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Epilogue to Banff 2015 Amarin and Caronia

Amarin/Caronia: What Lies Ahead for Tort Preemption?

It is a coincidence that the death of Frances Oldham Kelsey on August 7, 2015 coincided with the release of the decision in Amarin v. FDA, 1:15-CV-03588-PAE, Doc. 73 (SDNY Aug. 7, 2015). Ms. Kelsey is generally credited with the regulatory changes that require evidence of efficacy before a product can be marketed for a specific use. Those changes came about because of the promotion of thalidomide, a drug that physicians prescribed for nausea during pregnancy, which caused profound deformities in developing fetuses.

The Amarin court addressed a related issue—whether manufacturers could be prevented from disseminating information concerning indications, dosages, durations, or in combinations not in the Food and Drug Administration (FDA) approved label (i.e. off-label). The court concluded that more, not less, truthful information was needed, observing that off-label use is often recognized as the standard of care in medicine and has been recognized as such by the United States Supreme Court. Id. at 5-9. It is an unassailable truth that no one has ever died or been injured because they had too much truthful scientific or medical information. Health care is improved and lives are saved when doctors have unrestricted access to truthful information concerning the safety and effectiveness of FDA-regulated products for on-label use, and the health benefits are even greater when the information concerns off-label uses.

In Amarin, the court rejected the government’s misreading of the landmark opinion in U.S. v. Caronia,703 F.3d 149 (2d Cir. 2012), and significantly curtailedthe FDA’s power to bar a manufacturer from disseminating truthful, non-misleading scientific and medical information.Less obvious and potentially more significant for manufacturers, is the issue of tort duties that can arise when the FDA’s oversight is limited. 

The terms “promotion,” “advertising” and “off-label” are not defined in the Food Drug and Cosmetic Act, and to no one’s surprise, the FDA’s regulation of speech concerning promotional activities and advertising related to off-label use has been a muddled mess. The lack of a clear set of rules has allowed the FDA unfettered discretion in defining the applicability of these terms in civil and criminal enforcement proceedings. The Amarin court details the current regime for disseminating truthful scientific information concerning new uses and the narrative reveal a regulatory scheme worthy of Monty Python and the Bridge of Death. For a detailed analysis and discussion of the due process, deference and First Amendment considerations underlying this issue see The First Amendment and the Emerging Tort of Off-Label Promotion, Washington Legal Foundation, No. 183, April 2013) and “Parallel” State Law Tort Claims or Does the FDA Really Favor Private Enforcement of the FDCA? Federation of Defense and Corporate Counsel, July 2015.

In Amarin, the court observed the landmark significance of Caronia stating that the “Second Circuit’s 2012 decision in Caronia addressed, for the first time, the interplay between the FDCA’s misbranding provisions and the First Amendment. Amarin, supra at 18, emphasis added. The government may have been too clever in its strategy regarding Caronia. If it had read the opinion like the rest of the legal community, it might have recognized the folly in not appealing the Caronia decision. As the Amarin court observed: “Had the FDA believed that Caronia gravely undermined the drug approval process, it should have sought review of that decision.” Id. at 67.

The court in Amarin flatly rejected the position the FDA has been touting for decades— that it was not prosecuting speech but conduct that is evidence of intent. The court ruled that “the FDA may not bring such an action based on truthful promotional speech alone, consistent with the First Amendment.” Id. at 45.

The court further rejected the government’s attempt to rewrite the holding in Caronia:

Where the speech at issue consists of truthful and non-misleading speech promoting the off-label use of an FDA-approved drug, such speech, under Caronia, cannot be the act upon which an action for misbranding is based. Id. at 49.

The Caronia and Amarin cases hold far more than academic importance. These cases sit at the juncture of free speech and preemption. When the FDA cannot prevent a manufacturer from providing truthful scientific and medical information about its product, a manufacturer may have a state law duty to speak and its ability to defeat a claim on preemption grounds is threatened.

TheFDA has never been comfortable balancing due process and First Amendment concerns with its desire to pursue enforcement. The result has been a regime under constant criticism as violating due process guarantees, producing regulatory determinations not worthy of court deference and trampling the First Amendment. Despite the uproar, FDA’s threats of criminal sanctions, debarment and civil penalties overwhelmed industry, and the FDA reaped more than $12 billion in penalties. Nonetheless, the growing assault on the FDA’s stranglehold continued, most notably with the landmark decision in Caronia, a watershed decision that most commentators, except the FDA and former government lawyers, predicted would change how the FDA regulates industry communications. 

The Speech/Preemption Dilemma – What Is That Light At The End Of The Tunnel?

Before applauding the demise of FDA’s stranglehold on the dissemination of truthful scientific information too loudly, manufacturers are well advised to heed the Amarin court’s suggestion to “consult with the FDA before promoting off-label use” Id. at 53 because the light at the end of the tunnel might be a freight train of tort claims. An FDA stamp of approval on a company’s marketing efforts may be a lifeline to preserve a preemption challenge. In what may turn out to be the more frequently quoted statement in Amarin, the court highlighted the duty owed by manufacturers stating:

Amarinbears the responsibility, going forward, of assuring that its communications to doctors regarding off-label use… remain truthful and non-misleading. Id. at 66.

If history is any guide, tort claimants may pose a more formidable threat to manufacturers than the FDA. Only time will tell whether they have won the battle only to lose the war.

At the Drug Device and Biotechnology meeting at the FDCC 2015 annual meeting in Banff we discussed Amarin, Allergan et al. v. Athena, 738 F.3d 1350 (Fed. Cir. 2013), cert. denied (No. 13-1286) (June 29, 2015), and the evolving landscape of preemption for off-label tort claims, particularly in light of the FDA’s permissive approach.  Stay tuned for our discussion of how we might anticipate the road ahead. To be continued.…

Sanctions not warranted where no prejudice was found

Sanctions not warranted where no prejudice was found from corporate designee’s improper and inadequate preparation for deposition.

Osborne v. Mountain Empire Operations LLC, et al, No. 1:2014cv00042 - Document 63 (W.D. Va. 2015), available at

On July 7, 2012, Plaintiff fell out of her wheelchair, while in the care of Defendant’s nursing home.  The fall caused multiple facial fractures, and she allegedly developed pneumonia due to the aspiration of blood from her broken nose. 

During the litigation, Plaintiff sought the deposition of the corporate Defendant’s designee, pursuant to Fed. R. Civ. Proc. 30(b)(6). Plaintiff served a notice of deposition identifying the areas of inquiry to which Defendant did not object.   According to the Motion for Sanctions, filed on May 11, 2015, the corporate designee testified that she had only reviewed the records, had not performed any investigation, and had only spoken with defense counsel.  As a result, she responded approximately 163 times that she did not have personal knowledge and could not answer the questions. Plaintiffs also alleged that defense counsel instructed the witness not to answer properly raised questions, and otherwise coached the witness on how to respond and what particular questions to respond to. 

Two (2) months after the deposition, Plaintiffs filed a Motion for Sanctions, which the Defendant opposed. 

The parties shortly thereafter participated in mediation and settled the case, which included an agreement that Plaintiff would withdraw the motion.

Despite being informed of the settlement, Judge James Jones of the United States District Court of the Western District of Virginia determined that the settlement did not divest the Court of the discretion to render an opinion on the alleged violation of Federal Rules of Civil Procedure.  Citing Perkins v. Gen. Motors Corp., 965 F.2d 597, 600 (8th Cir. 1992), Judge Jones noted that the Court had an independent obligation to enforce the Rules that the parties could not bargain away.

The Court concluded that the Rules had been violated in two (2) ways.   First, the Defendant’s corporate designee was not adequately prepared to respond to the identified areas of testimony, as required by Fed. R. Civ. Proc. 30(b)(6). The Court found that even though the answers were supplied by the client, not the attorney, defense counsel had failed to properly prepare the witness. The counsel had instructed the witness to only rely upon documents, not to talk to potentially knowledgeable employees or conduct any other investigation. 

The Court also found that defense counsel improperly instructed the witness not to respond to certain properly trained questions during the deposition.  The instructions were not properly raised to “preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” Citing Fed. R. Civ. Proc. 30(c)(2).  While the Rules provided a procedure for terminating the deposition for objectionable questions and promptly receiving a ruling from the court, it did not permit the defense counsel to instruct the witness not to answer.  The court also found that defense counsel improperly made speaking objections that had the effect of coaching the witness’s responses.

Despite the violations of the Rules, the Court noted that there was no prejudice to the Plaintiff.  Further, the motion had been filed over two (2) months after the deposition and not long before trial, effectively precluding the court from constructing appropriate remedial sanctions, such as conducting the deposition at Defendant’s cost.  As such, the Court denied the motion. 

Submitted by Marisa A. Trasatti and Gregory Emrick, Semmes, Bowen & Semmes


Rooker-Feldman Doctrine Requires Remand

Murray v. Midland Funding, LLC, Civ. No. JKB-15-0532 (June 23, 2015), was removed from State to Federal court under the Class Action Fairness Act (“CAFA”), codified at 28 U.S.C. § 1332(d) and § 1453.  The Plaintiff filed a Motion to Remand, which was granted in part and denied in part by the Court.  The Court determined that Defendant’s removal was timely under CAFA, but that the Rooker-Feldman doctrine required remand of Counts I andII to State court.  The case proceeded in Federal court as to Counts III, IV, and V, since Burford abstention was not applicable.

Plaintiff filed a Class Action Complaint & Request for Jury Trial in Anne Arundel County Circuit Court.  She asked that the Plaintiff Class be defined as the persons sued by Defendant in Maryland State courts from October 30, 2007 through January 14, 2010 for whom Defendant obtained a judgment for an alleged debt, interest or costs, including attorney’s fees in her favor in an attempt to collect a consumer debt.  Plaintiff alleged that Defendant employed multiple entities and persons in thousands of collection actions for purposes of collecting debts on its behalf in Maryland.  Plaintiff further alleged that Defendant did not have the collection agency license mandated by Maryland law during the relevant Class time period.  Plaintiff alleged that the judgments obtained by Defendant before it received its license were void.  The complaint sought declaratory and injunctive relief for the putative class members and a money judgment for the Plaintiff Class in excess of $75,000 based upon alleged violations of Maryland common law and statutory law.  Plaintiff later amended her Complaint and added a new count for the common law causes of action “money had and received” and in the new count, claimed on behalf of the Plaintiff Class a money judgment of $10,000,000.

Plaintiff advanced two (2) bases for remanding this case to state court. First, she claimed removal was untimely, and second, she argued the Court lacked subject matter jurisdiction because of the Rooker-Feldman doctrine.  Alternatively, Plaintiff requested that, if the Court determined removal was timely and Rooker-Feldman required remand of only Counts I and II, then the Court should remand Counts I and II but stay proceedings on Counts III, IV, and V pending state court resolution of Counts I and II pursuant to Burford abstention.

As a threshold issue, the Court rejected Plaintiff’s argument that removal was untimely.  The basic diversity rule did not apply—the CAFA’s diversity rule applied, which meant that the Complaint only came within CAFA jurisdiction after its sum or value exceeded $5,000,000, if it was a class action in which “any member of a class of plaintiffs is a citizen of a State different from any defendant,” and the total number of members of the aggregated plaintiff classes is at least 100.  28 U.S.C. § 1332(d)(2)(A), (5)(B).  Murray’s original Complaint did not meet these parameters because the amount in controversy fell short.  The pleading did not become removable until it was amended and claimed a money judgment of $10,000,000, and it was timely removed by Defendant within thirty (30) days after that amendment.

The Rooker-Feldman doctrine derives its name from two (2) Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983).  The doctrine is confined to cases brought by state court losers complaining of injuries caused by state court judgmentsrendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.  Such cases are not permitted because they would allow the federal district courts to exercise appellate jurisdiction, when only the Supreme Court may entertain a proceeding to reverse or modify a state-court judgment.  The doctrine is narrowly construed, however; and so, if the federal plaintiff presents some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party, then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion. 

Based on the application of the doctrine, the Court determined that Counts I and II of the Complaint, which were predicated upon the requested declaration of void judgments, should be remanded.  The Complaint’s remaining counts, however, did not invite review and rejection of the allegedly void judgments obtained by Defendant.  Rather, they alleged violations of Maryland law by Defendant in seeking and enforcing the judgments.  Thus, the injury in the remaining counts was not caused by the judgments themselves but by Defendant’s allegedly illegal actions.  They were separable and collateral to the merits of the state court judgment.  Ultimately, the Court remanded only the portion of the case that did not fall within the district court’s original jurisdiction (Counts I and II), and retained jurisdiction over the remaining counts of the Complaint (Counts III, IV, and V).

Finally, the Court addressed Plaintiff’s argument that if the Rooker-Feldman remand of the entire case was unwarranted, then the Court should stay proceedings on Counts III, IV,and V pending the outcome of Counts I and II in State court, under Burford abstention, citing Burford v. Sun Oil Co., 319 U.S. 315 (1943).  The Court determined that a stay of the remaining counts was inappropriate.  Burford abstention is limited to two (2) particular circumstances: (1) when there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar; or (2) where the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.  Neither circumstance was present in this case.  Furthermore, Burford abstention largely applies only in the context of state administrative processes.  Since the case did not involve any state administrative process or orders that could be jeopardized by proceeding to adjudication on the remaining counts, the doctrine was inapplicable. 

In sum, Defendant’s removal was timely, but the Rooker-Feldman doctrine required remand of Counts I andII to State court, while Federal court retained jurisdiction over Counts III, IV, and V.  No attorneys’ fees were awarded to Plaintiff in connection with the partial remand of the case either.

Rooker-Feldman Doctrine Requires Remand of Part of Plaintiff’s Class Action Complaint, but Remaining Counts Will Remain in Federal Court

Murray v. Midland Funding, LLC Civ. No. JKB-15-0532, United States District Court for the District of Maryland (June 23, 2015) Available at:

Submitted by Marisa A. Trasatti and Colleen K. O’Brien, Semmes, Bowen & Semmes

Damages Claim Limited

Damages claim limited due to spoliation in defective design case.

Kettler International, Inc. (“Kettler”) is the manufacturer of patio furniture, including chairs.   Between 2009 and 2013, Kettler sold approximately 13,870 Carlo Model chairs (“chairs”) to Starbucks Corporation (“Starbucks”).  Between 2011 and 2013 Starbucks began to receive complaints that the chairs had caused personal injuries to some of its customers.   While 4,791 chairs had already been disposed of during the course of regular renovations, Starbucks elected to remove all of the remaining chairs from its stores.    On February 17, 2014, Starbucks Legal entered into an agreement to have all of the chairs removed and recycled, but Starbucks asked the vendor to keep 200 chairs in storage.   In April 2014, Starbucks informed Kettler of its intent to institute legal proceedings, to which Kettler responded by alerting Starbucks of its obligation to “preserve every chair upon which a claim is being made.”  Thereafter, Starbucks destroyed 2,073 chairs, including 489 chairs after servicing Kettler with the lawsuit.  

On May 1, 2014 Kettler filed a three count complaint for a declaratory judgment that (1) it had not breached any warranty; (2) it had not breached any contractual term; and (3) that Starbucks was not entitled to rescission, to which Starbucks filed an Answer and Counterclaim.   Kettler then moved for sanctions associated with Starbucks’ alleged spoliation of chairs and requested that the Court limit Starbucks’ claims to only those chairs that had not been destroyed.   The Court conducted a hearing on the motion, and thereafter held that “Starbucks’ conduct amounted to spoliation” because after anticipating litigation, Starbucks destroyed over 7,000 chairs.   The court limited Starbucks’ counterclaim to the 200 remaining chairs, and one chair which was part of a personal injury claim.  Starbucks filed a Motion to Certify Order for Immediate Interlocutory Appeal and for Stay Pending Appeal.  Starbucks argued that the issues involved the design of the chairs for which the destroyed chairs were not necessary.  

In his written order, District Court Judge Morgan denied Starbucks’ motion.  The judge first reviewed the law governing interlocutory appeals, noting that 28 U.S.C. § 1292(b) only applied to controlling questions of law with substantial ground for a difference of opinion, and was to be invoked sparingly.  In comparing the facts to Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76 (3d Cir. 1994) and Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001), the Court noted that Starbucks’ actions were more akin to those in Silvestri, where the buyer had destroyed the defective vehicle after suit was anticipated in a deliberate act, not accidental or incidental as in Schmid.   The Court held that under United States v. Shaffer Equipment Co., 11F.3d 450, 462-63 (4th Cir. 1993), Starbucks’ actions in willfully destroying 99 percent of the evidence and retaining an unrepresentative sample, merited limitation of the recoverable damages.  This finding was based on the facts of the case and not a question of pure law.  Starbucks’ Motion to Certify Order for Immediate Appeal and for Stay Pending Appeal was denied.

Kettler Int’l, Inc. v. Starbucks Corp., 2015 U.S. Dist. LEXIS 52310 (VA April 14, 2015) (not yet published), available at:

Submitted by Marisa A. Trasatti and Gregory Emrick, Semmes, Bowen & Semmes

Violation of Civil Rights

American Retailer Found in Violation of Title VII of the Civil Rights Act of 1964 for Discriminating based on Religion

In EEOC v. Abercrombie & Fitch Stores, Inc. No. 14–86 (Supreme Court of the United States, June 1, 2015) Defendant corporation, Abercrombie & Fitch Stores, Inc., was found guilty of discriminating against the Plaintiff, Samantha Elauf. The Defendant adhered to a “look” policy, which prohibited employees from wearing black clothing and caps. In 2008, the Plaintiff, a woman who wears a headscarf in accordance with her religious beliefs, applied for a job at the Defendant corporation. The interviewer found the Plaintiff to be qualified for hire based on her interview and application. However, the interviewer reached out to a district manager to clarify whether the head scarf would be banned under the corporation’s “look” policy. The interviewer also informed the manager that she believed the headscarf was worn for religious reasons. The district manager indicated that the headscarf would violate the “look” policy and thus instructed the interviewer to not hire the applicant. Plaintiff was never made aware of this policy and was declined a position with the employer.

Plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) and the EEOC filed suit against Defendant. Defendant claimed the “look” policy was not religiously discriminatory because the ban applied to all types of head coverings. The Defendant also claimed that they were not made aware of a reasonable accommodation the Plaintiff would require because she did not ask for any accommodations.

It is a violation of Title VII of the Civil Rights Act of 1964 for an employer to discriminate against an employee or applicant based on that employee’s or applicant’s protected status. These protected statuses include race, color, religion, sex, or national origin. An employer violates the law if he fails to accommodate an employee’s or applicant’s religious practice by making that person’s religious practice, confirmed or not, a factor in the employer’s decision. Further, under Title VII of the Civil Rights Act of 1964 an employer must provide “reasonable accommodation without undue hardship.” This Court addressed whether that reasonable accommodation must be provided even if an applicant or employee does not request such accommodation.

The Court held that for a plaintiff to prevail in a disparate-treatment claim under Title VII of the Civil Rights Act of 1964, an applicant must show that his need for an accommodation was a motivating factor in the employer’s decision. The applicant is not required to show that the employer actually knew of the applicant’s need. Further, the employer could be guilty of violating the law “even if he has no more than an unsubstantiated suspicion that accommodation would be needed.” Thus, motive and knowledge are found to be separate and distinct concepts.

The district court held in favor of the EEOC. The Tenth Circuit reversed and found summary judgment should have been granted in favor of Defendant corporation because the Plaintiff did not raise that she needed a reasonable accommodation for her religious practice and thus, Defendant did not have actual knowledge of Plaintiff’s need for an accommodation. In the 8-1 opinion, delivered by Justice Scalia in which Roberts, C. J., Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined, the Court reversed and remanded the Tenth Circuit decision.

EEOC v. Abercrombie & Fitch Stores, Inc.No. 14–86 (Supreme Court of the United States, June 1, 2015)  available at:

Submitted by Marisa A. Trasatti and Nida Kanwal, Semmes, Bowen & Semmes                  

Contractual damages for Elevator Defect

Hotel patron has no right to contractual damages for elevator defect causing injury. On June 26, 2012, Cheryl Freeman was a guest at a Doubletree hotel.   While riding the hotel elevator, the elevator became disabled and stopped between two (2) floors.  The Doubletree employees opened the doors and encouraged the occupants to jump to the floor several feet below.  When Freeman jumped, she landed on the floor and her knees buckled, causing her to fall onto the floor and suffer personal injuries.   At the time, Doubletree had a contract with Atlantic Blueridge Elevator Company (“Atlantic”) for the repair and maintenance of the elevators (“Contract”).   

Freeman filed suit against both Doubletree by Hilton (“Doubletree”) and Atlantic, in the Circuit Court of Norfolk seeking recovery for her personal injuries.   Freeman alleged that she was a third-party beneficiary of the Contract, and was therefore entitled to recover from Atlantic for its failure to maintain and repair the elevator properly and reasonably.  Atlantic filed a demurrer, and Freeman was permitted to amend her complaint on three (3) separate occasions, each time to amend the allegations in support of the breach of contract claim.  Atlantic demurred as to the Third Amended Complaint (“Complaint”), arguing that Freeman failed to plead sufficiently that Atlantic breached the Contract, failed to plead sufficiently her claim as a third-party beneficiary, and that the injuries pled were not contract damages but were the result of the intervening cause of the Doubletree employees.

The Trial Court first reviewed the Complaint and held that Freeman had pled sufficiently the breach of contract claim.  The Complaint alleged that Atlantic had a duty to repair and maintain the elevators that arose from the contract, and failed to satisfactorily complete those duties.   

The Court, however, noted that Freeman had not pled sufficiently that she was a third-party beneficiary of the Contract.   The Court noted that the “essence of a third-party beneficiary’s claim is that others have agreed between themselves to bestow a benefit upon the third party but one of the parties to the agreement fails to uphold his portion of the bargain.” Citing Copenhaver v. Rogers, 238 Va. 361, 367, 384 S.E.2d 593, 596 (1989).  Third-Party beneficiary status does not exist if the benefit is only incidental to the Contract, not “clearly and definitely” agreed to in the Contract.   The Court held that Freeman had failed to plead facts that showed that the Contract, which was attached to the Complaint, was intended to bestow a benefit on Freeman.  “Absent express language in the Contract demonstrating that the contracting parties intended Freeman to be a contractual beneficiary, this Court cannot, based on the facts alleged and in light of the Contract, […] find that Freeman sufficiently pleaded that she is a third-party beneficiary of the Contract.”  

Moreover, even if she had pled adequately her status as a third-party beneficiary, she was not entitled to recovery under the contract.  The alleged damages that she sustained were not a result of the failure to maintain the elevators, but were the result of the Doubletree’s employees’ actions, over which Atlantic had no control.  Freeman was also barred from seeking tort damages for the breach of contract claim, since there were no facts that supported the breach of a common law duty by Atlantic related to the Contract.   

The Court sustained the demurrer, dismissing the breach of contract claim, and did not grant Plaintiff leave to file another amended complaint.  

Freeman v. Doubletree by Hilton, 2015 Va. Cir. LEXIS 29 (unpublished), available at:

Submitted by Marisa A. Trasatti and Gregory Emrick, Semmes, Bowen & Semmes






Social Media Evidence

In a trilogy of cases, Albert Sublet IV v. State, Tavares D. Harris v. State, and Carlos Alberto Monge-Martinez v. State (Maryland Court of Appeals, April 23, 2015), Maryland’s highest court addressed the authenticiation of social media evidence and confirmed that the current rules of evidence can be applied to this quickly developing source of evidence.  The Court held that in order to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be.  In Sublet, the trial court did not err in excluding the admission of the four (4) pages of the Facebook conversation.  In Harris, the trial court did not err in admitting “direct messages” and “tweets” in evidence.  In Monge-Martinez, the trial court did not err in admitting the Facebook messages authored by the Defendant.

The Court revisited its prior seminal case, Griffin, where the Court stated that authentication of social networking evidence (MySpace posts) can pose significant problems, "because anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password".  In Griffin, the Court rejected the mere printout of the screenshot in issue as authentic, because the lead investigator, who had created the document, lacked any knowledge about ownership of or who created the profile.  The Court had suggested, however, that three (3) non-exclusive means of authentication may be available: 1) asking the purported creator if she indeed created the profile and also if she added the posting in question; 2) searching the computer of the person who allegedly created the profile and posting and examining the computer's internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question; and 3) obtaining information directly from the social networking website to link the profile and entry to the person who created it.  In this opinion, the Court further expanded on authentication methods.

In Sublet, the proponent of the evidence attempted to authenticate Facebook postings by having the alleged author admit to the profile and the posts. The alleged author, however, testified that she gave out her login name and password to others who would access her page and write things on it.  She denied writing some of the posts that defense counsel was attempting to attribute to her.  No showing was made from which a reasonable juror could have found the Facebook pages to be authentic and therefore, the Court found no error in the trial judge refusing to admit the Facebook postings into evidence.  

In Harris, the State recovered relevant Twitter evidence (direct messages and public tweets) from two (2) of the Defendant's cellular phones.  During discovery, the State notified the defense that it intended to call a detective as an expert witness in the field of forensic examination of cell phones, to testify about analysis and interpretation of digital evidence recovered during the investigation, including the direct messages.  At trial, the State proffered that the detective would testify that, through the use of software, he had retrieved the direct messages from the phone and determined the participants in the conversation, and that they would move into evidence the forensic examination report of the phone the detective had compiled, which included the participants, the content of the conversation, and the times the direct messages were sent and received by the phone.  The trial judge admitted the Twitter evidence because, along with the detective's proffer, there was independent verification of the Twitter account via another witness.  Further, the substance of the conversation referenced a plan to avenge someone, which had only just been hatched in response to events that occurred that same day.  That the plan subsequently came to fruition the following day also indicates that the direct messages were written by someone with knowledge of and involvement in the situation, which involved only a small pool of individuals.  Public tweets from the other phone were also admitted, because they were authored at the same time as the direct messages that had just been authenticated and contained content that could have been only created by a "few people," and the picture on the account was of the Defendant.  The appellate court determined that the direct Twitter messages were authentic and properly admitted.  Moreover, the public tweets were made contemporaneously to the direct messages which were already authenticated, and a reasonable juror could also have found that the public tweets were also authentic.

In Monge-Martinez, the State sought to introduce Facebook messages received by an assault victim and sent by the Defendant reflecting his remorse for his actions.  The victim identified the exhibits as Facebook messages the Defendant wrote to her while she was in the hospital being treated for her injury.  The exhibits were screenshots of the victim's phone displaying the Facebook messages, which the trial judge admitted into evidence.  On appeal, Defendant argued that the messages should not have been admitted because there was no identifying information from the Facebook profile, such as date of birth, nor was there testimony connecting him to authorship of the messages.  The State argued that there was circumstantial evidence connecting Defendant to the messages, because the victim, who had dated him for a year, could attest that he wrote the messages and that the date-time stamps indicated that the messages were sent soon after the stabbing.  The appellate court agreed with the State and observed that the lack of biological information on the evidence, does not by itself, prevent authentication, because the inquiry is context specific, and here, the distinct characteristics of the messages in their context also supported the notion that they were authored by Defendant.  In addition to the social media messages, there were other letters written to the victim by the Defendant expressing remorse, and all messages were in Spanish, which was Defendant's native language, and only a few people were even aware of the stabbing incident.  Therefore, the evidence was properly admitted.

Following Griffin, Maryland High Court Expands on Techniques to Authenticate Social Media Evidence

Albert Sublet IV v. State, No. 42
Tavares D. Harris v. State, No. 59
Carlos Alberto Monge-Martinez v. State, No. 60
(Court of Appeals of Maryland, April 23, 2015), available at:

Submitted by Marisa A. Trasatti and Colleen K. O'Brien, Semmes, Bowen & Semmes

US District Court Examines The Rooker-Feldman Doctrine

U.S. District Court Examines The Rooker-Feldman Doctrine Kathleen Morgan v. Geoffrey Scott, No.14-1319 (United States District Court for the District of Delaware, March 19, 2015), available at:

In Kathleen Morgan v. Geoffrey Scott, a case involving a motion to dismiss a lawsuit brought by a plaintiff seeking to reverse and remand decisions of the Delaware State Courts, the United States District Court for the District of Delaware concluded that it lacked subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and the Rooker-Feldman doctrine espoused by the Supreme Court in  Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Thus, Judge Sue L. Robinson granted the Defendant's motion to dismiss.

By way of factual background, the parties had known each other for several decades, and prior to this case, the parties had been involved in litigation in the Delaware State Courts. On December 6, 2011, Defendant Geoffrey Scott ("Defendant") filed suit against Plaintiff Kathleen Morgan ("Plaintiff") and Plaintiff's business entity, Turkeys Inc. ('Turkeys"), in the Superior Court of the Stateof Delaware for New Castle County, raising claims including breach of contract, fraud,negligent and intentional misrepresentation, fraudulent inducement, and mutual mistake ("the Scott action"). The claims in the Scott action arose from numerous loans that Defendant had made to Plaintiff and Turkeys. The Scott action went to trial in September 2013, and at the close of evidence, Defendant moved for judgment as a matter of law as to his claim of mutual mistake. The Superior Court granted Defendant's motion and ordered Plaintiff and Turkeys to pay restitution to Defendant in the amount of $300,000.

Plaintiff appealed and, on September 22, 2014, the Delaware Supreme Court affirmed the Superior Court's order granting Defendant's motion for judgment as a matter of law. On March 7, 2014, while the Scott action was still pending on appeal, Plaintiff had filed a lawsuit against Defendant in the Superior Court of the State of Delaware for New Castle County, ("the Morgan action"). Defendant moved to dismiss the Morgan action pursuant to Superior Court Rules 12(b)(6) and 13(a), and on July 11, 2014, the Morgan action was dismissed with prejudice.

Plaintiff then filed the lawsuit at issue, asking the U.S. District Court for the District of Delaware to reverse and remand the October 17, 2013 Superior Court judgment in the Scott action. Plaintiff alleged that, as a pro se litigant, she was denied the full extent of judicial process in the Scott action, and that Defendant had only filed the Scott action "for the "ill-gotten motive of obtaining judgment for use" in a different lawsuit. Defendant moved for dismissal on the grounds that Plaintiff's claims in the case before the court arose out of the subject matter of claims previously adjudicated in Delaware State Courts.

The court began its analysis by discussing to the Rooker-Feldman doctrine, which the court determined to be "dispositive of this case." First, the court noted that the Rooker-Feldman doctrine "refers to principles set forth by the Supreme Court in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)." The court further noted that because the Rooker-Feldman doctrine "divests the court of subject matter jurisdiction, it may be raised at any time by the court sua sponte." Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 419 (3d Cir. 2003); Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 77 (3d Cir. 2003). The court then explained that federal district courts "are courts of original jurisdiction and have no authority to review final judgments of a state court in judicial proceedings." Rooker Fidelity Trust Co., 263 U.S. 413 (1923); see Power v. Department of Labor, 2002 WL 976001 (D. Del. 2002).The court further explained that the Rooker-Feldmandoctrine "prevents the lower federal courts from exercising jurisdiction over cases brought by 'state-court losers' challenging 'state-court judgments rendered before the district court proceedings commenced.'" Lance v. Dennis, 546 U.S. 459, 460 (2006) (citations omitted).         

Next, the court discussed the facts of the case. First, the court noted that Plaintiff took exceptions to decisions made in the Scott action, specifically the Superior Court's October 17, 2013 Order that granted Defendant's motion for a judgment as a matter of law against Plaintiff in the sum of $300,000, and the September 22, 2014 decision of the Delaware Supreme Court to affirm the Superior Court's October 17, 2013 Order. The court further noted that Plaintiff was asking the court to determine that those State court rulings were erroneously entered and to grant relief by reversing and remanding their decision.

The court explained, however, that the Rooker-Feldman doctrine prohibited the court from maintaining subject matter jurisdiction over a complaint "which effectively s[ought] to reverse and remand orders and judgments entered by the Delaware courts." The court further explained that Plaintiff's complaint was barred because the relief Plaintiff sought would require:"(1) the federal court [to] determine that the state court judgment was erroneouslyentered in order to grant the requested relief, or (2) the federal court [to] take an actionthat would negate the state court's judgment," neither of which the court is permitted to do under the Rooker-Feldmandoctrine.In re Knapper, 407 F.3d 573, 581(3d Cir. 2005).For those reasons, the court granted Defendant's motion to dismiss the complaint on the grounds that it lacked subject matter jurisdiction pursuant to the Rooker-Feldman doctrine and Federal Rule of Civil Procedure 12(b)(1).

Submitted by Marisa A. Trasatti and Richard J. Medoff, Semmes, Bowen & Semmes

Insurance policy void ab initio where not owner occupied

On August 2, 2011, Mr. and Mrs. Harris purchased real property located at 2700 Classen Avenue, Baltimore, Maryland in a foreclosure sale for $7,500. Approximately nine months later, the Harrises contacted Jayne Clark, an insurance agent working with Encompass Home and Auto Ins. Co., through whom the Harrises had purchased insurance for their vehicles and primary residence. At that time, the Harrises indicated they had performed substantial renovations to the property and the interior had been updated. Clark viewed the property using Google Street View and observed that the roof was bent and the stairs were in need of repair.  Mr. Harris indicated that the roof had been repaired but the stairs continued to need repair.  The Harrises also indicated that it was their intention to move to this property and make it their primary residence. At no time did the Harrises indicate that the property had been purchased for $7,500. Based on these representations, Clark issued an owner-occupied insurance policy application with a replacement value limit of $180,000, which the Harrises signed and returned same on or about June 8, 2012. Encompass required as part of its underwriting both that the policy be owner occupied and that the amount of the policy not exceed 70 percent of the market value. 

Eleven (11) days later, on June 19, 2012, a fire occurred at the property, for which the Harrises submitted a claim on or about June 23, 2012.  

During the course of the investigation of the fire, concerns were raised regarding the Harrises’ claim for the fire loss.  The concerns were based on the fact that 1) the property was a “newly added” endorsement; that the property was vacant and unoccupied at the time of the fire; that the property was void of all contents; that the insurance coverage for the property had been acquired approximately one year after the purchase of the property, but only about two (2) weeks before the fire; and that the cause of the fire was determined to be an apparent intentional incendiary. The matter was forwarded to Encompass’s Special Investigation Unit, who further determined there was no furniture or personal property in the property at the time of the loss and that the heat pump was missing.  Further, during an interview, Mr. Harris indicated that the utilities had never been turned on at the property and there had never been a decision to move to the property to make it the primary residence.  As a result of the investigation, Encompass issued a denial of coverage letter and a separate “Material Misrepresentation” Notice, which voided the policy.

Encompass filed suit in the United States District Court for the District of Maryland seeking a declaratory judgment that the insurance policy was void ab initio.  The Harrises filed a counterclaim for breach of contract for not covering the fire loss.  The matter was forwarded to Magistrate Judge Sullivan who conducted a one (1) day bench trial.  Judge Sullivan first reviewed the Court’s jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201(a), which permitted the court to entertain a declaratory judgment action “when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and when it will terminate and afford relief from uncertainty, insecurity, and controversy giving rise to the proceeding.” Quoting Penn America Ins. Co. v. Coffey, 368 F.3d 409 (4th Cir. 2004).   After determining that Maryland law applied, Judge Sullivan evaluated the insurer's burden to succeed in voiding an insurance policy ab initio. Where the insurer relied upon a material misrepresentation in the application, the insurer may void the policy ab initio. The Court must determine 1) that there was a misrepresentation and 2) that the misrepresentation was material to the risk assumed by the insurer.  Materiality is determined by “whether reasonably careful and intelligent men would have regarded the fact, communicated at the time of the effecting the insurance, as substantially increasing the chances of the loss insured against.”  Quoting Metro. Life Ins. Co. v. Samis, 172 Md. 517 (1937). Materiality may affect both the estimation of scope of the insurance and whether to issue a policy in the first place.   In this case, Judge Sullivan determined that the insureds misrepresented the value of the property and its status as owner-occupied, both of which were material to the underwriting process for Encompass, as stated in its guidelines. The Court further held that Encompass had no obligation under the circumstances to conduct an investigation before issuing the policy, and had not waived its right to void the policy ab initio. Based on this finding, the Court held that Encompass was not liable for breach of contract.  The Court then issued a declaration that the policy insuring the Harrises’ property was void ab initio.  

Insurance policy void ab initio where not owner occupied. Encompass Home & Auto Ins. Co. v. Harris (D. Md. March 17, 2015) available at:

Submitted by Marisa A. Trasatti and Gregory Emrick, Semmes, Bowen & Semmes

Membership of LLC determines citizenship for diversity

This action was a derivative action brought by Christopher Bunnell, on behalf of OpenOnward, LLC, a software company focused on allowing scientists to post protocols and detailed notes of experiments online for use and review by other scientists.  OpenOnward was formed by Bunnell, a software developer, and Carlo Rago, a cellular and molecular scientist.  After the formation of OpenOnward, Rago sought to develop software to streamline access to research and funding in an effort to aid David Schultz, whose son has Duchenne Muscular Dystrophy, and who was the head of Ryan’s Quest, which is part of Duchenne, an unincorporated organization of corporate entities, working together for common business interests. OpenOnward began discussion with Duchenne to solicit investments for the development of the software, and members of Duchenne provide OpenOnward with $65,000 of grant funding.  In May 2011, Bunnell and Rago submitted a provisional patent application to the USPTO for the new software, and listed Bunnell and Rago as the inventors.  In March 2012, Duchenne published a news release indicating that it had been given access to the patent pending intellectual property, for which Rago subsequently acknowledged he authorized the license, but for which OpenOnward was never compensated.  By October 2012, the software had facilitated $6,000,000.00 in funding.  Shortly thereafter, Rago became a salaried employee of Duchenne, with contractual provisions that required that he provide open access to all OpenOnward technology without compensation to OpenOnward.

In April 2014, Bunnell brought the derivative suit against various Duchenne defendants (“Duchenne”) and Rago, for breach of contract and violation of the Maryland Uniform Trade Secrets Act.  Duchenne removed the action to the Federal Court based on Diversity jurisdiction, and then moved to dismiss the complaint for failure to state a claim.  Bunnell opposed the motion to dismiss and filed an amended complaint, which Duchenne opposed.  On September 11, 2014, Bunnell moved for default against Rago, who had not responded to the original complaint. Rago then moved to dismiss the complaint for failure to state a claim, which Bunnell opposed.

The Court noted that prior to addressing any of the pending motions, it had to determine whether it had a proper basis to exercise subject matter jurisdiction.  The matter was a derivative claim for an LLC.  “An LLC is a citizen of the states of which its members are citizens.”  Bunnell, 2015 U. S. Dist. LEXIS 26472, 8, quoting Gen. Tech. Applications, Inc. v. Exro Ltda,, 388 F.3d 114, 120 (4th Cir. 2004).  As such, OpenOnward, the party on whose behalf Bunnell brought the claim, had the citizenship of its members, Bunnell and Rago.  While the Court noted that it was unclear if OpenOnward was a plaintiff or defendant, it was irrelevant to the analysis.  As there were members on both sides of the matter, it was impossible for there to be diversity, as it would always share common citizenship with the opposing member.  Accordingly, the matter was remanded to the Circuit Court for Baltimore City.  

Bunnell v. Rago, 2015 U.S. Dist. LEXIS 26472, 1 (D. Md. Mar. 4, 2015), Available at:

Submitted by Maria A. Trasatti and Gregory Emrick, Semmes, Bowen & Semmes

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