charles Daniels noted the Klan is not a protected class. But he did say the questions in the case revolve around the rights of the couple and the photographer.

The case stems from Huguenin’s refusal in 2006 to photograph a commitment ceremony between Vanessa Wilcock and another woman.

Wilcock found another photographer to shoot the ceremony but filed an anti-discrimination claim with the Human Rights Commission, which found Huguenin’s studio violated state law and ordered her to pay nearly $7,000 in attorney fees.

A state district judge and the New Mexico Court of Appeals have upheld that ruling.

It was unclear when the New Mexico Supreme Court will issue a ruling.

Bel Air engraving company alleges copyright infringement

Two companies could be headed for a high noon showdown in U.S. District over infringement on engraved firearm parts.

Bel Air-based Harford Engraving Service LLC has filed a claiming Thompson Tools, its associated company, Two Point Enterprise, and owner, Dennis Matthew Thompson, are selling reproductions of its engraved firearm parts on the Internet, while falsely posing as Harford Engraving.

The complaint claims one count of false advertising, unfair competition and common law infringement. The lawsuit, filed Friday in in , also seeks an injunction against Haughton, La.-based Thompson Tools to stop selling the products.

By using Harford Engravings’ Universal Product Codes and the company’s trademark, the complaint alleges that Thompson Tools is falsely representing that Harford Engravings supplied the engraved products and has “captured a substantial amount of [Harford Engraving’s] on Amazon.com, and in fact, has nearly captured them all.”

Harford Engraving sells its products, which range from engraved flasks to dog tags, on its website, www.harengser.com. It also sells firearm parts engraved with sayings like “Don’t Tread on Me,” “Zombie Hunter,” and “These Colors Don’t Run.”

The company also sells its wares on Amazon.com, an aspect of the which, until recently, had been booming, said the company’s lawyer, Joshua A. Glikin of Bowie & Jensen LLC in Towson.

“What we are alleging is that this company in Louisiana has started to manufacture similar or identical-looking engravings and it’s sort of confusing the way it works on Amazon,” Glikin said. “This Louisiana company has entered its selling information on Amazon in a way that effectively markets its own knockoff engravings as the engravings produced by this company.”

Along with an injunction on Thompson Tools’ firearm parts sales, Harford Engravers is asking that all labels, signs, prints, ads and packages bearing its mark be destroyed or removed. The company is also asking to be awarded three times any profits made under its name or damages — whichever is greater.

Thompson declined to comment on the case when reached by phone Monday, but said he disagreed with the complaint and that he and his attorney would be taking action.

Amazon groups products on its page by UPC codes. When a consumer, for example, types in “ejection port cover” (a part that protects the gun’s ejection chamber from the elements) into Amazon’s search box, a page of the products comes up. The first product listed on the web page says it is made by Harford Engraving and uses the Harford Engraving UPC code.

When the consumer clicks on the product, he or she is taken to another web page where Thompson Tools is listed as the seller. The product is not actually made by Harford Engraving, and is in fact a reproduction of lower quality, Glikin said.

Amazon has struggled with this issue before and a U.S. District Court in Seattle ruled the company was not liable for a similar copyright infringement case in 2012. The website has a procedure and contact information for making complaints about copyright infringement.

The items sold by Thompson Tools are highly ranked under Amazon’s search formula and therefore appear at the top of the web page. The first three ejection port cover products that appear on Amazon’s web page (when searched at one point Monday afternoon) listed Harford Engraving as the maker, but are sold by Thompson Tools. The first ejection port cover both sold and made by Harford Engraving did not appear until the 12th product listed on the page.

Not only does a sale advantage go to a higher-ranked product on a web page, but products sold by Thompson Tools are also cheaper than those sold by Harford Engraving. For example, an ejection port cover sold by Thompson Tools was listed at $14.45 and the equivalent product sold by Harford Engraving cost $14.50.

“That wouldn’t be a profit if they bought it from Harford Engravers and decided to resell it,” Glikin said. “Our client alleges that’s not what they are doing. It’s a reproduction that it’s selling.”

Since Thompson Tools started selling these items last month, Harford Engraving’s Amazon sales have plummeted, Glikin said.

“Because the natural inclination is to choose the preferred seller or item and when the other seller is 5 cents more, why not buy from the preferred seller?” Glikin said. “We allege as a result our client gets a statement from Amazon that the sales have basically tanked.”

Judge dismisses much of torture suit against CACI

ALEXANDRIA, Va. — A federal judge dealt a severe blow Friday to a long-running filed against contractor CACI by four Iraqis who say they suffered abuse at the notorious .

At a hearing in , Judge Gerald Bruce Lee tossed out claims that CACI conspired to torture the four men who filed the suit. Some other claims can still go forward, including allegations that CACI aided and abetted torture, but will be difficult to prove.

The conspiracy claims were critical to the lawsuit because the four prisoners make no allegation that they suffered harm directly at the hands of CACI employees, who worked as contract interrogators at Abu Ghraib. The conspiracy claim rested on the theory that CACI as a corporation actively engaged in a plot to torture prisoners, a theory Lee said was unsupported by the facts.

“I need to have facts about what happened to these plaintiffs” that directly relate to CACI, Lee said during Friday’s hearing.

Baher Azmy, a lawyer for the New York-based Center for Constitutional Rights, which represents the plaintiffs, was disappointed by the ruling, but said Lee’s decision still allows the plaintiffs to refile their claims to include facts that would support a conspiracy claim. Azmy said fact-finding is ongoing — one of the plaintiffs gave a deposition Wednesday, as has former Staff Sgt. Ivan “Chip” Frederick, the highest-ranking soldier to be convicted after horrific photos depicting abuse suffered by Abu Ghraib prisoners were released in 2004.

Lee also dismissed parent company CACI International Inc. from the suit, leaving only a subsidiary — CACI Premier Technology, which employed the contract interrogators — as a defendant. The dismissal of the parent company could limit the plaintiffs’ ability to collect damages if they eventually prevail.

In the lawsuit, the former prisoners claimed CACI conspired in a pattern of abuse, including mock executions, beatings, electric shocks and other humiliating treatment. One of the men said he was kept at the prison for more than four years without ever being charged before his 2008 release.

Arlington-based CACI says its employees never even came in contact with the plaintiffs. In papers, they say it defies common sense for the company to have actively engaged in a torture conspiracy, saying the company had nothing to gain by doing so.

The lawsuit was first filed in 2008. At a preliminary stage, Lee had issued rulings favorable to the plaintiffs. At Friday’s hearing, though, he said that a 2009 case, Ashcroft v. Iqbal, changed the legal landscape and tightened the requirements for demonstrating that higher-ups can be implicated in a conspiracy claim.

While some CACI interrogators were implicated in improper conduct in military investigations of the Abu Ghraib scandal, none have ever faced criminal charges. And CACI has never been found liable for Abu Ghraib abuses in a civil case.

Last year, a different contractor at Abu Ghraib settled a similar lawsuit and has since paid more than $5 million to former prisoners held at Abu Ghraib and other U.S.-run detention sites in Iraq during the war.

Hopkins seeks speedy decision on Montgomery project

A legal dispute between the family of a major donor to the University and the university has escalated.

Belward Farm

The family of Elizabeth Beall Banks is protesting a motion filed last month by Hopkins to speed up an appeal now lodged in the state of Special Appeals. Arguments were expected to be scheduled for October.

The appeal centers on a 2012 summary judgment granted to Hopkins by a judge in Montgomery County Circuit Court that allows the university to proceed with a 108-acre biotech on the 138-acre Belward Farm in Rockville, near the sprawling Shady Grove Life Sciences Center.

The university’s plans for the development of Belward clash with the original intent of the transaction, Banks’ family said in the filed in November 2011.

Banks sold Belward Farm, which had been in the family since 1873, on Jan. 9, 1989, for $5 million — a price her family says was $49 million less than market rate. She had rebuffed several offers from developers over the years, her family said, even once chasing an eager developer off her property with a shotgun.

Hopkins officials had told Banks, who died in 2005, that the university would preserve parts of the historic farm as part of a project to build a low-rise satellite academic and research campus that would total 1.4 million square feet.

But the university has since revised its plans.

Plans presented to the Montgomery County Council and planning officials in 2011 and 2012 show that Hopkins officials intend to turn Belward Farm into a cluster of high-rise research and office buildings with a total of 4.7 million square feet of commercial biotech.

That change is at the center of the bitter legal clash.

“Hopkins wants to speed the appeal process up,” said Tim Newell, Banks’ nephew and a spokesman for the family. “But we have hired new counsel, and we believe there is no reason to speed it up.”

In its motion, Hopkins argued that it wants an expedited ruling by the Court of Special Appeals for economic development reasons, saying that construction of the research park would help further the efforts of the county to build out its Great Seneca Science Corridor Master Plan, which outlines future growth at the Shady Grove Life Sciences Center, including Johns Hopkins University’s Montgomery County campus.

Tracey Reeves, a university spokeswoman, said in an email Tuesday that the university hopes to fast-track the case.

“Two courts have now ordered expedited treatment of the case,” she said. “The motion filed by Johns Hopkins University simply seeks to implement the expedited treatment already ordered by the courts.”

Newell said the family has hired Carter G. Phillips, a prominent attorney with Sidley Austin LLP, to argue the appeal. He said his aunt’s sale of the farm to Hopkins was considered a charitable donation because of its discounted price and the university in turn placed her name on a wall honoring major donors.

“[Hopkins has] made this about money, and I guess they are willing to take a black eye about not living up to the charitable intent of this gift,” Newell said.

Reeves and other Hopkins officials declined to reveal details about the timeline for the development of Belward Farm and whether the university has preleased any space there.

CSA revives suit over teen’s kidney failure

A young man whose kidneys failed at age 17 can sue an emergency room physician who oversaw his treatment two years earlier, when he arrived complaining of blood in his urine.

The of Special Appeals reinstated a filed by Donnell Nance against Dr. David A. Gordon. A lower court threw out the suit because Nance offered expert testimony from a nephrologist, while the doctor he is suing is a urologist.

The appellate court’s decision follows two others it decided last year involving disputes over which experts can testify in cases.

In Demuth v. Strong, filed in June, the court allowed a board-certified vascular surgeon to testify about the standard of care applicable to a board-certified orthopedic surgeon. And in Hinebaugh v. Garrett County Memorial , filed in August, the court said it is “not necessary for a certifying expert or testifying expert witness in a medical malpractice case to be the same kind of health care provider as the defendant.”

Jeff Peek, a medical malpractice attorney at Cardaro & Peek LLC in who was not involved in Nance’s case, said Wednesday this case highlights an issue plaintiffs’ lawyers who do malpractice work have been dealing with for a number of years.

“Defense are challenging the certificate of qualified experts for reasons that do not serve the intent of the [Health Care Malpractice Claims Act],” Peek said. “They are challenging it for form over substance.”

In addition to Gordon, Nance sued Chesapeake Urology Associates and Larry Waskow, a urology physician’s assistant, in May 2009. He alleged that Gordon and Waskow failed to include nephritis on a differential diagnosis when he arrived at Baltimore’s Sinai Hospital with blood in his urine in 2005. (Sinai is not a defendant in the suit.)

Nephritis is acute or chronic inflammations of the kidneys. Making a differential diagnosis involves distinguishing one disease from others that have similar signs or symptoms.

Jordan submitted a Certificate of Qualified Expert in which he attested that the doctor and physician assistant deviated from the standard of care. In response, the defense filed a motion to dismiss, or, in the alternative, for summary judgment and argued that Jordan was not a “qualified expert” under the Health Care Malpractice Claims Act because the doctor was a nephrologist instead of a urologist.

Baltimore City Circuit Court Judge Evelyn O. Cannon agreed, and granted summary judgment in favor of the doctor and physician assistant. Nance appealed.

In reversing the lower court’s decision last Friday, the Court of Special Appeals said an expert “need only satisfy certain professional qualifications in ‘the same or a related specialty [or field]’ to submit a valid certificate under the Health Care Malpractice Claims Act. It also agreed that nephrology and urology share a “common focus” on the kidneys, and said they are related in this case because “‘the treatment rendered’ (a differential diagnosis) … is ‘performed by both specialists’.”

Nance’s expert witness, Jordan, has “experience with consults for emergency room patients who present both with medical issues of the kidney and with urinary tract obstructions and surgical kidney diseases,” the Court of Special Appeals said in the opinion. “In other words, Dr. Jordan is familiar with the medical conditions and diseases normally treated by nephrologists and urologists that may be presented.”

Gregory L. VanGeison, an attorney at Anderson, Coe & King in Baltimore, was one of the attorneys who represented the defendants. VanGeison did not return a call or email Wednesday requesting comment.

Andrew H. Baida, an attorney at Rosenberg|Martin|Greenberg LLP in Baltimore, represented Nance. Now in his 20s, Nance has had a kidney transplant and must take anti-rejection drugs for the rest of his life, the lawyer said.

“This is a very good outcome for my client whose claim has been reinstated,” Baida said Wednesday. “It’s a significant victory from his standpoint and it was the right decision by the Court of Special Appeals.”

WHAT THE COURT HELD

Case:

Donnell Nance v. David A. Gordon, et al., No. 1574, September Term 2011. Opinion by Woodward, J. Argued Jan. 2, 2013. Decided March 1, 2013.

Issue:

Did the circuit court err when it concluded that the expert offered by a plaintiff in a medical malpractice case was not qualified to testify under the Health Care Malpractice Claims Act?

Holding:

Yes. The Court of Special Appeals said a nephrologist could testify as an expert witness against a urologist because the nephrologist share a “common focus” on the kidneys.

Counsel:

Andrew H. Baida, an attorney at Rosenberg, Martin, Greenberg LLP in Baltimore for appellant; Gregory L. VanGeison, an attorney at Anderson, Coe & King in Baltimore, for appellees.

RecordFax #13-0301-00 (21 pages).

Club owner to get 4th trial on drug charge

WASHINGTON — A owner charged with drug conspiracy whose case went to the U.S. Supreme will be tried a fourth time.

A government prosecutor said Tuesday at a court hearing that Antoine Jones will be retried after a jury couldn’t reach a during his third , which followed a victory for Jones at the U.S Supreme Court.

The Supreme Court overturned a previous conviction more than two years ago because police used a global positioning device to track him without a valid warrant.

On Monday, U.S. District Judge Ellen Segal Huvelle declared a mistrial after jurors deadlocked following seven days of deliberations. At Tuesday’s hearing, Jones, who represented himself with the assistance of court-appointed lawyers, told Huvelle that he wanted to try to find a lawyer to represent him during the next trial.

Huvelle said during the hearing that someone connected to Jones had approached a juror after the case, and she told Jones to warn them to stay away.

Jones’ first trial, in 2007, also ended in a mistrial. He was convicted in a second trial and sentenced to life, but a federal appeals court reversed. The upheld the reversal last year in a major decision that has prompted police to seek search warrants more often before they use tracking devices.

The government alleged that Jones was linked to a house in Fort , where authorities found nearly $1 million in cash and nearly 100 kilograms of cocaine.

Jones, owner of the Levels nightclub, was arrested in 2005. A joint task force of the FBI and Washington’s Metropolitan Police Department had obtained a 10-day warrant to install a GPS device on Jones’ car in the District of but failed to use it as specified. After the warrant expired, they found Jones’ car in a parking lot in and installed the device, then monitored his driving patterns for 28 days.

The police also obtained cell-site data during their investigation, but did not use it during the earlier trials because they had the more reliable GPS data. Last month, the judge presiding over the current trial found the cell-site data.

JC Penney could wind up with empty shelves

NEW YORK — , which is struggling with big losses and steep declines, could face another challenge: empty shelves.

New York State Supreme  Judge Jeffrey Oing told Penney’s on Monday that the chain took a risk by ordering towels, cookware and other products from the company that home diva founded. In fact, Oing said he could force Penney to stop the products from heading to the shelves this spring even as they come off the docks.

“That’s the risk your client took,” Oing said. “Ultimately, you guys played it out.”

Oing said he will hear oral arguments on Friday over the issue of whether Penney can sell goods like towels designed by Martha Stewart Living that are covered by Macy’s exclusive agreement but are not sold under the Martha Stewart brand name.

The judge’s statements came during the start of the third week in a that pits J.C. Penney Co. against rival Macy’s Inc. over their relationship with Martha Stewart Living Omnimedia Inc. At issue is whether Macy’s has the exclusive right to sell some of Martha Stewart branded products such as cookware, bedding and bath.

In a statement Monday, Penney said that it would not have proceeded with its agreement with Martha Stewart Living if Penney thought it would interfere in any way with Macy’s pact with the media and merchandising company.

“Macy’s is attempting to gain through the more rights than it actually has under its written contract with” Martha Stewart Living, the company said in the statement.

Macy’s has argued that Penney breached its long-standing contract when it signed a deal in December 2011 to open Martha Stewart mini shops in most of its stores this spring. Macy’s, which has been the exclusive carrier of some Martha Stewart products including towels and pots since 2007, is trying to block Penney from selling those products. It also wants to stop Martha Stewart from providing any designs to Penney — whether or not it carries the Martha Stewart label.

Last July, Macy’s won a preliminary injunction against Martha Stewart Living that would prevent it from selling Martha Stewart branded housewares and other exclusive products at Penney. In August, the judge granted permission for Penney to open Martha Stewart shops as long as the items under the exclusive contract with Macy’s are not sold in them.

But Penney plans to sell products that are part of Macy’s exclusive agreement in May. The goods will be branded under JCP Everyday, a new brand reserved for the home diva’s merchandise. Penney also plans to sell products like curtains and stationery that are not a part of the exclusive Macy’s contract under the label “Martha.”

Mark H. Epstein, representing Penney, argued that a decision to block the department store from selling goods like towels and bedding that don’t carry the Martha Stewart label would be devastating because the company doesn’t have a substitute.

Oing said even though he understands the financial repercussions, his decision can’t be influenced by financial matters.

“These three companies are the fabric of America,” Oing said. “I haven’t decided what I am going to do. I’m keeping the cat in the bag.”

The stakes are high for all three companies. Macy’s CEO Terry Lundgren testified last week that the Cincinnati-based department store chain built the Martha Stewart brand to become the biggest name in the home area, and having a rival carry similar products would hurt .

Martha Stewart Living, based in New York City, is trying to fatten merchandising revenue as it struggles to offset declines in its broadcast and publishing business, a segment that accounts for more than 60 percent of its total business. Martha Stewart is expected to testify Tuesday.

But perhaps the company with the most to lose is Penney. The company, based in Plano, Texas, is in the middle of a turnaround plan that’s faltering: The company has reported big losses and sales declines for four straight quarters since it started a strategy to get rid of most of its sales in favor of everyday low prices last year. Penney, which started to roll out shops last fall, has been counting on a reinvented home area to attract shoppers. It had planned to use the Martha Stewart brand as the anchor.

Brian Sozzi, a retail industry analyst with NBG Productions, said that if Penney ends up being forced to give up the JCP Everyday line of products, it could have a “mushrooming effect” just as worries abound that the company is burning through cash.

“The company invested large sums of money,” Sozzi sad.