# Opposition Brief — Foley v. Berg

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 948

## Text

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.”).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1949%3A2. Public record. Not legal advice.