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Spring 2015 What’S Maryland Got to Do with It? Fourth Circuit Cases in the SCOTUS 2014–15 Term Marisa A

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Spring 2015 What’S Maryland Got to Do with It? Fourth Circuit Cases in the SCOTUS 2014–15 Term Marisa A THE Defense Line A Publication From The Maryland Defense Counsel, Inc. Spring 2015 What’s Maryland Got to Do With It? Fourth Circuit Cases in the SCOTUS 2014–15 Term Marisa A. Trasatti & Jhanelle A. Graham Also Featured To Appeal or Not Appeal • For Men of That Calling • When The Shoes Don’t Fit Health Care Provider Who? • Uber Serious Implications • 2015 Legislative Update • Case Spotlights Promoting Justice. Providing Solutions. President’s Message Dear MDC Members y year as MDC President is quickly coming to I am proud of the efforts made by our substantive Man end and I wanted to take this opportunity law committees to expand their rolls and participa- to thank the other Officers, President tion, and we welcome the addition of a Elect Nikki Nesbitt, Secretary Chris new subcommittee, lead paint, chaired Boucher and Treasurer Marisa Trasatti; by Susan Smith and Lisa Morgan. I immediate Past President, Toyja Kelly; hope that all who practice in the lead the entire Board; and our Executive paint arena contact Susan and Lisa and Director, Kathleen Shemer for all the join the committee and share ideas and hard work and commitment through- practice notes that will help each of you out this year to coordinate our efforts in your practice. This is also a good in Annapolis to support the defense time to remind all of our members and communities interest, and in put- committee chairs to think about what ting together amazing programs such they can do to expand their committee’s as our annual Trial Academy. I wish activities and recommend that if you Kathleen Shemer a Happy Twenty Michael L. Dailey, have not already implemented regular Fifth Anniversary as our Executive Esquire committee meetings, you start doing Director and thank her for her tire- Schmidt, Dailey & O'Neill, LLC so now and please contact me with any less efforts to keep the MDC running help you need to get started. strong and growing! Finally, I want to extend our thanks and gratitude to This year’s Trial Academy provided more interaction all of our members who represented the defense bar’s and practical trial experience for the attendees, as interests before the Maryland legislature this session, they participated in small group break-out sessions including Nikki Nesbitt, Chris Boucher, Gardner and had the opportunity to examine witnesses and Duvall, Ileen Ticer and our lobbyist, John Stierhoff. I also want to thank John’s Paralegal, Angel Lavin, receive immediate feed-back from experienced attor- who kept us all informed of any bills that affect the ney coaches. I want to thank the Honorable Paul W. defense community and Angel did an amazing job Grimm, Judge of the United States District Court again in coordinating this year’s successful legislative for the District of Maryland Southern Division, dinner. for agreeing to be our Trial Academy Keynote Speaker. Judge Grimm provided insight and perspec- Congratulations to our Immediate Past President, tive on the challenges that face all trial attorneys in Toyja Kelly, who was elected as DRI’s Secretary their efforts to rehabilitate witnesses. Thank you to Treasurer for 2015. Please join DRI at the Annual Program Chairs Taren Stanton, Rachael Hirsch and Meeting as it returns to Washington, DC this year. Thomasina Poirot for putting together a challenging The DRI Annual Meeting will take place October program that I believe will shape our future acad- 7–11, 2015, at the Marriott Wardman Park in DC emies. This is a huge time commitment and you all and for anyone who has not had the opportunity to did a great job. Also thank you Kathleen Shemer for attend in the past, I strongly urge you to attend. It’s coordinating the new location this year at University a great way to meet defense attorneys from across of Baltimore Business Center (and then getting a the country who practice in your field, foster net- second date when our original date got canceled due working relationships, and attend excellent seminars to snow!). presented by national speakers and leaders. 2 The Defense Line The Defense Line Featured Articles Spring 2015 What’s Maryland Got to Do With It? Fourth Circuit Cases in the SCOTUS 2014–15 Term ................... 5 Editorial Staff Marisa A. Trasatti and Jhanelle A. Graham To Appeal or Not Appeal: E ditor Recent Maryland Court of Appeals Decisions on When You Can Appeal . .. 9 Leianne McEvoy, Esquire Alfred L. Scanlan, Jr., Robert N. Kelly and James N. Markels Assistant Editor For Men of That Calling: A Newly Articulated Test in Salvage Cases . .... 11 Laurie Ann Garey, Esquire Jason R. Harris and Ellen G. Shults When The Shoes Don’t Fit: The Maryland Court of Appeals Limits Assignee Liability of A Loan Purchaser For Statutory Violations Executive Committee Officers Committed By The Lender at Closing. 13 Gerry Gaeng and James Crossan President Michael L. Dailey, Esquire Health Care Provider Who?. 15 John T. Sly President-Elect Uber Serious Implications: How a Smartphone App is Driving K. Nichole Nesbitt, Esquire the Conversation on Worker Classification . .......................... 19 Secretary Rachel M. Severance Christopher Boucher, Esquire Maryland General Assembly Wraps Up 2015 Legislative Session . ....... 21 Christopher Boucher, Michael L. Dailey, K. Nichole Nesbitt, Treasurer Marisa A. Trasatti, Esquire Colleen K. O'Brien, and John R. Stierhoff Immediate Past-President Columns Toyja E. Kelley, Esquire President’s Message. 2 Editor’s Corner. 7 Executive Director Kathleen F. Shemer, Esquire New Members . .................................................... 7 Spotlights. 31 The Defense Line is a publication OFFICIAL SPONSOR from the Maryland Defense Counsel, Inc. GOLD SPONSORS Maryland Defense Counsel 1218 Broadway Road Lutherville, MD 21093 Phone 410-560-3895 SILVER SPONSORS Fax 443-705-0217 TM Joseph I. Rosenberg E-mail: CFA, LLC Forensic Economics, Mediation, & [email protected] Technologies Incorporated Financial Advisory Services www.mddefensecounsel.org Certified Public Accountants • Business Consultants Cover Photo Collage: Forensic & Valuation Services Division Shutterstock.com The Defense Line 3 Spring 2015 4 The Defense Line Spring 2015 What’s Maryland Got to Do With It? Fourth Circuit Cases in the SCOTUS 2014–15 Term Marisa A. Trasatti and Jhanelle A. Graham In Young v. United Parcel Service, Inc., under the Pregnancy Discrimination Act the Supreme Court was asked to decide may make a prima facie case by showing that for the first time whether the Pregnancy she belongs to the protected class, that she Discrimination Act (“PDA”) requires an sought accommodation, that the employer employer to provide light duty to a pregnant did not accommodate her, and that the employee. In Young, Plaintiff, Peggy Young, employer did accommodate others similar a pregnant United Postal Service (“UPS”) in their ability or inability to work. The delivery driver in Landover, Maryland, was employer may then seek to justify its refusal instructed by her medical provider to not lift to accommodate the plaintiff by relying more than twenty (20) pounds while work- on “legitimate, nondiscriminatory” reasons n its 2013–2014 term, the Supreme ing. UPS’s employee policy requires their for denying accommodation. According to Court of the United States (“SCOTUS”) employees to be able to lift up to seventy the Supreme Court, the record showed addressed controversial topics such as I (70) pounds. Due to Young’s inability to ful- that Young created a genuine dispute as campaign finance restrictions, racial discrim- fill this work requirement, as well as the fact to whether UPS provided more favorable ination, pro-life speech outside of abortion that she had used all her available family/ treatment to at least some employees whose clinics, unions, legislative prayer, and the medical leave, UPS instructed Young to take situations could not be reasonably distin- Patient Protection and Affordable Care Act an extended, unpaid leave of absence, during guished from hers. Thus, the Fourth Circuit (“ACA”). Notably, the Court issued unani- which time she lost her medical insurance must now determine on remand whether mous decisions in a record forty-five (45) coverage. Young gave birth in April 2007 and Young also created a genuine issue of mate- of seventy (70) cases, and only eleven (11) resumed working at UPS thereafter. rial fact as to the motive behind UPS’ less cases were decided by 5–4 plurality opinions Young sued UPS, alleging that she had favorable treatment of Young compared (compared to twenty-three (23) 5–4 plural- been the victim of gender and disabil- with other nonpregnant employees. ity opinions in the 2012–13 term). Of those ity discrimination under the Americans Justice Alito filed an opinion concurring 5-4 decisions, six (6) cases divided the Court with Disabilities Act and the Pregnancy in the judgment, Justice Scalia filed a dissent- along party lines (i.e., Justices Ginsburg, Discrimination Act. UPS moved for sum- ing opinion in which Justices Kennedy and Breyer, Sotomayor, and Kagan (“liberals”) mary judgment and argued that Young could Thomas joined, and Justice Kennedy filed a against the votes of Chief Justice Roberts and not show that UPS’s decision was based on separate dissenting opinion. Justices Scalia, Thomas, and Alito).1 her pregnancy or that she was treated dif- The 2014–15 term promises to be equal- 2) Double Taxation — Comptroller of ferently than a similarly-situated coworker. ly exciting — the Court will hear cases Treasury of Maryland v. Wynne, 431 Md. Furthermore, UPS argued that it had no involving free speech, voting rights, religious 147 (2013); 135 S.Ct. 425 (2014). obligation to offer Young accommodations freedom, and prisoners’ rights, in addition under the Americans with Disabilities Act In 2015, the Supreme Court will decide to possibly tackling yet another challenge to because Young’s pregnancy did not con- whether the United States Constitution pro- the ACA and same-sex marriage.
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