Derek M. Stikeleather
Mr. Stikeleather is a partner with the firm, practicing primarily in the areas of appellate advocacy and complex litigation with an emphasis on product liability, personal injury, and class action defense. He has represented several medical device and pharmaceutical manufacturers, including Pfizer Inc, DENTSPLY International, Inc., DePuy Orthopaedics, and Hanger Prosthetics & Orthotics in federal and state court proceedings. A dedicated writer, he has briefed and argued appeals on behalf of physicians and several prominent Maryland and D.C. hospitals before the Court of Appeals of Maryland, the District of Columbia Court of Appeals and the United States Court of Appeals for the Fourth Circuit. The legal-ratings publication Super Lawyers recognized him as one of eight Maryland “Super Lawyers” for appellate practice in 2017.
From 2004 to 2005, Mr. Stikeleather served as a Law Clerk to the Honorable William M. Nickerson in the United States District Court for the District of Maryland. Before joining the firm in 2007, Mr. Stikeleather worked for two years at a prominent international law firm based in Baltimore.
Before becoming an attorney, Mr. Stikeleather taught Advanced Placement United States History and coached varsity hockey for eight years, the last six years at St. Paul’s School in Baltimore. Through law school and in practice, he has been active in numerous programs assisting at-risk students, teachers and schools.
Teaching and Writing Activities
Mr. Stikeleather currently serves as the Fourth Circuit editor of the Defense Research Institute’s on-line periodical DRI Daubert On-line, which tracks developments in the federal circuits’ application of the landmark Daubert decision on standards for the admission of expert-witness testimony.
Mr. Stikeleather is a member of DRI’s Appellate Advocacy Committee.
He is also an editor and frequent contributor to the Maryland Appellate Blog.
In 2006, Mr. Stikeleather served as an Adjunct Professor of Legal Writing at the University of Maryland School of Law.
Selected Reported Cases
United States Court of Appeals for the Fourth Circuit
McEwen v. University of Maryland, (4th Cir. 2010). Briefed and argued matter to the United States Court of Appeals for the Fourth Circuit to affirm summary judgment in U.S. District of Maryland, based on inadmissibility of medical causation expert testimony under Daubert. Plaintiff’s experts were barred from offering testimony that administration of certain anti-stroke medications would have prevented plaintiff from suffering a stroke two days later. Mr. Stikeleather had successfully argued in the District Court that, without admissible medical causation testimony against them, defendants were all entitled to summary judgment in their favor.
Quillin v. Fleet, (4th Cir. 2009). Co-authored winning appellate brief to affirm prior summary judgment in United States District Court for the District of Maryland, based on plaintiff’s failure to timely file complaint under Maryland’s discovery rule. Plaintiff argued that he was unable to make a connection between his renal failure and use of defendants’ phospho-soda product outside the limitations period.
Court of Appeals of Maryland
Univ. of Md. Medical System Corp. v. Muti, 44 A.3d 380 (Md. 2012). Briefed and argued high court appeal addressing consequences of plaintiffs' failure to include all primary beneficiaries as plaintiffs or use plaintiffs in statutory Maryland wrongful death claim.
Tyler v. College Park, 3 A.3d 421 (Md. 2010). Represented the City of College Park in its successful defense of the constitutionality of its rent-control ordinance. Co-authored winning brief to the Court of Appeals of Maryland and successfully moved in the Court of Special Appeals to lift an injunction pending appeal to allow immediate enforcement of the ordinance. Precedential, published opinion affirms Maryland’s constitutional standard for rational-basis review of legislative action.
Lanay Brown v. Daniel Realty, 976 A.2d 200 (Md. 2009). Authored winning brief to Court of Appeals of Maryland, which affirmed Baltimore City Circuit Court’s jury verdict for defendant property owner in lead paint case. In a precedential opinion, the high court agreed with the defense argument that evidence was properly admitted and that evidentiary errors raised by the plaintiff on appeal were not properly preserved at trial. The Court further agreed that evidentiary errors raised on appeal were not prejudicial.
Court of Special Appeals of Maryland
Martinez v. Johns Hopkins Hosp., 212 Md. App. 634 (2013). Authored winning brief that prompted appellate court to vacate the largest medical malpractice verdict in Maryland history. In 2012, a Baltimore City jury awarded $55 million to a single birth-injury plaintiff. Even after application of Maryland’s statutory cap on non-economic damages, the award still exceeded $28 million. Mr. Stikeleather was instrumental in developing and executing post-trial briefing strategy and selecting appellate issues. He assumed responsibility for writing the briefs that ultimately persuaded the appellate court to vacate the verdict and order a new trial on the grounds that the trial court’s exclusion of evidence of the negligence of a non-party denied the hospital a fair trial. Mr. Stikeleather also authored the briefs that successfully opposed the plaintiffs’ petition for certiorari in the Maryland Court of Appeals and the subsequent motion and amicus brief requesting reconsideration of the denial of certiorari.
Streaker v. Boushehri, 230 Md. App. 101 (2016). Authored winning brief to Court of Special Appeals, which established that Maryland’s “20% Rule” requires parties in personal-injury cases to affirmatively prove their compliance with the rule. By statute, to prevent the use of “Hired Gun” professional witnesses in such cases, Maryland’s 20% Rule bars testimony from medical experts who devote more than 20% of their professional time to activities that directly involve testimony in personal-injury claims. But many expert witnesses had successfully dodged the 20% Rule by obfuscating, testifying inaccurately about their activities, and refusing to produce records that would substantiate (or refute) their signed certificates of compliance. The Streaker panel’s published opinion holds that a trial court is well within its discretion to find that such an expert has not shown compliance with the 20% Rule.
District of Columbia Court of Appeals
Phillips v. Fujitec, 3 A.3d 324 (D.C. 2010). Authored winning briefs in Superior Court and the District of Columbia Court of Appeals affirming summary judgment for all defendants, who were sued for negligence after a fatal accident when plaintiff’s decedent attempted to climb out of a stalled elevator. Precedential, published opinion clarified important points of District of Columbia law on contributory negligence and assumption of the risk.
Davis v. Georgetown Hospital, 5 A.3d 22 (D.C. 2010). Authored winning brief to District of Columbia Court of Appeals affirming jury verdict for defendant healthcare providers alleged to have been negligent in care of severely disabled patient. Plaintiff argued on appeal that trial court erred in denying him leave to amend complaint to raise new claims and rejecting his proposed jury instructions.
Class Action and Other Litigation Matters
Weinstat v. Dentsply International. Mr. Stikeleather was part of trial team that successfully defended dental device manufacturer in a three-week class action trial in San Francisco Superior Court. Plaintiffs challenged the adequacy of warnings for Class II prescription medical device, alleging violations of the California Unfair Competition Law and breach of express warranty. During the bench trial and in post-trial briefing and argument, Mr. Stikeleather successfully argued that part of plaintiffs’ claim, which sought to enforce FDA regulations, was preempted under Buckman. On the merits, the court found in defendant’s favor on all counts.
Center City Periodontists, P.C. v. Dentsply International (E.D. Pa. 2013). Mr. Stikeleather defends the same dental device manufacturer in an ongoing class action in Pennsylvania federal court. In 2013, he successfully obtained dismissal of claims for negligence and alleged violations of the New Jersey Consumer Fraud Act. The opinion is believed to be the first to hold that the NJCFA does not apply to the sale of prescription medical devices, which are not “merchandise” available to the public under the Act.
Hildebrand v. Dentsply International, 264 F.R.D. 192 (E.D. Pa. 2010) (court dismissed case in 2011). Represented manufacturer in the defense of a multi-state federal class action brought in 2006 in the Eastern District of Pennsylvania. Court dismissed case for lack of subject matter jurisdiction after defendant successfully moved for dismissal of improperly joined diverse party.
Mahtani v. Wyeth, (D.N.J. 2011). Co-authored winning brief opposing certification of nationwide class alleging negligence, consumer fraud under New Jersey Consumer Fraud Act, and unjust enrichment, related to sales of millions of doses of spot-on flea and tick repellent for dogs. Court denied class certification outright on all three claims (including alternative motion for New Jersey classes).
Pfizer HRT Litigation. Assisted national trial counsel with expert witness, evidentiary, and myriad other issues in connection with ongoing national litigation challenging adequacy of company’s warning label for hormone replacement therapy medications.
Pfizer Neurontin Litigation. Assisted national trial counsel with sophisticated expert witness preparation and Daubert hearings (offensive and defensive) to rebut plaintiff’s theory that data showed increased suicide risk with anti-psychotic drug.
Eisai v. Sanofi-Aventis. Represented pharmaceutical company in seven-year civil antitrust action in New Jersey federal court. Was extensively involved in development of expert witnesses on anticompetitive practices and antitrust damages. Briefed successful opposition to summary judgment motion on antitrust standing in trial court as well as the response to defendant’s petition to the United States Court of Appeals for the Third Circuit for Section 1292(b) review of the District Court’s decision finding client had antitrust standing.
McCoy v. Hanger. Obtained full defense verdict in one-day bench trial in the District Court of Maryland for Baltimore County. Plaintiff accused client of improperly fitting him with orthotic shoes, allegedly causing several falls and injuries. Mr. Stikeleather was solely responsible for preparing key fact witness and company representative and conducted the defense at trial.
- "Courts Increasingly Recognize Federal Preemption of Claims Involving All FDA-Approved Medications," For the Defense, September 2016
- "On Love-Making, Regrets, and Footnotes in Appellate Briefs,” Maryland Appellate Blog, November 1, 2016
- "Maryland High Court Introduces Civil Liability for Adults Who Allow Underage Drinking,” Maryland Appellate Blog, July 7, 2016
- "Sorting through the “Nuts and Bolts of Maryland Appellate Practice”, Maryland Appellate Blog, March 26, 2016
- "Expert’s Review of Literature Now Leaves Less Discretion for Exclusion,” Maryland Appellate Blog, December 5, 2015
- "Maryland Court of Appeals Aims To Take Fewer Cases, But Petitioners’ Success Rates Stay the Same,” Maryland Appellate Blog, September 23, 2015
- "Rough Justice is not Simple Justice: Fourth Circuit Guts Wal-Mart v. Dukes and Creates Circuit Split by Ordering Title VII Claims Certified as Rule 23(b)(3) Class," Maryland Appellate Blog, May 21, 2015
- "Fourth Circuit Applies "Gist of the Action" Doctrine: Avoids Slippery Slope of Rule 15," Maryland Appellate Blog, May 4, 2015
- "Why Government Lawyers Must Do Better: The Fourth Circuit Blasts the EEOC for "Disappointing Litigation Conduct"," Maryland Appellate Blog, February 23, 2015
- "Fourth Circuit Tackles Federal Preemption in Bottled-Water Labeling Claim," Maryland Appellate Blog, January 22, 2015
- "Obamacare on Appeal: Statutory Construction of This Politically Charged Question Will Inevitably Be Called Judicial Activism, " Maryland Appellate Blog, September 24, 2014
- "Why Defendants Should Want To Take More Class Actions To Trial," Goodell DeVries Blog, June 25, 2014
- "An Open Letter to Law Professors: Use This Case To Show Why Statutory Interpretation Is Not as Easy as It Sounds," Maryland Appellate Blog, June 19, 2014