Opposition Brief — Foley v. Berg

Supreme Court, U.S.

| FilbED

SEP 70 2093

No. 03-210 OFFICE OF THE CLERK

ann ae

IN THE

Supreme Court of the United States

MICHAEL L. FOLEY,

Petitioner,

Vv.

EUGENIA BERG, .

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

Court OF APPEALS OF MARYLAND

BRIEF IN OPPOSITION FOR RESPONDENT

EUGENIA BERG

J. MICHAEL RECHER MiITcHELL Y. Mirviss

RuDOoLPH E. DEMEo Counsel of Record

RECHER & DEMEo, LLC VENABLE LLP

300 Allegheny Avenue 1800 Mercantile Bank

Towson, Maryland 212804 & Trust Bldg.

(410) 825-3100 Two Hopkins Plaza

Baltimore, Maryland 21201

(410) 244-7400

Attorneys for Respondent

Eugenia Berg

182935 cr

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

i

~

QUESTIONS PRESENTED

Petitioner sets forth one issue for review: “Does the

Federal Constitution provide, independent of any state or

federal collateral order doctrine, a right to appeal an

interlocutory order infringing upon a fundamental libert\

interest?” Because this statement oversimplifies the issues

and does not address jurisdictional obstacles, Respondent

submits the following questions:

2

—

Did Petitioner preserve his question for review when

he did not assert it until his petition for rehearing in

the Court of Appeals of Maryland, which that court

denied without comment?

Is Petitioner correct in equating a discovery order

requiring simple, relatively non-invasive blood and

urine tests and a physical exam, issued under

-Maryland’s equivalent to Fed. R. Civ. P. 35, with

the order requiring the administration of

antipsychotic drugs at issue in Sell v. United States,

__ US. __, 123 S. Ct. 2174 (2003)?

Does a discovery order requiring blood and urine

tests and a physical exam ofa party, pursuant to rules

of civil procedure allowing such discovery, infringe

upon a “fundamental liberty interest’’?

Does Maryland’s final judgment rule, which does

not allow interlocutory appeals of discovery orders

requiring physical or mental examinations, violate

procedural due process?

a

it

Is a state appellate court decision denying an

interlocutory appeal of a discovery order a final

judgment or decree reviewable by this Court?

lil

TABLE OF CONTENTS

Response to Statement of the Case .............

Reasons for Denying the Petition ...............

A.

EB.

The Question Presented By The Petition

Differs Materially From The Issue Decided

By The Lower Courts Ana Was Not Raised

Until A Belated Post-Decision Motion For

IL, eva ve ese cnceetecevass

By Mischaracterizing The Discovery Order

As Compelling “Treatment” Similar To Sell

v. United States, Petitioner Distorts This Case.

Petitioner Ignores The Settled Rule Of Law

Regarding The De Minimis Invasiveness Of

Physical Examinations And Tests. ........

This Court Has Held Repeatedly That The

Lack Of An Appeal Right Does Not Violate

Due Process. ...... Cer ER Tea eee eee

The State Court Decision Is Not Final. ....

ls a

14

15

17

22

23

ee ’

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

ACand § v. Asner,

344 Md. 155, 686 A.2d 250 (1996) ........... 13

Adams v. Robertson,

ge Bo.) ree ee ee 10

Am. Sur. Co. v. Baldwin,

EE Ss CRUD ci ene 64 Vow a WER be beh ees 11

Andrews v. Swartz,

SOF Si Te OEE 6 oo bee cbr eanves souk ees 18, 19

Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, if

eS Re). ee rer err re 11,12

Bowe v. Scott,

ee Seas OU kos eka bn one eee 12

Bowles v. Comm ’l Cas. Ins. Co.,

107 F.246 169 (4th Cir. 1939) .. 0... cece ec eee 21

Breithaupt v. Abram,

See Wi CFE 55.0 oka ee boven nana 17

Bushnell v. Crooke Min. & Smelting Co.,

Fe Sha EE Sobek bh cevcetbadaceewes 12

Citizens’ Nat’l Bank of Cincinnati v. Durr,

Sat Gas Sr EOES 45 aoe keen eet eerens 11

a ee

Vv

Cited Authorities

Cobbledick v. United States,

Te Ue See A 05 ii 0 sewen syne cks enue

Cohen v. Beneficial Indus. Loan Corp.,

ede | rer errr ee se

Commonwealth v. $9,847.00 U.S. Currency,

161 Pa. Com. 548, A.2d 736 (1994) ..........

Commonwealth v. $9,847.00 U.S. Currency,

550 Pa. 192, 704 A.2d 612 (1997) ............

Comptroller of Treas. v. Aerial Prods., Inc.,

210 Md. 627, 124 A.2d 805 (1956) ...........

Connaught Labs., Inc. v. SmithKline Beecham P.L.C.

165 F.36 1366 (Fed. Civ. S598) xu ccs scccwess

Consol. Tpk. Co. v. Norfolk & O.V.R. Co.,

pe SER ee Tt: err rrr ree

Coopers & Lybrand v. Livesay,

pik & Ft ere rere ea

Cruzan v. Dir., Mo. Dept. of Health,

eth & Ft, | Reeerrr rT ere rer ree

Cunningham v. Hamilton County,

eh SB, Fi... ree er rere

Page

18

20

21

>

12

20

vi

Cited Authorities

District of Columbia v. Clowans,

FOO Ue GET CE POTD casa eet ekusevasnes

E. Bldg. & Loan Ass'n v. Welling,

108. STOO Uc cae

Exxon Corp. v. Eagerton,

QGZ U.S. DIOCESE). ov icccendecseveses

FDIC v. Ogden Corp.,

202 F.3d 454 (1st Cir. 2000) ............

Flynt v. Ohio,

GSE UB. CEP CIS) ov cc coc cnewenvenes

Forbes v. State Council,

yo ROE Me i eeeereearee rer cr

Fuller v. Oregon,

417 U.S. 40 (1974) .....ccccevcecceess

Godchaux Co. v. Estopinal,

SSE Uitte ETD CEGEPD oan Oiiwwiee ee ee einss

Griffin v. Illinois,

LBS ye). | errr re re

Hanson v. Denckla,

SOS Ge SPP CAPES SNe eon aeasavenen

Page

12

12

22

12

12

11

18

11

vil

Cited Authorities

; Page

Herndon vy. Georgia,

Pe es Ne CE ob vo seb ens e neste scans 11

Hyde v. State,

228 Md. 209, 179 A.2d 421 (1962) ........... 13

In re Brittany S.,

147 N.H. 489, 792 A.2d 384 (2002) .......... 21

In re Lee,

132 Md. 696, 754 A.2d 426 (2000) ........... 5

In re Master Key Antitrust Litig.,

re fe ber Le a. | eer 20-21

Jones v. Murray,

962 F.2d 302 (4th Cir. 1992) ................ 17

Klauenberb v. State,

355 Md. 528, 735 A.2d 1061 (1999) .......... 13

Kohl v. Lehlback,

RGD UB. 29S CUGPS) cere sven vsececwnseseses 19

Lindsey v. Normet,

ee SOE oo 0k Kas Cawadeuawensens 18

Luckenbach S.S. Co. v. United States,

eo ge oe. | ere ye ere 18

Vili

Cited Authorities

Matthews v. Eldridge,

GOA UB. SIP CIGTS) cc cccececvcsscuveseun

McCane v. Durston,

153 U.S: 684 (1894) ........ cee eee eee eee

MDK, Inc. v. Mike’s Train House, Inc.,

27 F.S6 LEG CORR CO USFS) nce scccccngisess

Mut. Life Ins. Co. v. McGrew,

EOS UB. Be CERES ccs cetccesccsceseseces

Nat’! Union of Marine Cooks v. Arnold,

PED ULB. SE UISOED cccveneivnvecescectsces

Ohio ex rel. Bryant v. Akron Metro. Park Dist.,

SBE UB. FO CITSED ccc cccccccntocsevcssess

Pim v. City of St. Louis,

EOS CB. BFS CESPED cc ccecvcscveesusessees

Prudential Fed. Sav. and Loan Ass'n v. Flanigan,

SIS Wi, BIEN CEE) cvccviocavestvesacese

Radio Station WOW, Inc. v. Johnson,

326 U.S. 120 (1945)... 0... cece eee eee eee ee

Reetz v. Michigan,

RE Ss POP CEPEED c ic ccccccdsensesecnnes

Page

17

12

ix

Cited Authorities

Page

Reise v. Bd. of Regents,

yee bce, Lo Bl | rr 21

Rogers v. Peck,

og | re rere 18, 19

Schlagenhauf v. Holder,

ee ge | re 16

Schmerber v. California,

og yg) ee er ere 17

Sell v. United States,

__ US. _, 123 S. Ct. 2174 (2003) ...i, 14, 15, 19, 20

Sibbach v. Wilson & Co..,

Se ec clete snes seenviwses 15, 16

Skinner v. Ry. Labor Execs.’ Ass'n,

Re 16

Standard Oil Co. of Ind. v. Missouri,

ee ee eer eee er ere 18

Siate v. Gross,

134 Md. App. 528, 760 A.2d 725 (2000) ...... 13

St Louis & S.F-R. Co. v. Shepherd,

ee ee 11-12

Cited Authorities

The Francis Wright,

og fe ee errr er re eer ree eee

United States v. Philip Morris Inc.,

Pee ee Ee CR Re BED 6 oes ee har ennes

Veronia Sch. Dist. 47J v. Acton,

gtk Re fo. eee err

Washington v. Harper,

Ge ie BED UROFED boc c vec ccesevesdunveses

Wills v. Texas,

Be re ET EDS 6k 6h nse 04 cae ewo ns

United States Constitution:

Fifth Amendment ......... Oy ee ee ens ee

Statutes:

pe ae Be ee ere ree

OR ee ee ere ere

rote Ee Be ee eee atone

Md. Code Ann., Est. & Tr. §§ 13-705(c)(2)(i) & (i1) ...

Md. Code Ann., Est. & Tr. § 13-705(f) .............

Page

xi

Cited Authorities

Page

Rules:

J

ee ee . eee re re en ae i, 6, 15, 16, 21

ee ae Sg ds nb ova ose eee vebeuen 6

& Re ee er ee ene 13

a re 6

| Md. R. Civ. P. 10-202(a)(1) ... 00. e sce e eee eee. 5

Md. R. Civ. P. 10-202(6M(2) ......... 0c cceeces 5

ee ee 8 ee en are eee 13

Other:

Richard J. Barnet, Compulsory Medical Examinations

Under the Federal Rules, 41 Va. L. Rev. 1059 (1955)

SEED VEAUROEE aR YORE ELE RE TEAST Lees eee 16

]

Respondent Eugenia Berg respectfully requests that this

Honorable Court deny the petition for a writ of certiorari by

Michael L, Foley seeking review of a decision by the Court

of Appeals of Maryland dismissing his appeal of an

interlocutory discovery order entered by the Circuit Court

for Anne Arundel County, Maryland.

RESPONSE TO STATEMENT OF THE CASE

Petitioner ignores the pertinent facts demonstrating that

the order at issue is a routine discovery order requiring

relatively non-invasive medical tests and examination.

Sophia Foley, the incapacitated person who is the subject

of this petition, was born on September 21, 1939. She grew

up and lived in Taylor, Michigan, an endemic area for Lyme

disease, for 20 years, before moving to Maryland and

marrying Petitioner. Mrs. Foley gave birth to a daughter in

1985, at age 46.

Mrs. Foley’s symptoms apparently began in 1988 or

shortly thereafter. The exact progression is not clear due to a

lack of medical records from 1986-90. Nevertheless, she

apparently became depressed and withdrawn in 1988 and

abruptly began to change her activities in 1990. Shortly

thereafter, she began to experience memory loss and

confusion. By mid-1992, when she was only 53 years old

and her daughter only six, she had developed obvious

neurocognitive deficits such as confusion, poor memory, and

child-like behavior.

A neurologist diagnosed dementia from early onset

Alzheimer’s disease. Experts for both parties and the Lyme

Disease Foundation, which submitted an amicus brief in the

2

Court of Appeals of Maryland in support of the Respondent,

concur that Alzheimer’s disease is diagnosed by ruling out

other possible causes. It cannot be definitively diagnosed until

autopsy. According to the neurologist, age 53 is a very young

age to suffer from dementia due to Alzheimer’s.

On June 25, 1992, Mrs. Foley signed a Health Care

Power of Attorney designating Mr. Foley as her agent

responsible for her medical care and treatment. That

agreement gave one direction for her care: “I wish to live

and enjoy life as long as possible. However, I do not wish to

receive medical treatment which will only postpone the

moment of my death from an incurable and terminal condition

or prolong an irreversible coma.”

Mrs. Foley’s condition continued to deteriorate

thereafter. By the fall of 1993 or August 1994, she reportedly

had become incompetent to make decisions regarding her

medical care, although she could still take care of daily needs

such as washing, dressing, eating, cooking food, and stating

intentions. By 1997, however, she had become substantially

incapacitated due to her dementia. She exhibited mental

confusion and was unable to bathe and dress herself, prepare

her meals, or care for herself or others. Nevertheless, Mrs.

Foley is not entirely incapacitated. Medical records indicate

that she eats with her fingers and sometimes responds to

music by attempting to dance.

Lyme disease shares many symptoms of Alzheimer’s

disease, multiple sclerosis, and other diseases of the nervous

and musculo-skeletal systems. It especially resembles

syphilis, as both may lay dormant and asymptomatic within

the central nervous system for many years.

3

Mrs. Foley has had numerous common symptoms of late-

stage Lyme disease: dementia, severe arthritis, difficulty in

swallowing due to impairment of the Vagus nerve in the neck,

depression, and seizures. Moreover, the onset of her

symptoms at ages 47-51 corresponds with the average onset

of late-stage Lyme disease.

Alarmed over their sister’s condition and the fact that

she had not received any medical attention in the preceding

two years, in 1997, Ms. Berg, an older sister of Mrs. Foley,

and two other sisters petitioned the Circuit Court for Anne

Arundel County, Maryland, to become co-guardians for Mrs.

Foley. In response to their stated concerns about possible

Lyme disease, Mr. Foley allowed blood tests for serological

antibodies to Lyme disease: (1) an “ELISA” test that. was

described by her treating physician as “weak positive”; and

(2) two “Western Blot” tests that were negative.

Because these tests only detect the presence of antibodies

in blood, they are not accurate. The bacterium that causes

Lyme disease does not like to reside in the bloodstream and

instead invades the central nervous system, thus avoiding

antibody formation. As a result, the ELISA and Western Blot

antibody tests have extremely high false negative rates: it is

undisputed that 30-35% of infected patients test negative.

The FDA has therefore issued an advisory that ELISA/

Western Blot tests “may be easily misinterpreted” and should

be used as a corroborative measure, i.e., “only to support a

clinical diagnosis of Lyme disease,” not to exclude or

‘establish an infection.

The petition did not, however, provide medical opinions

challenging the decisions of Mr. Foley. As a result, the court

dismissed the petition but indicated that the decision could

4

be revisited if such medical tesi..ony were provided in the

future. Ms. Berg was granted visitation rights at the adult

day care facility that cared for Mrs. Foley during the day.

In April 2000, Ms. Berg visited the day care center and

found that Mrs. Foley was not there. For the next two to

three days, Ms. Berg telephoned the center and was told that

Mrs. Foley was absent. Understandably concerned, she went

to the Foleys’ house, where she found no one home and the

kitchen door open. She entered and found Mts. Foley alone,

awake, and sitting on a sofa in the living room. Upon

investigation, she discovered that Mr. Foley had been leaving

his wife alone and unattended all day, five days a week, sitting

on a sofa in the empty house with the kitchen door left open,

until Mrs. Foley’s teenage daughter returned home from

school in the late afternoon. This had gone on for days and

undoubtedly would have persisted for weeks, as Mr. Foley’s

payments to the center had fallen in arrears even though Ms.

Berg had previously sent Mr. Foley a check large enough to

pay past debts and continue attendance at the center..

Faced with the prospect of her sister remaining home

without appropriate care or supervision, and aware of new

and more accurate tests for Lyme disease, Ms. Berg again

petitioned the Circuit Court for Anne Arundel County for

co-guardianship. Unlike the first petition, in this preceding

Ms. Berg presented affidavits from three separate physicians

who opined that Mrs. Foley had not received proper medical

attention and treatment for her dementia and other medical

conditions. They pointed out that she (1) had not received a

medical examination in the past three years; (2) had not

received a Pap smear, mammogram, or other medical

examination appropriate for a woman of her age in many

years; and (3) exhibited symptoms of Lyme disease. They

5

concluded that Mrs. Foley’s physicians had breached the

standard of care and that she urgently needed new medical

treatment.

The physicians also recommended a new and definitive

test for Lyme disease and related tick-borne diseases:

polymerase chain reaction (“PCR”) tests of a patient’s blood

or urine for the bacterium’s DNA. Although this test has a

low positive rate (only 5 to 20% of infected patients test

positive), unlike the antibody tests, a positive result is 100%

conclusive for active Lyme disease infection.

Because the new petition provided a medical opinion in

support, the court denied a motion by Mr. Foley to dismiss

the new petition. Nevertheless, to proceed on the petition,

Ms. Berg needed additional information. Under the Maryland

statutes and rules governing guardianship proceedings, a

petition for guardianship must include certificates from two

licensed physicians (or one physician and one psychologist)

indicating that they have examined or evaluated the

individual and setting forth their opinions as to the “cause,

nature, extent, and probable duration of the disability[.]”

Md. R. Civ. P. 10-202(a)(1); see also Md. Code Ann., Est. &

Tr. §§ 13-705(c)(2) (1) & (ii). This rule is not waivable, even

if the parties to the proceeding concur that the disabled person

is not competent. See In re Lee, 132 Md. 696, 711-12, 754

A.2d 426, 436-38 (2000). Moreover, if the person having

control of the disabled person refuses to permit medical

examination of the disabied person and the disabled person

may be at risk unless a guardian is appointed, the trial court

must hold a hearing, and, if it finds that examinations are

needed, appoint physicians to report upon the cause, nature,

extent, and probable duration of the disability. Md. R. Civ.

P. 10-202(b)(2).

6

Mr. Foley did not consent to an examination by Ms.

Berg’s experts. To meet her obligations under Md. R. Civ. P.

10-202, Ms. Berg followed Maryland procedure and moved

for a medical examination and testing under Md. R. Civ P.

2-423, acivil discovery rule equivalent to Fed. R. Civ. P. 35.

Thus, while Petitioner contends that the trial court’s discovery

order for a medical exam and tests was “remarkable,” the

order merely followed settled, mandatory procedures under

Maryland law. The cause, nature, extent and probable

duration of Mrs. Foley’s disabilities were in dispute, and the

court therefore was obliged to order the medical discovery

to answer those questions.

After extensive briefing and a thorough hearing, the trial

court granted Ms. Berg’s motion in substantial part and issued

a discovery order providing for mipimal urine tests, a blood

test, a physical exam, and a vision test. Tellingly, while

Petitioner characterizes the discovery order as requiring

“experimental” treatment, he does not discuss the oréer’s

terms. This is not inadvertent. The order in question was

hardly extraordinary. It merely required a single physical

examination of Mrs. Foley, a single blood specimen,

collection of up to ten urine specimens-over a ten-week

period, and a single non-invasive “visual contrast” eye

examination. While Mr. Foley objected to each of these

procedures, the blood specimen was the only procedure that

he opposed as invasi: > and traumatic, purportedly because

Mrs. Foley would require sedation. The attorney appointed

by the court to represent Mrs. Foley proffered that the day

care center could collect the urine specimens without trauma

or difficulty. Mr. Foley did not dispute that statement.

During this appeal, Petitioner demonstrated that his

concern over the purported invasiveness of a blood test was

7

a hollow deception. Even as he waged a bitter and costly,

appeal to prevent a new blood test of Mrs. Foley for Lyme

disease, he has ordered further blood specimens to be drawn

from Mrs. Foley in order to, inter alia, repeat the same ELISA

and Western blot serological tests for Lyme done in 1997.

This test, conducted on a blood specimen collected in June

2001 while Mr. Foley’s appeal was pending in the Court of

Special Appeals of Maryland, and after Petitioner had already

obtained a stay of the PCR blood test ordered by the trial

court, utterly belies Petitioner’s claims that blood tests would

be invasive, intrusive, unnecessary, and unfairly burdensome

to Mrs. Foley.

That Mr. Foley directed his own blood tests without also

allowing for the court-ordered PCR blood test — a test that,

unlike the serological tests, can definitively confirm the

presence of active Lyme or other related tick-borne diseases

— speaks volumes to the gamesmanship at play here. Surely,

if blood was being drawn, and especially if it was being drawn

for a Lyme disease test, a PCR test should have been arranged

or an additional sample drawn at the same time to prevent

any future traumatic “invasion” of Mrs. Foley. Instead, by

taking the very step that he has consistently proclaimed is

unnecessary and ill-advised — ordering a blood test for Lyme

disease — Petitioner has waived any plausible claim that the

discovery order for PCR tests is unnecessary and/or traumatic

for Mrs. Foley. His actions confirm what has long been

obvious: Petitioner’s justification for opposing the order, his

sworn statements that a second blood test for Lyme disease

would needlessly inflict great trauma, is a figleaf for his

intractable and arbitrary opposition to any intervention by

Ms. Berg or the courts.

8

Finally, Petitioner does not suggest here, and has never

argued below, that the procedures employed by the trial court

violated due process. Nor could he. Mrs. Foley had an

attorney appointed to represent her interests (the same

attorney who represented her in 1997), and that attorney

supported the request for additional Lyme testing, although

she believed a physical examination unnecessary.' The trial

testimony from the 1997 proceedings were incorporated into

the record, and each side submitted affidavits from multiple

experts. The trial court held two days of hearings with all

parties represented by counsel. Mr. Foley was permitted to

move for reconsideration and to submit new evidence.

As Petitioner was given a full and fair opportunity to present

all arguments and evidence, he cannot claim that those

procedures were constitutionally deficient.

1. The attorney did not alter this position until the end of the

Maryland appellate proceedings. She did not participate in the

proceedings in the Court of Special Appeals of Maryland. She

similarly did not oppose Ms. Berg’s petition for a writ of certiorari

filed in the Court of Appeals of Maryland, and she did not file a

brief on the merits in that court. Nevertheless, with no warning, she

filed a “reply brief” in that court that abandoned her support for

testing and instead argued that due to the impact of the litigation

upon the Foley family, she believed that it would be best for all that

the case end.

9

REASONS FOR DENYING THE PETITION

A. The Question Presented By The Petition Differs

Materially From The Issue Decided By The Lower

Courts And Was Not Raised Until A Belated Post-

Decision Motion For Reconsideration.

The specific issue presented by Petitioner here — “Does

an Independent Constitutional Right Provide for an

Interlocutory Appeal Protecting Fundamental Liberty

Interests?” (Pet. at 10) — was not timely presented to the state

~ courts. Instead, Petitioner first raised this issue in his motion

for reconsideration filed after the Court of Appeals dismissed

his appeal. Under this Court’s settled precedents, this belated

effort to concoct a constitutional issue comes too late to

preserve the issue for review by this Court.

Petitioner had ample notice and opportunity to raise his

constitutional challenge to Maryland’s final judgment rule.

In the intermediate appellate court, he filed a fourteen-page

motion for a stay, much of which argued that the discovery

order “meets all of the requirements of the collateral order

exception to the final judgment rule.” (Mot. to Stay Order of

Disc. at 2). See also id. at 8-14. He never contended that the

Maryland final judgment rule was unconstitutional as applied

to this case.

Thereafter, Ms. Berg moved to dismiss his interlocutory

appeal as impermissible under state law, and Petitioner

opposed the challenge to appealability by relying upon his

pending Motion to Stay Order of Discovery, not by raising a

new constitutional issue. See Resp. to Mot. to Dism. App. at

1-2.

10

In the Court of Appeals, this failure to raise the issue

was even more pronounced. Ms. Berg’s petition for a writ of

certiorari asserted lack of appellate jurisdiction as the first

issue for review by that court. Petitioner’s lone sentence in

response merely recited to the decision of the Court of Special

Appeals below: “It is Mr. Foley’s opinion that the reasoning

of the Court of Special Appeals as to why this appeal fits

into this [collateral order] exception requires no further

explanation or support.” (Resp. to Pet. for a Writ of Cert. at

2). Even worse, despite the fact that the Court of Appeals

granted review of all issues raised by Ms. Berg’s petition,

and that Ms. Berg again devoted a substantial portion of her

brief to that issue, Mr. Foley’s brief on the merits simply

stated that he “need not address this issue again, and elects

to submit upon the wisdom of the Court of Special Appeals

on this issue.” (Br. of Resp. at 44). Thus, despite ample notice

of his peril, Petitioner left an open field for the Court of

Appeals to apply its settled rule against interlocutory appeals

of discovery orders. ;

Petitioner’s attempt to demonstrate sufficient

preservation of his constitutional challenge to the Maryland

final judgment rule, see Pet. at 5-7, is highly misleading.

Each of those arguments in the courts below discussed his

contention that the discovery order implicated substantive

due process rights of Mrs. Foley (i.e., “constitutionally

protected liberty interests”), see id., not that denial of a right

to appeal under the final judgment rule could violate

procedural due process. That issue was never raised until his

motion for reconsideration, A48-65, which, as this Court has

repeatedly held, comes too late to establish a federal issue

for review by this Court. See Adams v. Robertson, 520 U.S.

83, 89 n.3 (1997) (per curiam) (“we have generally refused

to consider issues raised clearly for the first time in a petition

11

for rehearing when the state court is silent on the question”);

Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481

U.S. 537, 550 (1987) (where “Appellants did not present the

issues squarely to the state courts until they filed their petition

for rehearing with the Court of Appeal,” which “denied the

petition without opinion,” it “is well settled that this Court”

_ will not grant review”).?

2. The decisions to this effect are legion. See, e.g., Wills v. Texas,

511 U.S. 1097, 1097 (1994) (O’Connor, J., concurring) (“[i]t has

been the traditional practice of this Court, however, to decline to

review claims raised for the first time on rehearing in the court

below”); Prudential Fed. Sav. and Loan Ass'n v. F, lanigan, 478 U.S.

1311, 1311 (1986) (Rehnquist, J.) (“claims presented by the applicants

are not properly before” the Court where the “constitutional issues

.. were not properly presented ... until the applicants filed for

rehearing,” which the state court “denied ... without comment,

consistent with its practice of refusing to consider issues not pressed

at each stage of the litigation”); Hanson v. Denckla, 357 U.S. 235,

243-44 (1958) (argument raised for first time in motion for rehearing

was “not seasonably presented”); Radio Station WOW, Inc. v. Johnson

326 U.S. 120, 128 (1945) (“[qjuestions first presented to the highest

State court on a petition for rehearing come too late for consideration

here”); Herndon v. Georgia., 295 U.S. 441, 443 (1935) (“[t]he long-

established general rule is that the attempt, to raise a federal question

after judgment, upon a petition for rehearing, comes too late, unless

the court actually entertains the question and decides it”); Am. Sur.

Co. v. Baldwin, 287 U.S. 156, 163 (1932) (petition for rehearing

raising due process issue for first time “cannot serve as the basis for

review by this Court”); Citizens’ Nat'l Bank of Cincinnati v. Durr,

257 U.S. 99, 100 (1921) (petition for rehearing, denied without

opinion, “must be regarded as having come too late to raise any

question for review by this court”); Godchaux Co. v. Estopinal, 251

U.S. 179, 181 (1919) (“The settled rule is that [if] the essential federal

question . . . [is] first presented in a petition for rehearing, it comes

too late unless the court actually entertains the petition and passes

upon the point”); St. Louis & S.F.R. Co. v. Shepherd, 240 U.S. 240,

(Cont'd)

12

Neither of the two exceptions to this rule applies here.

First, the Court of Appeals of Maryland did not issue an

opinion deciding this issue. It is therefore presumed, as a

matter of law, that the court did not rule upon it: When “““the

highest state court has failed to pass upon a federal question,

it will be assumed that the omission was due to want of proper

presentation in the state courts, unless the aggrieved party in

this Court can affirmatively show the contrary.”’” Rotary

Int’l, 481 U.S.at 550 (quoting Exxon Corp. v. Eagerton, 462

U.S. 176, 181 n.3 (1983); Fuller v. Oregon, 417 U.S. 40, 50

n.11 (1974)). Thus, boilerplate language by the state court

that it “considered” the petition for rehearing (A37) does not

suffice. Consol. Tpk. Co., 228 U.S. at 333-34; Forbes v. State

Council, 216 U.S. at 399.

(Cont'd)

241 (1916); Bowe v. Scott, 233 U.S. 658, 663 (1914) (“it is elementary

that... a petition for rehearing affords no ground for invoking the

jurisdiction of this court”); Consol. Tpk. Co. v. Norfolk & O.V.R.

Co., 228 U.S. 326, 333-34 (1913) (“Nothing is better settled than

that it is too late to raise a Federal question for the first time in a

petition for a rehearing”); Forbes v. State Council, 216 U.S. 396,

399 (1910) (“[i]t has been many times held in this court that an attempt

to introduce a Federal question into the record for the first time by a

petition for rehearing is too late”); Mut. Life Ins. Co. v. McGrew, 188

U.S. 291, 311 (1903) (petition for rehearing “came too late”);

E. Bldg. & Loan Ass'n v. Welling, 181 U.S. 47, 48 (1901) (same);

Pim v. City of St. Louis, 165 U.S. 273, 274 (1897) (same); Bushnell

v. Crooke Min. & Smelting Co., 148 U.S. 682, 689 (1893) (“The

attempt to raise for the first time a federal question in a petition for

rehearing . . . is clearly too late”).

13

Second, Petitioner cannot credibly claim surprise by the

Court of Appeals’ decision. He had ample opportunity to raise

his purported constitutional right to interlocutory appeal in

the lower courts. The decision did not reverse any precedents,

nor did it present an unexpected interpretation of state law.

Indeed, it went out of its way to point out that, under settled

Maryland law, “the four requirements of the collateral order

doctrine are very strictly applied,” that “appeals under the

doctrine may be entertained only in extraordinary

circumstances,” that such appeals are typically dismissed

summarily, and that discovery orders are “consistently held”

not to fall under the collateral order doctrine absent “a very

few” extraordinary situations far from the “typical” discovery

order at hand. (A6-9). The court cited eleven decisions that

presaged its ruling. Jd.3

Rule 10(c) limits certiorari to questions actually decided

by the state court. The Petition fails to meet that standard.

—

3. The Maryland appellate rules requiring parties to raise issues

in their substantive briefs are also well established. The failure to do

So generally is deemed a waiver. See ACand S v. Asner, 344 Md.

155, 189, 686 A.2d 250, 267 (1996) (denying motion for

reconsideration because, inter alia, argument was never raised in

brief). See.also Klauenberb v. State, 355 Md. 528, 552, 735 A.2d

1061, 1074 (1999); Hyde v. State, 228 Md. 209, 218, 179 A.2d 421,

425 (1962); Comptroller of Treas. v. Aerial Prods., Inc., 210 Md.

627, 644, 124 A.2d 805, 814 (1956) (citing cases). Under Md. R.

Civ. P. 8-605, Maryland appellate courts have broad discretion to

deny a motion for reconsideration summarily, without deciding the

issues raised therein. See State v. Gross, 134 Md. App. 528, 578 n.4,

760 A.2d 725, 751 n.4 (2000).

14

B. By Mischaracterizing The Discovery Order As

Compelling “Treatment” Similar To Sell v. United

States, Petitioner Distorts This Case.

Petitioner also distorts the substantive issue at hand. His

Petition presumes that the discovery order infringes upon a

fundamental liberty interest of Mrs. Foley, going so far as to

proclaim that the Court of Appeals found as much. See Pet.

at 8 (claiming that the “Court of Appeals of Maryland’s

decision determin[ed] that, despite permanent and irreparable

deprivation of fundamental liberty interests,” the discovery

order was not appealable) (parenthesis deleted). The Court

of Appeals made no such determination. To the contrary, the

court concluded that the order for a medical examination was

‘a typical discovery order aimed at ascertaining critical facts

upon which the outcome of the guardianship controversy

might depend.” (A8).

Indeed, in an effort to bootstrap this Court’s recent

decision in Sell v. United States, _U.S.__, 123 S. Ct. 2174

(2003), Petitioner egregiously mischaracterizes the nature of

the discovery order. He repeatedly describes it as requiring

involuntary “medical testing and treatment,” see, e.g., Pet.

at 10, even though the discovery order requires only a

physical examination and minimal tests and no treatment

whatsoever. (A13-15). Sell, by contrast, involved treatment

but not tests, i.e., forced administration of antipsychotic drugs

to a mentally ill criminal defendant. This extreme measure

is a far cry from the routine medical tests ordered below.‘

=

4. It is well-established that forced administration of

antipsychotic medication implicates a “‘significant’” constitutionally

protected liberty interest. See Sell, _ U.S. at__, 123 S. Ct. at 2183

(quoting Washington v. Harper, 494 U.S. 210, 221 (1990)).

15

By conflating “treatment” with “tests,” Petitioner has

deliberately obscured the constitutional issues at hand.

Sell is not applicable here, and, because the Petition rests entirely

on Sell, it fails to demonstrate a constitutional deprivation.

C. Petitioner Ignores The Settled Rule Of Law Regarding

The De Minimis Invasiveness Of Physical Examinations

And Tests.

Petitioner mischaracterizes the discovery order for an

obvious reason: this Court has consistently rejected claims that

court-ordered blood or urine tests and physical examinations

infringe fundamental liberty interests.

The Court made this point clear when it affirmed the

constitutionality of Fed. R. Civ. P. 35 in Sibbach v. Wilson &

Co., 312 U.S. 1 (1941). Plaintiff in that case challenged a court-

ordered medical examination as infringing important and

substantial rights of liberty and privacy, contrary to the Rules

Enabling Act’s prohibition against rules of civil procedure that

abridge, enlarge, or modify any substantial right. The Court

rejected that position, holding that “[t]he asserted right” of

privacy against court-ordered physical and mental examinations

is “no more important than many others” abridged by the Federal

Rules of Civil Procedure. 312 U.S. at 14. The rule therefore did

not infringe “important and substantial rights theretofore

recognized.” Jd. at 13. See also id. at 14 (only a finding of

contempt for disobedience, not the examination, “offends the

important right to freedom from invasion to the person”).

Indeed, the Court warned of serious dangers that would

result from upholding the plaintiff’s claim of a fundamental

right “of freedom from invasion of the person.” It explained,

“If we were to adopt the suggested criterion of the importance

16

of the alleged right we should invite endless litigation and

confusion worse confounded.” Jd. This case bears out that

prophesy: Petitioner has been able to delay vital court-ordered

medical testing and examination for 2% years, even though

Maryland law requires expedited adjudication of

guardianship petitions, see Md. Code Ann., Est. & Tr. § 13-

705(f), and Mrs. Foley’s health has continued to deteriorate.

That this has occurred even as Mr. Foley has authorized the

same “invasion” of Mrs. Foley that he opposes here (i.e., the

taking of blood specimens for medical tests, including tests

for Lyme disease), vividly illustrates the sort of cynical

litigation mischief predicted in Sibbach.

Two decades later, the Court reaffirmed the absence of

any constitutional issue arising from Rule 35 in Schlagenhauf

v. Holder, 379 U.S. 104 (1964). There, the Court concluded

that defendants as well as plaintiffs were subject to discovery

under Rule 35, even if they had not placed their medical

condition in controversy. The Court affirmed that this rule

did not abridge substantive rights: “We hold that Rule 35, as

applied to either plaintiffs or defendants in an action, is free

from constitutional difficulty and is within the scope of the

Enabling Act.” Jd. at 114.

These decisions are definitive. As one commentator

wrote nearly 50 years ago, “the argument that physical

examinations are of themselves an infringement of personal

liberty is an anachronism.” Richard J. Barnet, Compulsory

Medical Examinations Under the Federal Rules, 41 Va. L.

Rev. 1059, 1063 (1955). That reality has not changed. This

Court has repeatedly confirmed the de minimis nature of

blood and urine tests when reasonably compelled to advance

an important government interest. See Skinner v. Ry. Labor

Execs.’ Ass'n, 489 U.S. 602, 625 (1989) (reiterating relative

17

insignificance of blood tests as “‘such tests are a

commonplace in these days of periodic examinations’” and

“that for most people the procedure involves virtually no

risk, trauma, or pain’”) (quoting Schmerber v. California,

384 U.S. 757, 771 (1966)); id. at 666 n.7 (collection of urine

sample is not “a significant invasion of privacy” if collection

process respects privacy); Veronia Sch. Dist. 47J v. Acton,

515 U.S. 646, 658-60 (1995) (same); Breithaupt v. Abram,

352 U.S. 432, 436 (1957) (“[t]he blood test procedure has

become routine in our everyday life”); see also Jones v.

Murray, 962 F.2d 302, 307 (4th Cir. 1992) (blood testing

poses “slight” intrusion that is “not significant” compared

to reasonable governmental interests).

This case is no different. Petitioner has ordered blood

tests imposing the same “violation” of personal freedom as

that allegedly caused by the discovery order. This exercise

in hypocrisy belies any credible claim that the order infringes

“fundamental” rights.

D. This Court Has Held Repeatedly That The Lack Of

An Appeal Right Does Not Violate Due Process.

Petitioners’ other assumption, that the denial of an

interlocutory appeal may violate due process, is equally

unfounded. This Court has consistently held that if a party

receives a full and fair hearing in the court of first instance,

due process does not require any appeal, let alone

interlocutory review. See, e.g., Ohio ex rel. Bryant v. Akron

Metro. Park Dist., 281 U.S. 74, 80 (1930) (“as [has been]

frequently determined by this court, the right of appeal is

not essential to due process, provided that due process has

already been accorded in the tribunal of first instance”).

As Justice Frankfurter put it, “the right to judgment from

18

more than one court is a matter of grace and not a necessary

ingredient of justice.” Cobbledick v. United States, 309 U.S.

323, 325 (1940).°

5. Again, numerous cases so hold. See Lindsey v. Normet, 405

U.S. 56, 76 (1972) (“this Court has recognized that if a full and fair

trial on the merits is provided, the Due Process Clause of the

Fourteenth Amendment does not require a State to provide apnellate

review”); Griffin v. Illinois, 351 U.S. 12, 18 (1955) (“a State is not

required by the Federal Constitution to provide appellate courts or a

right to appellate review at all”); Nat'l Union of Marine Cooks v.

Arnold, 348 US. 37, 43 (1954) (while right of appeal “is important

and must be exercised without discrimination, such a review is not a

requirement of due process”); District of Columbia v. Clowans, 300

U.S. 617, 627 (1937) (“Due process does not comprehend the right

of appeal.”); Luckenbach S.S. Co. v. United Staies, 272 U.S. 533,

536 (1926) (“the well-settled rule [is] that an appellate review is not

essential to due process of law, but is a matter of grace”); Standard

Oil Co. of Ind. v. Missouri, 224 U.S. 270, 287 (1912) (the “right of

appeal is not essential to due process”); Rogers v. Peck, 199 U.S.

425, 435 (1905) (“the state has the right to determine for itself. . .

the appellate tribunals, if any, to which such causes may be carried

to review”); Reetz v. Michigan, 188 U.S. 505, 507 (1903) (“we know

of no provision in the Federal Constitution which forbids a state from

granting to a tribunal, whether called a court or a board of registration,

the final determination of a legal question”); McCane v. Durston,

153 U.S. 684, 686 (1894) (“review by an appellate court of the final

judgment in a criminal case, however grave the offence of which the

accused is convicted, was not at common law, and is not now, a

necessary element of due process of law”); Andrews v. Swartz, 156

U.S. 272, 274 (1895) (same); The Francis Wright, 105 U.S. 381,

386 (1881) (“The whole of a civil law appeal may be given, or a

part. The constitutional requirements are all satisfied if one

opportunity is had for the trial of all parts of a case. Everything beyond

that is matter of legislative discretion, not of constitutional right.”).

19

States therefore are free to permit or restrict rights of

appeal however they see fit:

“(Appellate review] is wholly within the

discretion of the state to allow or not to allow such

a review.” “It is therefore clear that the right of

appeal may be accorded by the state to the accused

upon such terms as, in its wisdom, may be proper;”

and “whether an appeal should be allowed, and,

if so, under what circumstances or on what

conditions, are matters for each state to decide.”

Andrews v. Swartz, 156 U.S. 272, 274 (1895) (quoting

McCane v. Durston, 153 U.S. 684, 687 (1894)). This is true

even in capital cases. See id.; Rogers v. Peck, 199 U.S. 425,

435 (1905); Kohl v. Lehlback, 160 U.S. 293, 297-99 (1895).

In at least two states (Virginia and West Virginia) appeals

remain discretionary, notwithstanding Petitioner’s asserted

constitutional right.

This black-letter principle is dispositive. Petitioner does

not, and cannot, suggest that he was denied due process in

the trial court proceedings. He does not contend that more

than 100 years of this Court’s jurisprudence regarding the

lack of a constitutional right of appeal of final judgments

was in error. Thus, the Petition implicitly devolves to the

absurd proposition that a constitutional right of appeal

adheres to interlocutory collateral orders but not to final

judgments.

Instead of accounting for this settled and dispositive case

law, Petitioner asserts that Sel/ signaled a sea-change in the

rights of interlocutory appeal. Sell, according to Petitioner,

did not just rest upon the collateral order doctrine but also

\

20

upon some implied constitutional principle that is sufficient,

in and of itself, to establish a right of interlocutory appeal if

constitutional issues are raised. See Pet. at 13-15. This

argument is utterly meritless.

Sell neither stated nor implied any new constitutional

principle regarding rights of appeal. Rather, it merely found

that the order compelling administration of antipsychotic

medication satisfied the collateral order doctrine as set forth

in Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

See Sell, US. at, 123 S. Ct. at 2182 (“this Distr'ct

Court order does appear to fall within the ‘collateral order’

exception” to the final judgment rule). And the collateral

order doctrine itself is nothing more than a “practical rather

than a technical construction” of the statutory requirement

for final judgments for appeals brought under 28 U.S.C.

§ 1291. Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541, 546 (1949). Otherwise, had Se// intended a new

constitutional right of appeal for interlocutory orders

affecting alleged constitutional rights, it would not have

analyzed whether the important issue was “‘completely

separate from the merits of the action,’” a pivotal element of

the collateral order doctrine that is missing here. Compare

Sell, U.S. __, 123 S. Ct. at 2182 (quoting Coopers, 437

U.S. at 468) with A8 (explaining why discovery order was

intertwined with merits). |

Admitting that Se// is “murky” on the issue — a

euphemism for utterly silent — Petitioner tries to find support

from a few cases that he contends are “at odds” with the

Court of Appeals of Maryland’s decision. See Pet. at 8. These

cases do nothing of the sort, as each simply relied on the

collateral order doctrine or unique features of state law, and

none involved discovery orders. Jn re Master Key Antitrust

21

Litig., 528 F.2d 5, 11 (2d Cir. 1975), dismissed an

interlocutory appeal of an antitrust class action as failing to

satisfy the collateral order doctrine; the only “constitutional”

A issue concerned a due process challenge to a consolidation

order. Jn re-Brittany S., 147 N.H. 489, 490, 792 A.2d 384,

a 385 (2002), merely invoked a state supreme court rule giving

| it discretion to hear interlocutory appeals. And in

1 Commonwealth v. $9,847.00 U.S. Currency, 550 Pa. 192, 196,

i 704 A.2d 612, 614 (1997), reversing id. 161 Pa. Com. 548,

637 A.2d 736 (1994), the Pennsylvania Supreme Court

rejected the decision of the intermediate court, relied upon

by Petitioner here, that the appeal could proceed under the

collateral order doctrine, and instead reversed the

intermediate court under a statute giving it discretion to hear

extraordinary cases.

Petitioner also fails to account for cases such as Bowles

v. Comm 'l Cas. Ins. Co., 107 F.2d 169, 170 (4th Cir. 1939)

and Reise v. Bd. of Regents, 957 F.2d 293, 295 (7th Cir. 1992),

which have denied interlocutory appeals of examinations

ordered under Rule 35. Those cases, along with the many

decisions rejecting interlocutory appeals of orders denying

the privilege against self-incrimination, the attorney-client

privilege, and other vital rights, confirm the lack of a

constitutional issue here.

Finally, Petitioner’s claimed constitutional right simply

) is not tenable as a practical matter and thus fails the Matthews

j v. Eldridge three-part test for procedural due process. “

See Matthews v. Eldridge, 424 U.S. 319, 334-35 (1976) (due

process rights depend, in part, on fiscal and administrative

burdens posed by additional requirements). If any order

alleged to infringe constitutional rights were automatically

appealable on an interlocutory basis, the impact on trial courts

22

would be extreme. Blood tests ordered in paternity

cases, mental examinations in custody cases, property

inspections or access ordered in real estate or environmental

contamination cases, and testimony by deponents or

witnesses claiming Fifth Amendment privilege against self-

incrimination all could be subject to interlocutory appeals.

As the 22-year delay in this case attests, such a rule would

wreak procedural havoc on trial courts.

E. The State Court Decision Is Not Final.

Finally, this Court lacks jurisdiction under 28 U.S.C.

§ 1257(a), as the appeal is interlocutory and not an appeal

from a final judgment or decree of the highest state court.

Although the decision of the Court of Appeals of Maryland

is final as to the application of the Maryland collateral order

doctrine, it neither decides Petitioner’s constitutional

challenge based upon Cruzan v. Dir., Mo. Dept. of Health,

497 U.S. 261 (1990), nor satisfies the federal collateral order

doctrine under 28 U.S.C. § 1291. Both grounds preclude

review here.

First, state court judgments are not final if further

proceedings might address federal issues. See Flynt v. Ohio,

451 U.S. 619, 622 (1981) (per curiam) (possibility of

“piecemeal review with respect to [additional] federal issues”

renders state court ruling non-final irrespective of whether

case satisfies exceptions to final judgment rule); Radio

Station WOW, 326 U.S. at 127 (“where the remaining

litigation may raise other federal questions that may later

come here,... to allow review of an intermediate

adjudication would offend the decisive objection to

fragmentary reviews’).

23

Second, discovery orders are not final under the federal

collateral order doctrine unless the party is held in contempt.

See Cunningham v. Hamilton County, 527 U.S. 198, 208-09

(1999) (only contempt citation renders discovery sanction

appealable final order).° If the order is not final under

28 U.S.C. § 1291(a), it is not final under § 1257(a).

CONCLUSION

For the foregoing reasons, the Court should deny the

petition for a writ of certiorari.

Respectfully submitted,

J. MICHAEL RECHER MITCHELL Y. Mirviss

RupoPH E. DEMEO Counsel of Record

RECHER & DEMEo, LLC VENABLE LLP

300 Allegheny Avenue 1800 Mercantile Bank

Towson, Maryland 21204 & Trust Bldg.

(410) 825-3100 Two Hopkins Plaza

Baltimore, Maryland 21201

(410) 244-7400

Attorneys for Respondent

Eugenia Berg

6. Accord, United States v. Philip Morris Inc , 314 F.3d 612, 619

(D.C. Cir. 2003) (order to disclose allegedly privileged materials deemed

final because civil contempt is not immediately appealable in D.C.

Circuit); FDIC v. Ogden Corp., 202 F.3d 454, 548 n.2 (1st Cir. 2000)

(discovery order not final until contempt); Connaught Labs., Inc. v.

SmithKline Beecham P.L.C., 165 F.3d 1368, 1370 (Fed. Cir. 1999) (order

not final where review could be obtained after contempt citation). MDK,

Inc. v. Mike's Train House, Inc., 27 F.3d 116, 121-22 (4th Cir. 1994);

Reise, 957 F.2d at 295 (“A party aggrieved by the order assures eventuai

review by refusing to comply.”).