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. Derek 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.

United States Court of Appeals for the Fifth Circuit

Correct RX Pharmacy v. Cornerstone Automation Systems, 945 F.3d 423 (5th Cir. 2019). Securing a Goodell DeVries trial victory for a Maryland pharmacy in Texas federal court, Derek briefed and argued the matter to the Fifth Circuit on the scope of the Texas economic-loss doctrine. On appeal, the Texas equipment manufacturer argued that the doctrine barred the victorious Maryland pharmacy's tort claims — and its multi-million dollar recovery. Derek showed the court that, although the parties had a contract and the bulk of the claimed damages were paid under the unfulfilled contract, Texas tort law still provided a remedy. The panel unanimously agreed in a published opinion upholding the verdict and eventual $3.7 million recovery. Derek also prevailed against the manufacturer’s last-minute arguments to have the Fifth Circuit certify the question to the Texas Supreme Court.

Court of Appeals of Maryland

Rochkind v. Stevenson, Case No. 47, September Term, 2019 (Aug. 28, 2020). Persuaded the Maryland Court of Appeals to formally recognize that the evolution of Maryland evidence law warranted formal adoption of the Daubert standard and retirement of the Frye-Reed test. The ruling sets the threshold that proposed expert witnesses must meet under Rule 5-702 in any civil or criminal proceeding in Maryland where the rules of evidence apply.

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. Derek 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. Derek 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.

California Court of Appeal

Patricia A. Murray Dental Corp. v. Dentsply International, 19 Cal. App. 5th 258 (Cal. Ct. App. 2018); Briefed and argued matter for dental manufacturer defending a class action brought against it under California’s Unfair Competition Law (UCL). Plaintiffs had claimed that the Class II prescription medical device at issue concealed a biofilm “hazard” that purchasing dentists did not appreciate. Derek persuaded the panel that the trial judge had substantial evidence that the highly sophisticated licensed purchasers knew of the claimed defect. This disproved the plaintiffs’ allegations of fraud under the UCL and breach of an express warranty for certain uses. The court published its precedential decision.

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 Matters

Weinstat v. Dentsply International. Derek was part of trial team that successfully defended dental device manufacturer in a three-week class action trial in San Francisco Superior Court. On appeal to the California Court of Appeal, Derek briefed and argued the matter, which led to a published decision affirming the win at trial. The plaintiffs had challenged the adequacy of warnings for Class II prescription medical device, alleging violations of the California Unfair Competition Law and breach of express warranty. In addition to handling the appeal, Derek successfully argued to the trial court that part of the 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, Inc., 321 F.R.D. 193 (E.D. Pa. 2017). Derek was part of the Goodell team that, in 2017, successfully defeated a motion for class certification filed against the same dental device manufacturer in a decade-long class action in Pennsylvania federal court. The 36-page memorandum opinion, which followed six days of hearings on the motion to certify, denied class certification on a multitude of bases. The district court judge found that the plaintiffs failed to meet three of the four requirements under Rule 23(a): typicality, adequacy, and numerosity and Rule 23(b)(3)’s requirements that common questions of law or fact predominate over individual questions and that a class action is superior to other available methods for adjudicating the dispute. The court further agreed with Goodell’s argument that the proposed class and subclasses were not objectively ascertainable and granted the Daubert motions to exclude the plaintiffs’ economic damages and FDA regulatory experts. In 2013, the team had obtained dismissal of claims for negligence and alleged violations of the New Jersey Consumer Fraud Act. That opinion, 2013 WL 3956284, 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. Derek was solely responsible for preparing key fact witness and company representative and conducted the defense at trial.

Derek M. Stikeleather

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