author: FRIEDMAN, J.

text:
    126 A.3d 739
    Richmond D. PHILLIPS, v. STATE of Maryland.
    No. 456,
    Sept. Term, 2013.
    Court of Special Appeals of Maryland.
    Oct. 27, 2015.
    Reconsideration Denied Dec. 24, 2015.

      Daniel Kobrin (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
    Robert Taylor, Jr. (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
    Panel: LEAHY, FRIEDMAN, IRMA S. RAKER (Retired, Specially Assigned), JJ.
   FRIEDMAN, J.

This case requires us to decide what to do with a statute that appears to be obsolete regarding the admissibility of DNA evidence.

Following a jury trial in the Circuit Court for Prince George’s County, appellant Richmond Phillips (“Phillips”) was convicted of two counts of murder in the first degree, one count of use of a handgun in a crime of violence, and one count of child abuse in the first degree. He was sentenced to two consecutive terms of life imprisonment without the possibility of parole. On appeal, Phillips challenges the DNA evidence the State used against him. The State argues that the DNA evidence was automatically admissible under § 10-915 of the Courts and Judicial Proceedings (“CJP”) Article of the Maryland Code. Section 10-915, however, requires that, to be admissible, a DNA profile must include certification that the analysis was performed according to standards promulgated by two entities that no longer exist. Phillips asserts that the DNA evidence failed to comply with this factually obsolete statute and, therefore, that the trial court was correct in conducting a Frye-Reed hearing to determine whether to admit the DNA evidence. Phillips alleges, however, that the trial court erred in concluding that the DNA evidence was admissible under Frye-Reed.

For the following reasons, we will affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL HISTORY

Phillips was charged and convicted of the murders of his ex-girlfriend, Wynetta Wright, and their 11-month-old child, Jaylin Wright. Wynetta’s body was found in a park near the Hillcrest Heights Community Center. Wynetta died of a gunshot wound to the head. Jaylin was found dead in Wynet-ta’s car in a nearby parking lot. Jaylin died of hyperthermia as a result of being left in a hot vehicle for an extended period of time. Phillips admitted to meeting with Wynetta during the early morning hours of May 31, 2011, but denied any part in her or their child’s death.

The police obtained DNA samples, which were tested in June 2011 by forensic chemist Jessica Charak of the Prince George’s County DNA laboratory. Two of the DNA samples are relevant to this appeal: one was from the steering wheel of Wynetta’s car, and the other was from Phillips’ buccal swab. Based on DNA analysis of the two samples, it was Charak’s opinion that the steering wheel sample contained material that was consistent with Phillips’ DNA and, therefore, Phillips could not be excluded as a contributor. The steering wheel sample also contained genetic material from Wynetta, Jaylin, and two other unknown contributors. In her report, Charak calculated that “[t]he chances of selecting an unrelated individual from the random population who would be included as a possible contributor to the mixed DNA profile obtained from the evidence sample at the remaining tested loci are approximately ... 1 in 2.93 million individuals in the African American population.” Additionally, Charak’s report included the following statement that figures prominently in this appeal: “The DNA profiles reported below were determined by procedures which have been validated according to the Federal Bureau of Investigation’s Quality Assurance Standards for Forensic DNA Testing Laboratories.”

Prior to trial, Phillips filed a motion in limine to exclude any expert testimony pertaining to the State’s DNA evidence, asserting that the Prince George’s County DNA laboratory’s interpretation of complex, low copy number DNA samples was not based on generally accepted scientific standards and was thus inadmissible under the Frye-Reed standard. The State countered that the DNA evidence at issue is automatically admissible under CJP § 10-915 (the “DNA Admissibility Statute”).

The trial court undertook a two-step process to determine the admissibility of expert testimony pertaining to the disputed DNA analysis. First, the trial court held a hearing to determine whether the Prince George’s County DNA laboratory was in compliance with the DNA Admissibility Statute, and whether the resulting DNA evidence was therefore automatically admissible without a Frye-Reed hearing. The trial court determined that the Prince George’s County DNA laboratory was not following the standards referred to by the DNA Admissibility Statute, and, therefore, that the DNA evidence was not automatically admissible pursuant to the statute. Second, the trial court conducted a Frye-Reed hearing. The trial court determined that the underlying scientific methods used by the Prince George’s County DNA laboratory were generally accepted in the relevant scientific community and, therefore, the DNA analysis would be admissible at trial.

The case proceeded to trial on January 14, 2013, and resulted in Phillips’ conviction. On March 22, 2013, the trial court sentenced Phillips to two consecutive terms of life imprisonment without the possibility of parole. This appeal followed.

DISCUSSION

I. Compliance with the DNA Admissibility Statute

Maryland’s DNA Admissibility Statute provides:

(a) (1) Definitions. — In this section the following words have the meanings indicated.
(2) “Deoxyribonucleic acid (DNA)” means the molecules in all cellular forms that contain genetic information in a chemical structure of each individual.
(3) “DNA profile” means an analysis of genetic loci that have been validated according to standards established by:
(i) The Technical Working Group on DNA Analysis Methods (TWGDAM); or
(ii) The DNA Advisory Board of the Federal Bureau of Investigation.
(b) In general. — A statement from the testing laboratory setting forth that the analysis of genetic loci has been validated by standards established by TWGDAM or the DNA Advisory Board is sufficient to admit a DNA profile under this section.
(c) Purposes. — In any criminal proceeding, the evidence of a DNA profile is admissible to prove or disprove the identity of any person, if the party seeking to introduce the evidence of a DNA profile:
(1) Notifies in writing the other party or parties by mail at least 45 days before any criminal proceeding; and
(2) Provides, if applicable and requested in writing, the other party or parties at least 30 days before any criminal proceeding with:
(i) First generation film copy or suitable reproductions of autoradiographs, dot blots, slot blots, silver stained gels, test strips, control strips, and any other results generated in the course of the analysis;
(ii) Copies of laboratory notes generated in connection with the analysis, including chain of custody documents, sizing and hybridization information, statistical calculations, and worksheets;
(iii) Laboratory protocols and procedures utilized in the analysis;
(iv) The identification of each genetic locus analyzed; and
(v) A statement setting forth the genotype data and the profile frequencies for the databases utilized.
(d) Prerequisites. — If a party is unable to provide the information required under subsection (c) of this section at least 30 days prior to the criminal proceedings, the court may grant a continuance to permit such timely disclosures.
(e) Discovery. — Except as to the issue of admissibility under this section, subsection (c) of this section does not preclude discovery under the Maryland Rules relating to discovery, upon a showing of scientific relevance to a material issue regarding the DNA profile.

CJP § 10-915. The import of the statute is clear: so long as the sponsoring party complies with the notice provisions of subsection (c), a DNA profile will be automatically admissible to prove or disprove identity if it is accompanied by a statement from the testing laboratory that it was “validated by standards established by TWGDAM or the DNA Advisory Board.” CJP § 10—915(b). In Phillips’ case, however, the DNA profile was accompanied by a certification stating, “[t]he DNA profiles reported below were determined by procedures which have been validated according to the Federal Bureau of Investigation’s Quality Assurance Standards.”

Thus, the threshold question is whether compliance with the FBI’s Quality Assurance Standards is sufficient for automatic admissibility or whether we must insist on compliance with standards issued by TWGDAM or the DNA Advisory Board. If compliance with the FBI Quality Assurance Standards is sufficient, then the steering wheel DNA sample is automatically admissible because the Prince George’s County DNA laboratory complied with those standards. If, on the other hand, the DNA analysis needed a statement that it complied with standards from either TWGDAM or the DNA Advisory Board (which it did not have), then the steering wheel sample is not automatically admissible. If not automatically admissible for this reason, the DNA analysis must satisfy the Frye-Reed standard of general acceptance in the scientific community before it may be admitted.

The issue is made more complicated because neither TWGDAM nor the DNA Advisory Board remain in existence. SWGDAM, About Us, http://perma.cc/VHA5-5FXX. Accordingly, compliance is impossible today.

1. The Problem of Obsolete Statutes

Statutes, from time to time, become obsolete. Statutes can become legally obsolete when they are completely superseded by a subsequent legislative enactment (but, for whatever reason, not deleted) or are declared unconstitutional by the United States Supreme Court or by the appellate courts of this State. Thus, for example, adoption of Article 46 of the Maryland Declaration of Rights (Maryland’s Equal Rights Amendment) rendered the “necessities statute,” (then Md. Code. Ann. Art. 45, § 21), whereby a husband was legally responsible for his wife’s expenses, legally obsolete. Condore v. Prince George’s County, 289 Md. 516, 530, 425 A.2d 1011 (1981). There are many other examples. The code revision process is the principal but not the only means for removing legally obsolete provisions from the Maryland Code.

Statutes may also become factually obsolete. Conditions change. Laws drafted for the horse and buggy don’t make sense for automobiles; some current automobile laws may not make sense for driverless cars. Unfortunately, unlike code revision, there is no regularized mechanism for eliminating factually obsolete statutes. While a legislature may delete a factually obsolete statute when it is noticed, combing the Code for factually obsolete statutes is generally not a high legislative priority. Judge Guido Calabresi and others have referred to this concept as legislative inertia — the recognition that it is easier to leave obsolete statutes than it is to remove or revise them. Guido Calabresi, A Common Law for the Age of Statutes 2 (1982) [hereinafter Calabresi]; Archibald Cox, Book Review, A Common Law for the Age of Statutes; by Guido Calabresi 70 Cal. L.Rev. 1463, 1464 (1982) (“the obsolete law remains ... because of inertia”). The result is that many factually obsolete statutes remain on the books.

Courts have generally taken three different approaches when dealing with factually obsolete statutes: (1) enforce the statute “as is”; (2) invent a new interpretation, unimagined by the legislative drafters, that saves the statute from obsolescence; or (3) declare the obsolete statute unconstitutional. Calabresi at 6. As Judge Calabresi puts it:

Faced with [the problem of an obsolete statute], it is little wonder that the least willful judges have responded to their task with open aversion, but have enforced time-worn interpretations of even more time-worn laws. Other judges have acted far more aggressively and used the Constitution or far-fetched interpretations to make obsolete laws functional.

Id. All of these approaches are unsatisfactory. Applying a factually obsolete statute “as is” can result in serious injustice. See, e.g., id. at 6 n. 26 (citing Behrns v. Burke, 89 S.D. 96, 229 N.W.2d 86 (1975) (stating that a statute was “unreasonable ... In fact, unreasonable may be too kind an expression,” yet upholding the statute)). Inventing a far-fetched interpretation to save an obsolete statute makes the court appear willful and undermines its important role in conscientious and careful modes of ordinary statutory interpretation. See id. at ch. IV (discussing the problems that arise from judges using “stretched” interpretations of obsolete statutes). Perhaps worst of all is the choice to declare an obsolete statute unconstitutional. “Calabresi ... cites scores of cases in which the courts have declared obsolete statutes unconstitutional when such a conclusion could not be justified by any cogent constitutional analysis....” Richard Neely, Obsolete Statutes, Structural Due Process, and the Power of Courts to Demand a Second Legislative Look, 131 U. Pa. L.Rev. 271, 277 (1982) [hereinafter Neely] (“The problem has traditionally been that due process and equal protection are the only constitutional theories available to unimaginative courts.”). Stretching constitutional doctrines to judicially revise or eliminate obsolete statutes weakens the doctrines:

New things will destroy judicial review, and weaken those rights we want to have protected by the Constitution, more effectively than its use to overcome legislative inertia in areas involving bad law, perhaps, but no real constitutional issue. Even correct results in cases of this sort, where the Constitution is used to invalidate a law that was only held in place by inertia and was inconsistent with other prevailing legal principles, will tend to spawn highly vulnerable constitutional doctrines and hence may weaken the “core” rights that need to be protected by our constitutions.

Calabresi at 11-12. Of course, a judicial determination that a particular statute is obsolete exacerbates the problem of legislative inertia by foreclosing the possibility of a legislative revision:

Once the courts have modified or invalidated a statute on constitutional grounds, they have done much more than act in an area of legislative inertia. If the courts’ aim is only to update in an area of inertia and if they are wrong in their judgment that a statute which does not fit the legal fabric no longer has majoritarian support, their use of constitutional adjudication makes legislative correction of their mistake impossible. The consequence of a wrong guess is not merely legislative revision, as in common law adjudication; a wrong guess will entail either a constitutional amendment or the dominance of judge-made law.

Id. at 11.

Cognizant of the challenges presented by obsolete statutes, and mindful of the pitfalls of the three approaches courts have taken, it is our view that the best way to proceed with an obsolete statute is not to take any of the three, but to rely on the traditional tools of statutory interpretation to effectuate the legislature’s intent, as we have previously done when dealing with outdated statutes. See, e.g., Sieglein v. Schmidt, 224 Md.App. 222, 242, 120 A.3d 790 (2015) (interpreting “artificial insemination” in parentage statute to encompass in vitro fertilization — a newer reproductive technology that didn’t exist at the time of the statute’s enactment — because the legislature intended to “acknowledge the role of medically assisted, nontraditional conception of a child in establishing a parent’s rights and obligations”). Therefore, we will attempt to discern the legislature’s intent in passing the DNA Admissibility Statute. Our principal aim in this undertaking is to determine if and how the legislature would have intended for us to enforce this now-obsolete statute.

Thus, we hold that the proper way to deal with a statute that is obsolete on its face is to look to the legislature’s intent and work to effectuate that intent in the present legal and factual landscape. We note that it will not always be the case that the legislature will tell us what to do if a statute becomes obsolete. In this instance, however, we conclude that it did.

2. Discerning Legislative Intent

The DNA Admissibility Statute’s legislative history is instructive. Our review strongly suggests that the 1997 statute was enacted to address a perceived drafting flaw in a previous version. The 1991 version of the DNA Admissibility Statute allowed automatic admissibility of DNA that was analyzed with the restriction fragment length polymorphism method (“RFLP”), which it specified by name. CJP § 10-915 (1991) (amended 1997). By 1997, however, the RFLP method for DNA analysis had been superseded by a new technique, the polymerase chain reaction method (“PCR”). Jud. Proc. Comm., Bill Analysis: H.B. 414 (1997). Laboratories were using PCR but, because the 1991 DNA Admissibility Statute specified only RFLP by name, PCR was not automatically admissible. Id. In effect, the 1991 statute had become obsolete. As a result, state’s attorneys throughout Maryland were forced to justify their use of PCR in every case at expensive Frye-Reed hearings. State of Maryland Department of State Police, Position on Proposed Legislation HB 414 (Feb. 11, 1997) (“An enormous amount of time and money has been spent defending PCR methods at [Frye-Reed] Hearings in various Circuit Court[s] in the State.”).

In drafting the 1997 DNA Admissibility Statute, the General Assembly wanted to eliminate the need for Frye-Reed hearings for PCR analysis. See Jud. Proc. Comm., Bill Analysis: H.B. 414 (1997). (“This statute obviates the need for a Frye-Reed hearing on the admissibility of [PCR] evidence. This will save the State and the counties money and will keep law enforcement personnel out of court.”) Furthermore, we gather that the legislature did not want to repeat the drafting weakness of the 1991 statute and identify the PCR method by name — such that when scientific advances inevitably replace PCR, the 1997 statute would become obsolete too. Rather, the legislature cleverly delegated the power to approve new DNA analysis techniques to two national standards-setting entities on the cutting edge of DNA science, TWGDAM and the DNA Advisory Board. Id. (“This bill expands the definition of “DNA profile” to include an analysis of genetic loci that has been validated according to standards established by either the Technical Working Group on DNA Analysis Methods (TWGDAM) or the FBI DNA Advisory Board.”) In that way, we see that the 1997 DNA Admissibility Statute was designed to be obsolescence-proof. If a new technique was good enough for TWGDAM and the DNA Advisory Board, it would be good enough for automatic admissibility in Maryland courts. Id. Those standards-setting entities soon became defunct, however, in effect, rendering the obsolescence-proof statute, ironically, obsolete. SWGDAM, About Us, http://perma.cc/VHA5-5FXX. Nevertheless, we discern that the legislature intended to create a statute that would track cutting-edge DNA science and ensure automatic admissibility only if the DNA techniques complied with the standards promulgated by the most rigorous standards-setting body available.

3. Effectuating Legislative Intent

Having determined that the legislative intent in adopting the DNA Admissibility Statute was to permit automatic admissibility for cutting-edge DNA analysis if that analysis complied with the standards promulgated by the most rigorous standards-setting body, we must now determine if the Prince George’s County DNA laboratory’s DNA analysis— performed in compliance with the FBI’s Quality Assurance Standards — satisfies that test. We find it useful, as the trial court did, to contrast the FBI’s Quality Assurance Standards to those set by the Scientific Working Group on DNA Analysis Methods (“SWGDAM”).

First, we recognize that SWGDAM is both the successor entity and the successor “in spirit” to both TWGDAM and the DNA Advisory Board. SWGDAM succeeded both of those organizations as the entity responsible for developing rigorous DNA analysis standards and recommending revisions to the FBI Quality Assurance Standards. SWGDAM, About Us, supra. TWGDAM developed the original guidelines for DNA analysis, beginning in 1989. Id. The forensic DNA community followed TWGDAM’s guidelines when implementing their programs, making the guidelines the de facto standards, “recognized by courts as minimum requirements for a quality DNA forensic analysis program.” Id. Like TWGDAM, the DNA Advisory Board, established by the DNA Identification Act of 1994, produced comprehensive standards for the forensic DNA community. John M. Butler, Forensic DNA Typing 593 (2d ed. 2005) [hereinafter Butler]. The DNA Advisory Board was responsible for recommending standards and revisions to the FBI for inclusion in the FBI Quality Assurance Standards. SWGDAM, About Us, supra.

TWGDAM and the DNA Advisory Board no longer exist, and their responsibility for recommending rigorous standards for cutting-edge DNA technology has been transferred to SWGDAM. Id. In 1998, TWGDAM was renamed the “Scientific Working Group on DNA Analysis Methods” or SWGDAM. Butler at 394. In 2000, the DNA Advisory Board expired at the end of its statutory term and “transferred responsibility for recommending revisions of [the FBI] Quality Assurance Standards to the Scientific Working Group on DNA Analysis Methods (SWGDAM).” FBI, CODIS — Quality Assurance, http://perma.cc/7HHX-2X7E. SWGDAM succeeded TWGDAM and the DNA Advisory Board as the entity charged with recommending revisions for DNA analysis standards to the FBI. SWGDAM, About Us, supra. We have no doubt, as the trial court concluded, that a DNA analysis would be automatically admissible, pursuant to the DNA Admissibility Statute, if it bore a statement that it had been conducted pursuant to standards promulgated by SWGDAM.

By contrast, the FBI Quality Assurance Standards fulfill a different purpose. Unlike SWGDAM’s recommendations, which are based on cutting-edge DNA science, the FBI Quality Assurance Standards are the minimum requirements that must be followed by forensic DNA laboratories. FBI, CODIS — Quality Assurance, supra; SWGDAM, Frequently Asked Questions, http://perma.cc/H8LL-Q7EK (“[SWGDAM guidelines] are intended to provide additional guidance to the DNA community ... and should not be treated as requirements or minimum standards for forensic DNA laboratories”) As such, SWGDAM’s recommendations are forwarded to the FBI for consideration, but the FBI is not required to incorporate every revision that SWGDAM recommends for the FBI Quality Assurance Standards. SWGDAM, About Us, supra. Furthermore, when the FBI does adopt a SWGDAM recommendation, the revised standard often does not apply retroactively. SWGDAM, Frequently Asked Questions, supra; see FBI, SWGDAM Interpretation Guidelines for Autosomal STR Typing by Forensic DNA Testing Laboratories, available at http://perma.cc/7D4J-D8J3 (“The revised guidelines are not intended to be applied retroactively.”). Accordingly, although SWGDAM provides recommendations based on cutting-edge DNA techniques and research, older protocols that are “good enough” remain in force because either the FBI chooses not to follow SWGDAM’s recommendation or does not retroactively implement the recommendation. SWGDAM, Frequently Asked Questions, supra (stating that there is an underlying assumption that “work (validation, training, analysis, interpretation) performed prior to the issuance of the revisions was appropriate and scientifically valid”). Therefore, we conclude that, unlike SWGDAM recommendations, the FBI Quality Assurance Standards do not reflect the most recent advances in DNA analysis. Thus, we hold that while a DNA analysis conducted pursuant to the FBI Quality Assurance Standards may be admissible, it is not automatically admissible under the DNA Admissibility Statute. Therefore, the trial court was correct in finding that the steering wheel DNA sample was not automatically admissible under the DNA Admissibility Statute.

II. Frye-Reed Analysis

Having determined that the analysis of the steering wheel DNA sample is not automatically admissible under the DNA Admissibility Statute, we now turn to whether the trial court properly applied the Frye-Reed standard in concluding that the Prince George’s County DNA laboratory used generally accepted scientific methodology to analyze the sample.

Phillips argues that the steering wheel DNA sample was inadmissible because the Prince George’s County DNA laboratory’s methodologies lacked reliability and general acceptance by the scientific community. Phillips challenges the following: (1) the lack of a stochastic threshold in analyzing the steering wheel sample; (2) the use of “a filtering technique in a way for which the technique was not validated;” and (3) the application of certain statistical computations to a DNA profile comparison, for which the computations are allegedly unfit to apply. While presented as three separate critiques of the Prince George’s County DNA laboratory’s methodologies, we note that Phillips’ second and third challenges to the analysis of the steering wheel sample are, in essence, reiterations of his first critique regarding the lack of a validated stochastic threshold.

We hold that the State sufficiently demonstrated that the Prince George’s County DNA laboratory’s analysis of the steering wheel sample was admissible under Frye-Reed. The laboratory complied with the FBI Quality Assurance Standards, which while insufficient for automatic admissibility under the DNA Admissibility Statute, are, for reasons that we will describe, sufficient to show that the analysis is generally accepted in the relevant scientific community. Moreover, the experts testified that forensic laboratories commonly use the same methods employed by the Prince George’s County DNA laboratory when analyzing complex, low copy number DNA. Therefore, any attack on the reliability of the DNA analysis properly went to the weight that the trier of fact should accord the evidence, rather than to its admissibility.

Under Maryland’s Frye-Reed standard, “before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.” Reed v. State, 283 Md. 374, 381, 391 A.2d 364 (1978). Maryland’s Frye-Reed “jurisprudence engages trial judges in a serious gate-keeping function, to differentiate serious science from ‘junk science.’ ” Blackwell v. Wyeth, 408 Md. 575, 591, 971 A.2d 235 (2009). The trial judge exercises this gatekeeping function by holding a pre-trial Frye-Reed hearing to determine “whether the challenged evidence is actually the product of a novel scientific technique and, if so, whether that technique is generally accepted in the relevant scientific community....” Clemons v. State, 392 Md. 339, 347 n. 6, 896 A.2d 1059 (2006). We review the trial court’s determination of whether a scientific opinion is generally accepted de novo. Blackwell, 408 Md. at 611, 971 A.2d 235.

At the Frye-Reed hearing in this case, the central issue was whether the Prince George’s County DNA laboratory had adequate methodologies to deal with the unique complications of complex, low copy number DNA. The DNA material in the steering wheel sample is both complex, meaning that there were three or more contributors, and low copy number, meaning that there was very little DNA material present. United States v. Davis, 602 F.Supp.2d 658, 669 (D.Md.2009) (“[Low copy number] testing involves testing minuscule amounts of DNA that fall below the (somewhat amorphous) stochastic threshold — around 100 picograms or less.”). Low copy number DNA is particularly susceptible to stochastic effects— random errors that make accurately analyzing the DNA more difficult — and increased risks of contamination. U.S. v. Morgan, 53 F.Supp.3d 732, 736 (S.D.N.Y.2014); Butler at 168-69.

Phillips argues that it is generally accepted that to analyze complex, low copy number DNA, forensic labs must adopt a validated stochastic threshold. During the Frye-Reed hearing, two experts testified: Jessica Charak testified on behalf of the State and Dr. Charlotte Word testified on behalf of Phillips. In particular, the experts disagreed about the necessity of a validated stochastic threshold when analyzing complex, low copy number DNA. Both experts agreed, however, that (1) the Prince George’s County DNA laboratory complied with the FBI Quality Assurance Standards, even though it did not use a stochastic threshold when analyzing the steering wheel sample; and (2) other forensic laboratories interpret complex, low copy number DNA without a validated stochastic threshold.

First, Charak, a DNA analyst from the Prince George’s County DNA laboratory, testified that the laboratory was fully compliant with the FBI Quality Assurance Standards, even though it did not employ a validated stochastic threshold. The genetic analyzer kit used to amplify the DNA in the steering wheel sample was validated in 2008, under a previous version of the FBI Quality Assurance Standards that did not require a stochastic threshold. While the current FBI Quality Assurance Standards require laboratories to establish a validated stochastic threshold as part of their internal validation procedures, that requirement was specifically not made retroactive, based on an assumption that the work performed prior to the requirement was appropriate and scientifically valid. FBI, Quality Assurance Standards for Forensic DNA Testing Laboratories, available at http://perma.cc/M84U-FYMP; SWGDAM, Frequently Asked Questions, supra. Thus, the Prince George’s County DNA laboratory was fully compliant with the relevant FBI Quality Assurance Standards even though the analysis of the steering wheel sample did not include a stochastic threshold.

Second, other forensic laboratories interpret complex, low copy number DNA using the methodology employed by the Prince George’s County DNA laboratory. Dr. Word, Phillips’ expert witness, testified that validated stochastic thresholds are a best practice, but that not all laboratories use them. In her view, without a validated stochastic threshold, a laboratory cannot reliably determine whether an individual’s DNA is actually present in a complex, low copy number DNA sample. Dr. Word was unable, however, to say that laboratories actually employ validated stochastic thresholds:

[COUNSEL FOR STATE]: And is it generally the practice that forensic laboratories using [the] technique [used by the Prince George’s County DNA laboratory] conduct additional valuation studies to determine analytic and stochastic threshold[s] ... ?
[DR. WORD]: It is essential the correct procedure should be done. I don’t know that many labs that have done it, but it should be done.

Regarding typical forensic laboratories, Dr. Word further testified that laboratories would interpret complex, low copy number DNA samples:

[COUNSEL FOR STATE]: Let me ask you, would other labs interpret [complex, low copy number DNA]?
[DR. WORD]: I think, unfortunately, other labs are, but I think they should not be, because the appropriate valuation studies to do the interpretation of these types of samples simply have not been done.
* * *
[COUNSEL FOR STATE]: And [is it] common that [complex, low copy number DNA samples are] being interpreted?
[DR. WORD]: I believe, unfortunately, that is probably true. I know a handful of labs that are interpreting, though I don’t know what everyone is doing, but there are labs that are interpreting them.

Dr. Word explained that laboratories are using outdated, albeit verified, procedures to analyze increasingly complex DNA samples for which the old procedures are ill-equipped. In effect, Dr. Word’s testimony was that although all laboratories ought to use validated stochastic thresholds, many do so without those thresholds.

In our gatekeeping function, we do not operate to enforce emerging best practices in a rapidly evolving scientific field. Rather, we keep out “junk science.” Blackwell, 408 Md. at 591, 971 A.2d 235. In this case, while the use of a validated stochastic threshold may be the current best practice, the Prince George’s County DNA laboratory’s failure to use a stochastic threshold does not make its analysis “junk science.” Although, perhaps, not the best, most accurate, or most “cutting-edge” technique, the Prince George’s County DNA laboratory used a generally accepted methodology to analyze the steering wheel DNA sample. The laboratory followed Quality Assurance Standards promulgated by the FBI — the organization charged with setting minimum national standards for forensic laboratories. FBI, CODIS — Quality Assurance, supra. Additionally, Charak and Dr. Word both testified that forensic labs commonly use the methods employed by the Prince George’s County DNA laboratory when analyzing complex, low copy number DNA. For these reasons, we find that the lack of a validated stochastic threshold does not mean that the analysis performed was “junk science.” Any challenges to the Prince George’s County DNA laboratory’s lack of a set stochastic threshold properly goes, and did go, to weight rather than admissibility.

Because the Prince George’s County DNA laboratory’s methods were generally accepted in the relevant scientific community, we affirm the trial court’s admission of the steering wheel DNA evidence. This is not to say that Phillips could not challenge the DNA evidence on the basis of a lack of stochastic threshold. Rather, it is our view that the proper avenue to do so was either to cross-examine Charak or to call a rebuttal expert to attack the weight of the evidence. We find it telling that Phillips chose not to do so.

III. Right to a Public Trial

Phillips’ final argument on appeal is that the trial court improperly “sealed” a portion of his trial in violation of the Sixth Amendment’s guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const.amend. VI. Phillips urges us to find that in doing so, the trial court committed reversible error. As the courtroom was never closed to the public, however, there was no error, much less a violation of Phillips’ constitutional rights.

Under the United States Constitution as applied in Maryland courts, “criminal trials are to be open to the public as a matter of course, and any closure of the courtroom for even part of the trial and only affecting some of the public must be done with great caution.” Robinson v. State, 410 Md. 91, 102, 976 A.2d 1072 (2009). The right to a public trial, however, is not absolute:

The Sixth Amendment does not require a court to forfeit its legitimate and substantial interest in maintaining security and order in the courtroom. To the contrary, prophylactic measures, including closure, may be warranted under some circumstances, in order to maintain order, to preserve the dignity of the court, and to meet the State’s interests in safeguarding witnesses and protecting confidentiality.

Walker v. State, 125 Md.App. 48, 69, 723 A.2d 922 (1999).

At Phillips’ trial, the trial court closed the courtroom while the jury instructions were read. Prior to issuing the jury instructions, the trial court explained that to prevent the jury, from being distracted, people would be prevented from exiting or entering the courtroom during the reading of the instructions:

THE COURT: Now, just so everyone knows, once the jury comes in, we’re going to be sealing the courtroom for jury instructions. So if you do not want to be in here to hear jury [instructions, you can leave. Once we seal the courtroom, no one will be able to leave the courtroom until we conelude[ ] the jury instructions. Okay.
[COUNSEL FOR PHILLIPS]: I do object to the sealing of the courtroom during instructions.
THE COURT: Okay, I’m going to seal the courtroom during instructions____Mr. Bailiff, I will ask you [to] check [ ] the hallway. If anyone wants to come in the courtroom, let me know. We’re going to seal the courtroom until after the jury comes in.
[The jury enters and is seated]
* * *
THE COURT: At this time I’m going [to] ask you Mr. Bobo to seal the courtroom. Mr. Bobo, please inquire whether or not there is anyone in the hallway that wishes to come in.
Or, if there is anyone in the courtroom that wishes to step out during instructions, please do so at this time. If not, I’m going to ask you remain in your seat until we conclude instructions.

(emphasis added). The trial court made repeated efforts to ensure that anyone who wished to be present was in attendance. The public was not excluded from this portion of the trial. Therefore, there was no Sixth Amendment violation. Other courts that have considered similar fact situations have reached the same result. See United States v. Scott, 564 F.3d 34 (1st Cir.2009) (holding that there was no closure where spectators were prohibited from entering and exiting during jury instructions); State v. Brown, 815 N.W.2d 609 (Minn.2012) (same). We affirm the sound discretion of the trial court in temporarily closing the courtroom from persons who wished to enter or exit while the jury instructions were read.

JUDGMENTS OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . A forensic DNA sample “is a biological sample originating from and associated with a crime scene.” FBI, Quality Assurance Standards for Forensic DNA Testing Laboratories, available at http://perma.cc/M84U-FYMP. A DNA profile refers to the data generated from analyzing a specific DNA sample. United States v. Davis, 602 F.Supp.2d 658, 664 (D.Md.2009).

      . A buccal swab is "obtained by swabbing the cheek area inside of a person’s mouth.” Derr v. State, 434 Md. 88, 99 n. 6, 73 A.3d 254 (2013) (internal quotation omitted).

      . A “complex” DNA sample refers to a DNA sample that includes genetic material from three or more individuals. Charlotte Word, NIJ Conference, 2012: Complex Mixtures, available at http://perma.cc/DY85-VGBK. “Low copy number” DNA analysis "involves testing minuscule amounts of DNA that fall below the (somewhat amorphous) stochastic threshold — around 100 picograms or less." Davis, 602 F.Supp.2d at 669.

      . Under Maryland's Frye-Reed standard, "before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.” Reed v. State, 283 Md. 374, 381, 391 A.2d 364 (1978) (citing Frye v. United States, 293 F. 1013 (D.C.Cir.1923)).

      . Alan M. Wilner, Blame It All On Nero: Code Creation and Revision in Maryland (Feb. 14, 1994), available at http://perma.cc/884L-QTZ5 (describing code revision process); Department of Legislative Services, Legislative Drafting Manual 2015, 173 (September 2014), available at http://perma.cc/7KQP-M5DJ (identifying code revision’s goal as “elimi-nat[ing] obsolete laws ... if this can be done without substantive change”). To ensure that no law with continuing viability is deleted due to a premature declaration of obsolescence, all laws thought to be obsolete during the code revision process are referred to the Attorney General of Maryland for determination. See, e.g., 98 Op. Att’y Gen. 98 (Oct. 31, 2013), available at http://perma.cc/LQ9K-D5HF (determining statutory provisions to be obsolete and subject to repeal without effecting substantive change in the law). In 2014, the General Assembly changed the duties of the Department of Legislative Services from ”carry[ing] on continuous full time formal revision of statutory law” to ”complet[ing] the formal revision of statutory law” thereby signaling the end for code revision. S.B. 172 (2014) (codified at Md.Code Ann., State Gov’t § 2-1238(7)).

      . This spawns an entire genre of "humor” making fun of factually obsolete laws, including the canard that it is illegal to take a lion to the theatre in Maryland. The Dumb Network, Dumb Laws, http://perma.cc/ W49M-B85W.

      . Calabresi proposes a controversial solution to address statutory obsolescence — "structural due process,” which assumes that "constitutions imply a right to periodic, intelligent review of obsolete laws.” Neely at 278. "Thus, when a law is entirely at odds with the prevailing legal landscape, a right arises in the citizen to be free from institutional inertia.” Id. Structural due process would permit courts to send an obsolete statute “back to the legislature for a second look.” Id. No court has adopted Calabresi’s theory. The West Virginia Supreme Court of Appeals came close, mentioning in dicta a version of Calabre-si’s theory (without remand to the legislature). W.Va. ex. rel. S.M.B. v. D.A.P., 168 W.Va. 455, 284 S.E.2d 912, 915 (1981). The criticism of structural due process is a fear that "power-hungry judges” will use the doctrine in an unprincipled way that would threaten the separation of powers between the judiciary and the legislature. Id. at 281.

      . A stochastic threshold is a threshold value applied by a DNA analyst to determine whether all of the DNA information was detected for a given sample. FBI, SWGDAM Interpretation Guidelines for Autosomal STR Typing by Forensic DNA Testing Laboratories, supra.

      . The State argues that while the trial court called the hearing a Frye-Reed hearing, the hearing that took place was actually an admissibility hearing under Md. Rule 5-702. We disagree. It is plain from the transcript that the trial court both called it a Frye-Reed hearing, and conducted it as such:
      THE COURT: [T]he Court finds that I must have a Frye-Reed hearing on this issue before we can go any further.
      The trial court’s ruling on the motion was also consistent with a Frye-Reed hearing, namely the trial court's conclusion that the scientific methodology was not novel, and was widely accepted in the relevant scientific community:
      THE COURT: What was disputed among the experts that testified was how this data should be analyzed and reported; namely, whether an analytical threshold would be used or if a stochastic threshold was required. It further becomes abundantly clear that is not a novel discussion.... SWGDAM issued recommendations. The stochastic threshold is several years old, but the FBI has never adopted them, nor have they issued a directive requiring a lab to eliminate the analytical threshold method of analyzing the data. Therefore, this Court finds that the underlying scientific theory is reliable, that the method is accepted as scientific phenomenon and supported by the evidence at the hearing, and that a majority of labs across the country are still employing the analysis threshold----

      . We note that other courts that have dealt with the admissibility of low copy number DNA analysis have reached varying results, none of which are controlling in this case. See People v. Collins, -A.D.3d -, 15 N.Y.S.3d 564, 585-86 (2015) (discussing three cases where courts held that low copy number DNA is admissible under certain circumstances, while holding that, in that court’s view, it was not sufficiently reliable to be admissible under New York’s version of the Frye standard).

      . While Phillips makes two additional challenges to the methodologies employed by the Prince George's County DNA laboratory, they are essentially finer-parsed arguments stemming from his primary claim that when dealing with complex, low copy number DNA, the only reliable methodology is to employ a validated stochastic threshold. As these arguments are derivative of the primary argument, our holding that the Prince George’s County DNA laboratory used generally accepted techniques likewise applies to Phillips’ two additional challenges.

        First, Phillips argues that the use of a post-amplification filtration system after the steering wheel sample has already undergone PCR amplification is not a generally accepted methodology. This allegation of error, however, is rooted in the Prince George’s County DNA laboratory's lack of a validated stochastic threshold. At the hearing, Dr. Word testified that the Prince George’s County DNA laboratory should not have used the Microcon filtration system after amplification without first conducting validation studies that addressed what the stochastic effects would be post-amplification. Dr. Word, however, did not challenge the underlying methodology:
      [DR. WORD]: So the [pre-amplification] clean up step and that concentrating step ... give us enough DNA to proceed. And if I can jump ahead, because you’re going to ask it it's the same thing for the post-amplification, that's functioning exactly in the same way, it’s a clean-up step, it’s a concentration step to then have more product to evaluate. And those have nothing to do with generating stochastic effect[s], the Microcon process. The stochastic effects come because we have too little DNA in the first place.
      Dr. Word testified that the underlying issue was the lack of a stochastic threshold, not the use of a post-amplification filtration method — a method that she acknowledges is appropriate. Our holding that the Prince George’s County DNA laboratoiy analyzed the steering wheel sample in a generally accepted manner even in the absence of a validated stochastic threshold applies to this argument as well, and, accordingly, we hold that use of the Microcon filtration system post-amplification is a generally accepted methodology.

        Second, Phillips argues that the use of the Combined Probability of Inclusion ("CPI”) statistical computation for the steering wheel sample is not a generally accepted method of determining the likelihood of inclusion in a complex, low copy number sample. Phillips' argument to this point is again derivative of his argument that without the stochastic threshold, there is no way to be certain that stochastic effects have not occurred. As we held above, the Prince George’s County DNA laboratory used an acceptable methodology to analyze the steering wheel sample. It follows then that the Prince George’s County DNA laboratoiy’s derivative conclusion — that the CPI program could be used- — -necessarily also survives a Frye-Reed challenge.


source: Caselaw Access Project

author: BERGER, J.

license: Public Domain

text:
    126 A.3d 753
    JAMES G. DAVIS CONSTRUCTION CORPORATION v. ERIE INSURANCE EXCHANGE.
    No. 802,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    Oct. 28, 2015.
    Reconsideration Denied Dec. 31, 2015.

      William H. White, Washington, D.C., & James D. O’Connor (Kirk O. Kolbo, Maslon, Edelman, Borman & Brand, LLP, Minneapolis, MN, Clifton M. Mount, Bode & Fierberg, LLP, Washington, D.C.), on the brief, for Appellant.
    Edward J. Brown, Ellicott City, MD, for Appellee.
    Panel: MEREDITH, BERGER, and LEAHY, JJ.
   BERGER, J.

This appeal arises out of an order of the Circuit Court for Montgomery County, entered on May 30, 2014, granting a motion for summary judgment filed by Erie Insurance Exchange (“Erie”). The circuit court further denied a motion for partial summary judgment filed by James G. Davis Construction Corporation (“Davis”). In granting Erie’s motion for summary judgment, the circuit court found that Erie did not have a duty to defend Davis in a tort suit filed in the Circuit Court for Prince George’s County, despite the fact that Davis was listed as an “additional insured” on an insurance policy issued by Erie to Erie’s subcontractor, Tricon Construction, Inc. (“Tricon”).

On appeal, Davis presents one issue for our review, which we have rephrased as follows:

Whether the circuit court erred in granting Erie’s motion for summary judgment and denying Davis’s motion for partial summary judgment.

For the reasons that follow, we reverse the judgment entered by the Circuit Court for Montgomery County and remand this case to the Circuit Court for Montgomery County for additional proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

I. Subcontract Agreement and Indemnification

In 2009, Davis served as the general contractor for a home construction project in Washington, D.C. (the “Project”). On January 6, 2009, Davis subcontracted Tricon to provide drywall, insulation, and fireplace services on the Project. The terms of the subcontract agreement between Davis and Tricon (the “Subcontract Agreement”), as amended on January 22, 2009, provided that:

To the fullest extent permitted by applicable state law [Tricon] shall indemnify, save harmless [Davis] ... from any and all claims, and liabilities for property and personal injury, including death, arising out of or resulting from or in connection with any negligent act or omission of [Tricon], its sub-subcontractors, vendors or anyone else for whom [Tricon] is responsible in the execution of the work, whether or not caused in part by the active or passive negligence or other fault of a party indemnified hereunder.

The Subcontract Agreement further provided that this indemnity “shall be insured from an acceptable insurance carrier with minimum A.M. Best rating of A, naming [Davis] as an additional insured by ISO form CG 2010, 11/89 edition endorsement or equivalent....” Pursuant to the Subcontract Agreement, Tricon was to indemnify Davis for up to $1,000,000 per occurrence and up to $2,000,000 in the aggregate for all work performed on the Project.

Upon execution of the Subcontract Agreement, Tricon presented Davis with a certificate of liability insurance as proof that it had procured insurance coverage for Davis as required by the Subcontract Agreement. Attached to the certificate of liability insurance was an additional insured endorsement (the “Certificate Additional Insured Endorsement”). Read together, these documents provided that Tricon was issued a commercial general liability policy by Erie (the “Policy”) and that Davis was named as an additional insured on the Policy. The Certificate Additional Insured Endorsement provided the following:

A. Section II — Who is an insured is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of [Tricon’s] ongoing operations performed for that insured.
B. With respect to the insurance afforded to these additional insureds, the following exclusion is added:
2. Exclusions
This insurance does not apply to “bodily injury” or “property damage” occurring after:
(1) All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the site of the covered operations has been completed; or
(2) That portion of “[Tricon’s] work” out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.

The Certifícate Additional Insured Endorsement also included a schedule, listing Davis an additional insured under the Policy.

The Policy actually issued to Tricon, however, included an additional insured endorsement (the “Policy Additional Insured Endorsement”) with slightly different terms from those in the Certifícate Additional Insured Endorsement. The Policy Additional Insured Endorsement provided as follows:

A. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for “bodily injury, ” “property damage” or “personal and advertising injury” caused, in whole or in part, by:
1. [Tricon’s] acts or omissions; or
2. The acts or omissions of those acting on [Tricon’s] behalf;
in the performance of [Tricon’s] ongoing operations for the additional insured(s) at the location(s) designated above.
B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to “bodily injury” or “property damage” occurring after:
1. All work, including materials, parts or equipment furnished in connection with such work on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or
2. That portion of “[Tricon’s] work” out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.

(emphasis added). The Policy Additional Insured Endorsement further referred to a set of declarations within the Policy. One such declaration, effective January 22, 2009, indicated that Davis was added onto the Policy as an additional insured.

II. Tort Litigation

As part of its work on the Project, Tricon erected a scaffold, which it owned, at the site of the Project’s construction. Another of Davis’s subcontractors, American Mechanical Services, subcontracted Frost Fire Insulation (“Frost Fire”) to perform air conditioning and insulation work on the Project. On September 24, 2009, two employees of Frost Fire were using Tricon’s scaffold to complete their work on the Project when the scaffold collapsed, injuring the two Frost Fire employees. The injured Frost Fire employees alleged that they were authorized to use Tricon’s scaffold and were assured by Davis that the scaffolding was safe and secure.

The two injured Frost Fire employees filed suit against Tricon and Davis in the Circuit Court for Prince George’s County (the “Tort Litigation”). The Frost Fire employees alleged one count of negligence against Tricon and one count of negligence against Davis. After being served with the Frost Fire employees’ complaint, Daws notified Erie of the Tort Litigation and tendered its defense to Erie. Erie, however, declined to assume Davis’s defense. Erie claimed that the Policy did not cover Davis, as an additional insured, for Davis’s own negligent acts.

III. Breach of Contract Litigation

On June 5, 2013, Davis filed a complaint in the Circuit Court for Montgomery County alleging that Erie breached its contract with Davis by failing to honor its duty to defend and indemnify Davis in the Tort Litigation. Davis claimed that the terms of the Policy required Erie to defend Davis in the underlying litigation. Furthermore, Davis requested a declaratory judgment from the circuit court that would declare that Davis is entitled to a defense from Erie in the Tort Litigation; that Davis is entitled to indemnity from Erie with respect to all costs, fees, expenses, settlements and/or judgments paid for or incurred by Davis in the Tort Litigation; that Davis is entitled to reimbursement from Erie for all attorneys’ fees Davis incurred defending against the Tort Litigation; and that Davis is entitled to reimbursement from Erie for all attorneys’ fees Davis incurred in its lawsuit against Erie.

On February 10, 2014, Davis filed a motion for partial summary judgment in which it alleged that Erie had a duty to defend Davis in the Tort Litigation. Davis asserted that it was added to the Policy as an additional insured and that the claims asserted against it in the Tort Litigation were covered by the Policy. Davis, therefore, claimed that Erie’s duty to defend Davis was triggered by the complaint in the Tort Litigation. On February 25, 2014, Erie filed an opposition to Davis’s motion for partial summary judgment that also functioned as a cross-motion for summary judgment.

The circuit court heard the parties’ cross-motions for summary judgment on April 23, 2014 and issued an oral opinion and order on the motions on May 27, 2014. The court denied Davis’s motion for partial summary judgment and granted summary judgment in favor of Erie. In its oral opinion and order, the court, finding no genuine dispute of material fact, concluded that Davis was covered by the Policy as an additional insured. The court further found that Erie did not have a duty to defend Davis in the Tort Litigation because the Policy did not cover Davis for Davis’s own negligence, and the complaint in the Tort Litigation “contained] a separate allegation of negligence against Davis for Davis’[s] own acts or omissions.” Ultimately, the circuit court concluded that the Policy only covered Davis for claims of vicarious liability “arising out of Tricon’s performance.” Additionally, the court found that Davis did not qualify for coverage under the Policy as an “indemnitee.”

This timely appeal followed.

DISCUSSION

I. Standard of Review

The entry of summary judgment is governed by Maryland Rule 2-501, which provides:

The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.

Md. Rule 2—501(f).

The Court of Appeals has explained the standard of review of a trial court’s grant of a motion for summary judgment as follows:

On review of an order granting summary judgment, our analysis “begins with the determination [of] whether a genuine dispute of material fact exists; only in the absence of such a dispute will we review questions of law.” D’Aoust v. Diamond, 424 Md. 549, 574, 36 A.3d 941, 955 (2012) (quoting Appiah v. Hall, 416 Md. 533, 546, 7 A.3d 536, 544 (2010)); O’Connor v. Balt. Cnty., 382 Md. 102, 110, 854 A.2d 1191, 1196 (2004). If no genuine dispute of material fact exists, this Court determines “whether the Circuit Court correctly entered summary judgment as a matter of law.” Anderson v. Council of Unit Owners of the Gables on Tuckerman Condo., 404 Md. 560, 571, 948 A.2d 11, 18 (2008) (citations omitted). Thus, “[t]he standard of review of a trial court’s grant of a motion for summary judgment on the law is de novo, that is, whether the trial court’s legal conclusions were legally correct.” D’Aoust, 424 Md. at 574, 36 A.3d at 955.

Koste v. Town of Oxford, 431 Md. 14, 24-25, 63 A.3d 582, 589 (2013).

We are “obliged to conduct an independent review of the record to determine if there is a dispute of material fact.” Injured Workers’ Ins. Fund v. Orient Express Delivery Serv., Inc., 190 Md.App. 438, 450-51, 988 A.2d 1120, 1127 (2010) (citing Wells Fargo Home Mortgage, Inc. v. Neal, 398 Md. 705, 714, 922 A.2d 538 (2007)). “A material fact is one that will alter the outcome of the case, depending upon how the fact-finder resolves the dispute.” Id. at 451, 988 A.2d 1120 (citing Berringer v. Steele, 133 Md.App. 442, 470-71, 758 A.2d 574 (2000) (citations omitted)). “Mere general allegations of conclusory assertions will not suffice.” Id. (citing Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 738, 625 A.2d 1005 (1993)).

II. Erie’s Duty to Defend Davis as an “Additional Insured”

The issues presented in the instant case hinge, in some part, on this Court’s interpretation of the terms of the Policy issued by Erie to Tricon, to which Davis was added as an additional insured. When it comes to the interpretation of the terms of an insurance contract, “Maryland does not follow the rule, adopted in many jurisdictions, that an insurance policy is to be construed most strongly against the insurer.” Bausch & Lomb Inc. v. Utica Mut. Ins. Co., 330 Md. 758, 779, 625 A.2d 1021 (1993) (citing Cheney v. Bell National Life, 315 Md. 761, 766, 556 A.2d 1135 (1989)). Rather, “the terms of an insurance contract are to be interpreted utilizing well-established principles that guide the interpretation of contracts generally.” Kendall v. Nationwide Ins. Co., 348 Md. 157, 166, 702 A.2d 767 (1997) (citing Pac. Indem. Co. v. Interstate Fire & Cas. Co., 302 Md. 383, 388, 488 A.2d 486 (1985)). “Where terms are ambiguous, extrinsic and parol evidence may be considered to ascertain the intentions of the parties.” Sullins v. Allstate Ins. Co., 340 Md. 503, 508, 667 A.2d 617 (1995) (citing Cheney, supra, 315 Md. at 766-67, 556 A.2d 1135). “If no extrinsic or parol evidence is introduced, or if the ambiguity remains after consideration of extrinsic or parol evidence that is introduced, it will be construed against the insurer as the drafter of the instrument.” Cheney, supra, 315 Md. at 767, 556 A.2d 1135 (citing Pac. Indem., supra, 302 Md. at 388-89, 488 A.2d 486).

Under Maryland law, when determining whether an insurer is under a duty to defend its insured, a court must answer two questions: “(1) what is the coverage and what are the defenses under the terms and requirements of the insurance policy? [and] (2) do the allegations in the tort action potentially bring the tort claim within the policy’s coverage?” Aetna Cas. & Sur. Co. v. Cochran, 337 Md. 98, 103-04, 651 A.2d 859 (1995) (quoting St. Paul Fire & Marine Ins. Co. v. Pryseski, 292 Md. 187, 193, 438 A.2d 282 (1981)). “The first question focuses upon the language and requirements of the policy, and the second question focuses on the allegations of the tort suit.” Capital City Real Estate, LLC v. Certain Underwriters at Lloyd’s London, Subscribing to Policy Number: ARTE018240, 788 F.3d 375, 379 (4th Cir.2015) (quoting St. Paul Fire & Marine Ins. Co. v. Pryseski, supra, 292 Md. at 193, 438 A.2d 282).

Critically, “[e]ven if a tort plaintiff does not allege facts which clearly bring the claim within or without the policy coverage, the insurer still must defend if there is a potentiality that the claim could be covered by the policy.” Brohawn v. Transamerica Ins. Co., 276 Md. 396, 408, 347 A.2d 842 (1975) (citing U.S. Fid. & Guar. Co. v. Nat’l Paving & Contracting Co., 228 Md. 40, 54, 178 A.2d 872 (1962)). Furthermore, “[i]f there is any doubt as to whether there is a duty to defend, it is resolved in favor of the insured.” Walk v. Hartford Cas. Ins. Co., 382 Md. 1, 16, 852 A.2d 98 (2004) (citing Aetna Cas., supra, 337 Md. at 107, 651 A.2d 859).

On appeal, and in its motion for partial summary judgment, Davis contends that the terms of the Policy required Erie to assume Davis’s defense in the Tort Litigation. In analyzing this claim, we turn our attention to the terms of the Policy and the scope of coverage it affords. First, we must resolve the discrepancy between the Certificate Additional Insured Endorsement and the Policy Additional Insured Endorsement to determine what the Policy actually provides regarding “additional insureds.”

A. Effect of Certificate of Insurance

The United States District Court for the District of Maryland examined a similar issue in the case of G.E. Tignall & Co. v. Reliance Nat. Ins. Co., 102 F.Supp.2d 300 (D.Md.2000). In Tignall, a general contractor agreed to have a subcontractor perform lead paint abatement work on a school renovation project. Id. at 301. The general contractor required the subcontractor to maintain liability insurance related to lead paint abatement at the school, so the subcontractor presented the general contractor with a certificate of insurance. Id. The certificate of insurance described a number of insurance policies procured for the subcontractor by an independent insurance broker. Id. The certificate identified the general contractor as “an additional insured for liability incurred because of the lead abatement work at the school.” Id. When a student at the school sued the general contractor for alleged lead poisoning during the renovation period, the subcontractor’s insurer refused to defend and indemnify the general contractor, claiming that its policy only required it to defend the general contractor “where [the subcontractor’s] own operations were alleged as the basis of liability.” Id. at 302.

The general contractor in Tignall alleged that its subcontractor’s insurer had a duty to defend the general contractor against the lead poisoning suit based on the certificate of insurance the subcontractor had presented to the general contractor. Id. at 302-03. The court in Tignall, however, found that the terms of the certificate of insurance were not binding on the subcontractor’s insurer because “[o]rdinarily, the presentation of a certificate alone does not create coverage or legal duties.” Id. at 304. The Tignall court highlighted the fact that the certificate was not prepared by the subcontractor’s insurer, but rather by an independent insurance broker, so its terms could not bind the insurer. Id. at 303.

Similarly, in the instant case, the certificate of liability insurance that Tricon presented to Davis upon execution of the Subcontract Agreement was not produced by Erie, but rather was produced by V W Brown Insurance Service, an independent insurance broker. The text of the certificate of liability insurance in the instant case further provides that “THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND ... DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.” In light of these facts, we hold that the terms of the Certificate Additional Insured Endorsement are not a part of the Policy and, therefore, are not binding on Erie.

Nevertheless, for the reasons that follow, we hold that Erie is bound to the terms of the Policy Additional Insured Endorsement, which constitute part of the Policy. Accordingly, the circuit court erred by exclusively analyzing the scope of coverage afforded by the Policy under the terms of the Certificate Additional Insured Endorsement.

B. Scope of Coverage Afforded to Davis by the Policy

Having determined which terms comprise the Policy, we now turn our attention to analyzing the scope of insurance coverage provided by those terms. The circuit court found that the Policy did not cover Davis for Davis’s own negligence, but rather for “the acts or omissions of the named insured— that is Tricon — or the acts or omissions of those acting on the named insured’s behalf during ongoing operations for the additional insured.” The circuit court, therefore, concluded that the terms of the Policy only covered Davis for claims of vicarious liability based on the actions of Tricon as Davis’s subcontractor.

In analyzing the scope of coverage afforded by the Policy, the circuit court explicitly relied on two cases: G.E. Tignall & Co., Inc. v. Reliance National Insurance Co., supra, and Baltimore Gas & Elec. Co. v. Commercial Union Ins. Co., 113 Md.App. 540, 546, 688 A.2d 496 (1997). Both Tignall and Baltimore Gas deal with factual situations similar to the instant case, in which a general contractor is added to the insurance policy of a subcontractor as an additional insured but the insurer refuses to defend the general contractor in a tort suit. See Tignall, supra, 102 F.Supp.2d at 301-02; and Baltimore Gas, supra, 113 Md.App. at 546-552, 688 A.2d 496. Nevertheless, Tignall and Baltimore Gas are not directly applicable to the instant case because the terms of the additional insured endorsements in both cases materially differ from the language of the applicable Policy Additional Insured Endorsement in the instant case.

The additional insured endorsements in Tignall and Baltimore Gas mirror the language of the Certificate Additional Insured Endorsement in the instant case in that they limit coverage for the additional insured to “liability arising out of’ Tricon’s work on the Project. As previously discussed, the Certificate Additional Insured Endorsement is not part of the Policy and is therefore not binding on Erie in the instant case. Accordingly, we must analyze the Policy’s scope of coverage using the terms of the Policy Additional Insured Endorsement, which limits coverage for the additional insured to “liability for ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ caused, in whole or in part, by” Tricon’s work on the Project.

Both the Certificate Additional Insured Endorsement and the Policy Additional Insured Endorsement are standard form endorsements published by the Insurance Services Office, Inc. (“ISO”), an industry-supported organization that develops standard insurance policies. 4 Philip L. Bruner & Patrick J. O’Connor, Jr., Bruner and O’Connor on Construction Law § 11:6 (2010). The Certificate Additional Insured Endorsement uses the terms of the ISO’s standard form additional insured endorsement from the year 2000. The Policy Additional Insured Endorsement uses the terms of the ISO’s standard form additional insured endorsement as revised in 2004.

Although Maryland courts have not had an opportunity to analyze an insurance policy utilizing the “caused, in whole or in part, by” language of the Policy Additional Insured Endorsement, the Fourth Circuit Court of Appeals recently analyzed language akin to the Policy Additional Insured Endorsement in the Policy issued to Tricon in this case. In Capital City Real Estate, LLC v. Certain Underwriters at Lloyd’s London, Subscribing to Policy Number: ARTE018240, supra, 788 F.3d at 379-380, the Endorsement was copyrighted by ISO and explicitly covered Capital City (a real estate development company) as an additional insured for a renovation project, “but only with respect to liability for ... ‘property damage’ ... caused in whole or in part by [a subcontractor’s] acts or omissions; or [t]he acts or omissions of those acting on [the subcontractor’s] behalf.” Id.

Recognizing that the “Maryland Court of Appeals has not construed the Endorsement language presented,” the Fourth Circuit expressly held that the language is quite clear that coverage is provided for the real estate development company, an additional insured, for “property damages ... caused in whole or in part by” the subcontractor. Id. Thus, the Fourth Circuit construed the similar Endorsement language at issue here to mean that an insurer has a duty to defend an additional insured “only if the underlying pleadings allege that” the named insured, “or someone acting on its behalf, proximately caused” the injury or damage. Id. (quoting Gilbane Bldg. Co. v. Admiral Ins. Co., 664 F.3d 589, 598 (5th Cir.2011)).

Notably, the “liability ... caused, in whole or in part, by” language used in the Policy Additional Insured Endorsement indicates that the coverage afforded to Davis, as an additional insured, cannot be limited exclusively to claims of vicarious liability for Tricon’s acts. In our view, it is unreasonable to interpret the term “liability” as used in the 2004 version of the ISO standard form additional insured endorsement as referring to “vicarious liability” because vicarious liability is an all or nothing proposition and thus a party could not be vicariously liable ‘in part’ for [the named insured’s] acts.

This Court has defined “vicarious liability” as “the attribution of a wrongdoer’s actions to an innocent third party by virtue of the relationship between the wrongdoer and the third party.” Rivera v. Prince George’s Cnty. Health Dep’t, 102 Md.App. 456, 475, 649 A.2d 1212 (1994). Indeed, because vicarious liability is used to impute liability to “an innocent third party,” such liability cannot be caused merely “in part.” The third party to whom liability is imputed would not be “innocent” unless the wrongdoer’s acts caused the liability “in whole.” We, therefore, hold that the word liability in the policy at issue relates to proximate causation and not vicarious liability.

This holding has been echoed in Pro Con, Inc. v. Interstate Fire & Cas. Co., 794 F.Supp.2d 242 (D.Me.2011). There, the United States District Court for the District of Maine “conclude[d] that [the defendant insurance company], by including the language ‘in whole or in part’ in its [additional insured endorsement], specifically intended coverage for additional insureds to extend to occurrences attributable in part to acts or omissions by both the named insured and the additional insured.” 794 F.Supp.2d at 256-57 (emphasis in original).

We, therefore, hold that under the Policy Additional Insured Endorsement in the instant case, Erie has the duty to defend Davis even if the allegations are not based solely on vicarious liability as long as Davis is alleged to be liable, in whole or in part, by the acts or omissions of Tricon. Accordingly, the circuit court erred in declaring that the terms of the Policy limited coverage of Davis, as an additional insured, to claims of vicarious liability based on Tricon’s actions.

C. Erie’s Duty to Defend Davis Was Triggered by the Tort Litigation

Now that we have determined the terms that comprise the Policy, and the scope of coverage provided by those terms, we must determine whether the allegations in the complaint in the Tort Litigation trigger Erie’s duty to defend Davis, as an additional insured, under Maryland law. “In order for an insurer to be obligated to defend an insured, the underlying tort suit need only allege action that is potentially covered by the policy, no matter how attenuated, frivolous, or illogical that allegation may be.” Sheets v. Brethren Mut. Ins. Co., 342 Md. 634, 643, 679 A.2d 540 (1996) (emphasis in original). The primary focus of this analysis is the allegations in the Tort Litigation complaint, as opposed to the specific claims asserted. Baltimore Gas, supra, 113 Md.App. at 559, 688 A.2d 496. “[W]here a potentiality of coverage is uncertain from the allegations of a complaint, any doubt must be resolved in favor of the insured.” Aetna Cas., supra, 337 Md. at 107, 651 A.2d 859.

The complaint in the Tort Litigation alleges one count of negligence against Tricon and one count of negligence against Davis. The complaint asserts that Tricon “owned and maintained” the scaffolding that collapsed and injured the Frost Fire employees. The complaint further claims that the injured Frost Fire employees “were authorized to use the scaffolding and were assured by Defendant Davis and its employees that the scaffolding was safe and secure.” The complaint maintains that both Tricon and Davis failed to exercise reasonable care “in erecting, positioning, and maintaining the scaffolding” that ultimately injured the Frost Fire employees. Furthermore, the complaint alleged that both Tricon and Davis acted as the “controlling employer at the construction site” and that they both “had general supervisory authority over the construction site including the authority to correct safety violations.”

As previously discussed, the terms of the Policy in the instant case provide coverage to Davis for any liability “caused, in whole or in part, by” Tricon’s work on the Project. A number of federal district courts, as well as the Fourth Circuit Court of Appeals, have interpreted this language as limiting coverage for the additional insured to liability proximately caused by acts of the named insured. Erie, therefore, has a duty to defend Davis against any liability that could potentially be proximately caused by Tricon’s acts.

The complaint in the Tort Litigation theorizes that the negligence of Tricon, the negligence of Davis, or the negligence of both Tricon and Davis contributed to the injury of the Frost Fire employees. By asserting virtually identical allegations against both Davis and Tricon for a single tortious injury, the Tort Litigation complaint suggests a lack of awareness regarding the true cause of the Frost Fire employees’ injuries. Indeed, the Tort Litigation complaint alleges that “as a proximate result of the negligence of [Tricon] and the resulting accident, [the Frost Fire employees] were caused to suffer significant personal injuries.” Similarly, the Tort Litigation complaint alleges “[t]hat as a proximate result of the negligence of Defendant Davis and the resulting accident, [the Frost Fire employees] were caused to suffer significant personal injuries.” Presumably, the claim of negligence asserted against Tricon is grounded on the fact that Tricon, as the owner of the scaffolding, was responsible for maintaining the scaffolding such that it would not collapse when used. Furthermore, the claim of negligence against Davis is likely based on the fact that Davis, as the general contractor, had a duty to ensure the safety of the entire Project construction site, including all construction equipment used.

The trial court erred in holding that the additional insured endorsements provided no coverage to Davis if the plaintiffs’ complaint in the Tort Litigation alleged any negligence on Davis’s part. Indeed, the endorsements contain no language excluding coverage for Davis’s alleged acts of negligence. Instead, they require only, in the case of one endorsement, that Davis’s alleged liability be caused in whole, or in part, by Tricon’s acts or omissions in the performance of Tricon’s ongoing operations for Davis at the Project, and in the case of the endorsement attached to the certificate of insurance, liability arising out of Tricon’s ongoing operations performed for Davis. As such, the trial court erred in concluding that those Policy conditions could not be met if the complaint contained any allegations that Davis was alleged to be negligent for any of its own acts or omissions, even if Tricon was also named as a defendant and alleged to be negligent in the performance of its work for Davis.

The trial court did not examine the complaint to determine whether Davis’s liability was alleged to be “caused in whole, or in part” by Tricon’s acts or omissions in the performance of Tricon’s ongoing operations for Davis at the Project, or whether Davis’s liability was alleged to arise out of Trieon’s ongoing operations performed for Davis. Had it conducted such an analysis, it would have concluded that Davis’s liability in the Tort Litigation is alleged to be “caused in whole, or in part,” by Tricon’s “acts or omissions ... in the performance” of its “ongoing operations” for Davis at the Project. Those same allegations compel the conclusion that Davis has been sued for “liability arising out of’ Tricon’s “ongoing operations performed for” Davis.

Plaintiffs’ complaint alleges that they were injured at the Project, where Davis “acted as the general contractor and controlling employer ... and had general supervisory authority over the construction site including the authority to correct safety violations.” The plaintiffs maintain that their injuries occurred when in the course of performing their duties on the Project they “were working on scaffolding owned and maintained by Defendant Tricon when the scaffolding collapsed.” In their separate count against Tricon, they recite various acts or omissions of Tricon with respect to its scaffolding work and responsibilities which they allege to be negligent breach of duties by Tricon to plaintiffs and the proximate cause of their injuries. Plaintiffs’ allegations against Davis are that, as general contractor, in the exercises of its supervisory authority, it should have “exercise[d] reasonable care in erecting, positioning, and maintaining scaffolding,” which the complaint proceeds to specify.

The allegations of the complaint demonstrate that the claim of liability against Davis falls within the terms of the additional insured endorsements of the Policy. They cannot be read to mean anything other than that Davis’s liability — its alleged negligence with respect to supervising safety relating to the scaffolding work — is claimed to be “caused in whole, or in part, by ... [Tricon’s] acts or omissions ... in the performance of’ Tricon’s scaffolding work for Davis at the Project. Indeed, the plaintiffs have sued Davis for liability “arising out of’ Tricon’s scaffolding work being “performed” by it for Davis.

In short, the allegations in the Tort Litigation contain claims against Davis covered by the Policy’s endorsements. Nevertheless, even if it were not clear from the allegations that Davis was being sued for “liability ... caused in whole, or in part,” by Tricon’s scaffolding work for Davis, or “arising out of’ Tricon’s scaffolding work, Erie would still have a duty to defend because the allegations recited above establish at least the “potentiality that the claim could be covered” by the Policy’s endorsements. Brohawn v. Transamerica Ins. Co., 276 Md. 396, 407, 347 A.2d 842 (1975) (citing United States Fid. & Guar. Co. v. Nat’l Paving & Contracting Co., 228 Md. 40, 54, 178 A.2d 872 (1962)). Accordingly, the circuit court erred in declaring that the Policy created no duty for Erie to defend Davis in the Tort Litigation.

JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED. CASE REMANDED TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE APPELLEE.

      . While we predominately refer to Davis as an "additional insured” under the Policy, Davis also qualifies as an "insured” as defined by the Policy. The Policy provides that "[t]he word 'insured’ means any person or organization qualifying as such under Section II — Who Is An Insured." The terms of the Policy Additional Insured Endorsement amend Section II of the Policy to include Davis as an “insured,” subject to certain restrictions in coverage that do not apply to other "insureds.” Davis’s status as an "additional insured,” therefore, makes it part of a subset within the larger categoiy of "insureds.”

      . In its May 27, 2014 oral opinion and order, the circuit court explicitly acknowledged that the parties disputed whether the Certificate Additional Insured Endorsement could be considered part of the Policy that Erie actually issued to Tricon. Nevertheless, the court analyzed the scope of coverage of the Policy by exclusively referring to the terms of the Certificate Additional Insured Endorsement, without ever mentioning the differing terms of the Policy Additional Insured Endorsement.

      . The Policy is structured such that Erie has a duty to defend and indemnify its "insured.” Before the circuit court, the parties did not dispute that Davis was added to the Policy as an "additional insured.” The terms of the Policy Additional Insured Endorsement amend the Policy such that the parties named as "additional insureds,” like Davis, are encompassed by the term "insured” as used throughout the Policy. The Policy Additional Insured Endorsement, however, does place some restrictions on "additional insureds” to which other "insureds” are not subject.
      Furthermore, if Erie defends an insured "against a ‘suit’ and an indemnitee of the insured is also named as a party to the ‘suit’ [then Erie] will defend that indemnitee” provided a list of conditions are met. Erie, therefore, may have a duty, by virtue of the Policy, to defend and indemnify a party who does not qualify as an "insured” under the terms of the Policy.
      Critically, Davis did not argue before the circuit court that it was basing its request for Erie to defend it by virtue of its status as an indemnitee. Nevertheless, the circuit court found, sua sponte, that Erie was not obligated to defend or indemnify Davis as an "indemnitee of the insured.” Neither party challenges the validity of this finding on appeal. In any event, this finding is rendered moot by our holding that Erie is obliged to defend Davis by virtue of Davis' status as an "additional insured.” See Part 11(C), infra. Accordingly, it would be premature for us to opine in this case whether Davis qualifies as an indemni-tee or what rights may flow as a result of that status. We, therefore, confine our analysis on appeal to the question presented by Davis relating to its status as an “additional insured.”

      . Erie argued, before the circuit court and this Court, that it is improper to use a "potentiality analysis" to determine whether Erie had a duty to defend Davis in the instant case. Rather, Erie claims that the duty to defend issue in the instant case should be resolved pursuant to the holding of the Court of Appeals in N. Assur. Co. of Am. v. EDP Floors, Inc., 311 Md. 217, 226, 533 A.2d 682 (1987). In that case, the Court of Appeals held that "when ... the question of coverage or exclusion under the language of the insurance policy is separate and distinct from the issues involved in the tort suit, the potentiality rule’ normally has no application.” N. Assur. Co. of Am. v. EDP Floors, Inc., 311 Md. 217, 226, 533 A.2d 682 (1987) (citing St. Paul Fire & Marine Ins. Co. v. Pryseski, 292 Md. 187, 194, 438 A.2d 282 (1981)).
      The insured in EDP Floors was sued because its employee had injured an individual in the course of unloading floor tiles from a truck. Unlike in the instant case, the insurance policy that was at the center of EDP Floors contained an explicit, specific coverage exclusion for injuries resulting from the "loading or unloading of ... any automobile.” Accordingly, "the potentiality analysis” was inappropriate in EDP Floors because the resolution of the suit against the insured was not going to affect whether the policy covered the alleged injury. In the Tort Litigation, however, essentially identical allegations are lodged against both Tricon and Davis which do not constitute a clear exclusion to coverage under the Policy. The "potentiality analysis” is, therefore, appropriate in the instant case because the resolution will determine which party was the proximate cause of the Frost Fire employees’ injuries, which in turn will determine whether or not Davis is covered by the Policy.