Katz, Abosch, etc., P.A. v. Parkway Neuroscience

321 A.3d 50, 487 Md. 632

• Court: Court of Appeals of Maryland
• Decided: August 13, 2024
• Docket: 30o/22
• Status: Published

Opinion

* IN THE KATZ, ABOSCH, WINDESHEIM, * GERSHMAN & FREEDMAN, P.A., et SUPREME COURT al. * OF MARYLAND v. * No. 30 PARKWAY NEUROSCIENCE AND * SPINE INSTITUTE, LLC September Term, 2022 *

ORDER

WHEREAS, in an Opinion issued on August 30, 2023, joined by five Justices, the

Supreme Court of Maryland held that “[t]he trial court, in its gatekeeping role under

[Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Rochkind v.

Stevenson, 471 Md. 1 (2020)], acted within its discretion in analyzing the data and other

inputs and assumptions that implicated the reliability of [Respondent’s proposed expert

witness Meghan] Cardell’s methodology” but that “the court improperly considered Ms.

Cardell’s June 2021 normalizing adjustments relating to trauma/on-call payments as

reflecting on the reliability of Ms. Cardell’s methodology”;

WHEREAS, the Court determined, in light of its holdings, that “the fair and prudent

course of action” was “to order a limited remand to the circuit court under Maryland Rule

8-604(d)(1) so that the trial court may decide to admit or exclude Ms. Cardell’s testimony

without consideration of her June 2021 normalizing adjustments as reflecting on the

reliability of Ms. Cardell’s methodology”;

WHEREAS, the Court directed that, on remand, “[t]he trial court may make that

decision based on the existing record or, in its discretion, may allow further examination of Ms. Cardell and/or other witnesses before issuing a new ruling[,]” and further directed

that, “[i]n the trial court’s discretion, it also may permit the parties to submit additional

written and oral arguments prior to issuing its ruling”;

WHEREAS, the Court further directed that “[t]he trial court should provide a

written explanation of its decision”;

WHEREAS, the Court further stated: “We shall retain jurisdiction over this case”

and that, “[a]fter the trial court issues its decision on remand, we shall issue an appropriate

Order”;

WHEREAS, the mandate issued by Court stated: “JUDGMENT OF THE

APPELLATE COURT OF MARYLAND VACATED; CASE REMANDED TO THAT

COURT WITH THE DIRECTION TO REMAND THE CASE TO THE CIRCUIT

COURT FOR HOWARD COUNTY, WITHOUT AFFIRMING OR REVERSING THE

JUDGMENT OF THE CIRCUIT COURT, FOR FURTHER PROCEEDINGS

CONSISTENT WITH THIS OPINION. COSTS TO ABIDE.”;

WHEREAS, after the case was remanded to the Circuit Court for Howard County,

the Honorable Richard S. Bernhardt, who had initially excluded Ms. Cardell’s testimony,

conducted further proceedings, as directed by the Supreme Court of Maryland;

WHERAS, Judge Bernhardt on remand permitted the parties to submit additional

written and oral arguments, and the parties provided Judge Bernhardt with such additional

written and oral arguments in support of their positions;

WHEREAS, on June 18, 2024, Judge Bernhardt issued a Memorandum Opinion in

which he stated, among other things: “This Court has reviewed the transcript of the hearing

2 on June 30, 2021, and considered the written and oral supplementation by the Plaintiffs

and the Defendants. The Court has carefully removed from any consideration Ms. Cardell's

June 2021 normalization. This Court still views Ms. Cardell’s testimony as speculative and

containing unreliable and ipse dixit ‘judgment calls’.”;

WHEREAS, in his Memorandum Opinion, Judge Bernhardt further stated that “the

Plaintiff has not produced sufficient evidence that the before-and-after methodology as

applied by Ms. Cardell to a mixed medical practice limited liability company with a small

number of revenue generators, as is the case here, is reliable” and further stated:

“Therefore, for the reasons stated above this Court excludes [Ms.] Cardell as an expert

witness for the Plaintiff.”;

WHEREAS, in a separate Order signed by Judge Bernhardt on June 18, 2024, Judge

Bernhardt stated:

The above captioned matter was before this Court on remand from the Supreme Court of Maryland. For the reasons stated in this Court’s Memorandum Opinion issued June 18, 2024, and this Court’s conclusion that its decision announced on June 30, 2021 shall not change after consideration of the evidence and issues as directed by the Supreme Court of Maryland, it is this 18" day of June, 2024

ORDERED, that Plaintiffs’ proposed expert witness, Meghan Cardell, is excluded.

WHEREAS, on July 17, 2024, Petitioners and Respondent filed a Joint Motion to

Supplement Record (with Report on Parties’ Positions on Further Proceedings);

WHEREAS, on August 1, 2024, the Court granted the parties’ joint motion to

supplement the record; and

3 WHEREAS, the Court has considered the parties’ positions on further proceedings

as set forth in their July 17 report, it is this 13th day of August, 2024,

ORDERED, by the Supreme Court of Maryland, a majority of the Court concurring,

that:

1. This case shall be remanded to the Appellate Court of Maryland with instruction

to affirm the judgment of the Circuit Court of Howard County in favor of

Petitioners;

2. Costs in the Supreme Court of Maryland and the Appellate Court of Maryland shall

be paid by Respondent; and

3. The Mandate shall issue forthwith.

/s/ Matthew J. Fader Chief Justice

Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2024.08.13 15:31:36 -04'00'

Gregory Hilton, Clerk