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Law Digest — Md. Court of Special Appeals — Aug. 19, 2021

Maryland Court of Special Appeals

Commercial Law; Credit Grantor Closed End Credit Provisions: Although a cause of action under the Credit Grantor Closed End Credit Provisions of the Commercial Law Article may accrue after a violation has occurred where the borrower can show that she has suffered compensable damage subject to the credit grantor’s right to cure, or where the borrower requests appropriate declaratory or injunctive relief, the circuit court properly dismissed for failure to state a claim the plaintiff’s claim because the plaintiff did not seek declaratory or injunctive relief, but rather sought only actual damages and statutory penalties and failed to include in her complaint any factual allegations that the credit grantor collected more than the principal loan amount or demanded an amount not collectible under her credit contract. Bolling v. Bay Country Consumer Finance, Inc., No. 699, Sept. Term, 2019.

Evidence; Impeachment: At the defendant’s trial for murder, although the trial court erred in failing to take judicial notice of a deceased hearsay declarant’s  per se impeachable prior conviction, any error in failing to admit this unavailable hearsay declarant’s prior drug-related conviction to impeach his prior recorded interview with police was harmless beyond a reasonable doubt where the jury had ample reason to question the declarant’s credibility in that the jury also heard recorded testimony from the declarant in which he admitted to being high on cocaine during the interview and professed his lack of credibility and motive to lie to police. Colkley v. State, No. 833, Sept. Term, 2019.

Torts; Wrongful death: The beneficiaries of a decedent were not entitled to recover under Maryland’s wrongful death statute where they showed only that the defendant’s negligence shortened the decedent’s life expectancy and did not prove that the defendant’s negligence caused the decedent’s death; but under Maryland’s survival statute, the personal representative of the decedent’s estate could recover for conscious pain and suffering, medical expenses and loss of wages caused by the defendant’s negligence even if the personal representative could not prove that the defendant’s negligence caused the decedent’s death. Wadsworth v. Sharma, M.D., No. 1703, Sept. Term, 2020.

Commercial Law

Credit Grantor Closed End Credit Provisions

BOTTOM LINE: Although a cause of action under the Credit Grantor Closed End Credit Provisions of the Commercial Law Article may accrue after a violation has occurred where the borrower can show that she has suffered compensable damage subject to the credit grantor’s right to cure, or where the borrower requests appropriate declaratory or injunctive relief, the circuit court properly dismissed for failure to state a claim the plaintiff’s claim because the plaintiff did not seek declaratory or injunctive relief, but rather sought only actual damages and statutory penalties and failed to include in her complaint any factual allegations that the credit grantor collected more than the principal loan amount or demanded an amount not collectible under her credit contract.

CASE: Bolling v. Bay Country Consumer Finance, Inc., No. 699, Sept. Term, 2019 (filed July 1, 2021) (Judges Meredith, LEAHY & Shaw Geter).

FACTS: On or about December 4, 2014, Nina Bolling entered into a loan agreement with Bay Country Consumer Finance, Inc., which elected the Credit Grantor Closed End Credit Provisions (“CLEC”), Maryland Code (1975, 2013 Repl. Vol., 2019 Supp.), Commercial Law Article (“CL”), §§12-1001-12-1029, as the governing law. Bolling obtained financing primarily for personal, family and household purposes. In the credit contract, Bay Country took a security interest in Bolling’s tangible personal property in the credit contract.

Throughout the life of the credit contract, Bolling made numerous payments to Bay Country, and Bay Country applied her payments toward interest, costs, fees and principal. On or around January 12, 2017, Bay Country repossessed Bolling’s tangible personal property in Baltimore City, Maryland.

On June 13, 2018, Bolling filed a complaint against Bay Country in the circuit court, alleging that Bay Country “specifically refused to provide Bolling with the requested written statement” in violation of CL §12-1025. Bolling alleged that Bay Country’s refusal to provide the written statement with knowledge of the requested written statement subjected Bay Country to treble damages. The complaint requested that the circuit court order that Bay Country pay to Bolling the statutory penalties imposed by CL §12-1018(a)(2) and (b), and that the court award Bolling pre-judgment and post-judgment interest and any other appropriate relief.

Bay Country moved to dismiss or, in the alternative, for summary judgment, on the grounds that venue was improper in Baltimore City and that the court lacked subject matter jurisdiction because the complaint did not specifically allege damages and did not provide a calculation of damages. Bolling then filed her “First Amended Complaint” on July 30, 2018. Besides providing additional allegations relating to venue, the amended complaint also averred that, after the date of the repossession, “Bay Country demanded money from Bolling in an amount not collectible under her credit contract.” The amended complaint added a cause of action for a violation of the Maryland Consumer Debt Collection Act (“MCDCA”), Maryland Code (1975, 2013 Repl. Vol., 2019 Supp.), Commercial Law Article, §§14-201-14-204, and, in a footnote in the prayer for relief, stated that Bolling’s claim totaled $35,000. Otherwise, the amended complaint was substantively identical to the initial complaint. Bolling did not allege in her amended complaint that Bay Country collected more than the principal loan amount.

Bay Country filed a motion to dismiss Bolling’s first amended complaint or, in the alternative, for summary judgment. At a hearing on the motion, the circuit court determined that venue was proper in the circuit court. Subsequently, the circuit court entered an order dismissing for failure to state a claim Count I, Bolling’s CLEC claim, finding. The court denied Bay Country’s motion to dismiss Count II, relating to the MCDCA. On May 24, 2019, Bolling voluntarily dismissed Count II of her complaint with prejudice, which disposed of the final count.

Bolling appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Bolling argued that the circuit court erred in granting the motion to dismiss Count I for failure to state a claim under CL §12-1018(a)(2). She asserted that the “unambiguous language” of CLEC §12-1018(a)(2) supported her interpretation that a consumer borrower is entitled to maintain a cause of action for the statutory penalties prescribed] by CLEC §12-1018(a)(2) for a violation of CLEC prior to a credit grantor’s collecting more than the principal loan amount. Therefore, Bolling contended, she was entitled to seek redress immediately upon a violation of the CLEC, before Bay Country collected more than the principal loan amount.

Bolling alleged two potential violations of the CLEC. First, she alleged, without further factual detail or support, that after the date of the repossession, Bay Country demanded money from Bolling in an amount not collectible under her credit contract. Second, she averred a violation of CL §12-1025 for Bay Country’s refusal to provide her with the requested written statement after Bay Country repossessed her personal property.

Section §12-1025(a) of the CLEC provides that a credit grantor who receives scheduled monthly periodic payments on more than five loans secured by any interest in residential real property or tangible personal property shall furnish to the consumer borrower a written statement informing the consumer borrower of the amount of: (1) if the interest and charges on the loan were precomputed: (i) payments credited to reducing the outstanding unpaid balance of the loan, either in terms of a total dollar figure or individually itemized; and (ii) the remaining outstanding unpaid balance of the loan; or (2) if the interest and charges on the loan were not precomputed: (i) payments credited to reducing the outstanding unpaid principal balance of the loan, either in terms of a total dollar figure or individually itemized; (ii) payments credited to interest and fees, either in terms of a total dollar figure or individually itemized; and (iii) the remaining outstanding unpaid principal balance of the loan. Further, in the case of loans secured by “tangible personal property,” §12-1025(c) requires that a written statement be furnished to the consumer borrower “within a reasonable time after receipt of a written request of a consumer borrower provided the request is made at a reasonable time or interval since the furnishing of the last written statement.” CL §12-1025(c).

Section 12-1018 of the CLEC addresses the civil penalties for a violation of CLEC(a)(1). Under CL §12-1018(a)(2), except for a bona fide error of computation, if a credit grantor violates any provision of this subtitle, the credit grantor may collect only the principal amount of the loan and may not collect any interest, costs, fees, or other charges with respect to the loan. This penalty does not apply where a credit grantor unintentionally and in good faith fails to comply with these provisions and corrects the error or violation and makes the borrower whole for all losses, including reasonable attorney’s fees and interest, where appropriate, within 10 days after the credit grantor receives notice of the error or violation. CL §12-1018(a)(3). In addition, a credit grantor who knowingly violates any provision of this subtitle shall forfeit to the borrower three times the amount of interest, fees, and charges collected in excess of that authorized by this subtitle. CL §12-1018(b).

Based on the plain meaning of CL §12-1018(a)(2), the CLEC does not provide for any fixed statutory damages beyond the plaintiff’s actual loss, and the penalty prescribed under CL §12-1018(a)(2) confines the credit grantor to collection of the principal amount of the loan, thereby forfeiting any outstanding interest, charges, costs and fees, where there is an unknowing violation. Bediako v. American Honda Fin. Corp., 537 F. App’x 183, 187 (4th Cir. 2013). However, under the proper interpretation of the CLEC, a consumer borrower may have standing to bring a claim for damages and for declaratory and injunctive relief, immediately after the CLEC violation. Len Stoler, Inc. v. Wisner, 223 Md. App. 218, 238 (2015). CL §12-1018(a)(2) is not a bar to relief for a violation of CLEC until after the borrower pays off the principal amount of the loan; but rather, limits the amount of damages that a credit lender has to pay (assuming the lender can prove it was not a knowing violation). Without the ability to obtain declaratory or injunctive relief under certain provisions of the CLEC, a borrower may not have the ability to confirm whether a credit grantor is complying with certain provisions of the CLEC.

A review of the legislative history revealed that CL §12-1018 was originally enacted to be “identical as to penalty” as CL §12-413 of the Secondary Mortgage Loan Law (“SMLL”). The Court of Special Appeals has consistently allowed a borrower under the SMLL to seek declaratory relief with respect to any payments made as well as with respect to any ongoing or future liability under the loans, and determined that a court must calculate the principal balance on the loan and frame a declaratory decree stating the amount of principal the lender is entitled to recover, regardless of whether the borrower has paid amounts in excess of the principal. The doctrine of in pari materia required that CL §12-1018 be interpreted in the same manner. Duckworth v. Bernstein, 55 Md. App. 710, 727 (1983).

In sum, under the plain meaning of the CLEC, taken as a whole, a cause of action may accrue after a violation has occurred where the borrower can show that she has suffered compensable damage under CLEC, subject to the credit grantor’s right to cure pursuant to CL §12-1018(a)(3) and 12-1020, or where the borrower requests appropriate declaratory or injunctive relief. Based on the remedial purpose of CL §12-1018(a)(2), a borrower may be entitled to the penalties provided in CL §12-1018 upon a violation of one or more of CLEC’s provisions. Thus, the circuit court erred in concluding that Bolling’s claim for relief under CL §12-1018(a)(2) failed because that statute limits the borrower’s relief under CLEC to payments made in excess of the principal amount of the loan.

However, missing from Bolling’s complaint and from her response to the motion to dismiss were any factual allegations that Bay Country collected more than the principal loan amount or that supported her claim that Bay Country demanded “an amount not collectible under her credit contract.” Bolling did not seek declaratory or injunctive relief but prayed only for “actual damages” and statutory penalties under CL §12-1018(a) and (b) and without identifying the damages sustained. In short, Bolling’s amended complaint failed to assert a compensable claim under CLEC or other appropriate relief.

Accordingly, the judgment of the trial court Count I of the amended complaint for failure to state a claim was affirmed.

COMMENTARY: CL §12-1018 was designed to provide “protections for consumer borrowers, as well as penalties for lenders who violated those provisions.” Patton v. Wells Fargo Fin. Md., Inc., 437 Md. 83, 105 (2014). A broad interpretation of this statutory provision better matches its purpose to provide protection for borrowers from violations of CLEC. Foreclosing declaratory or injunctive relief until the credit grantor has received the return of its principal would delay relief under CLEC. Based on the remedial purpose of CL §12-1018(a)(2), a borrower may be entitled to the penalties provided in CL §12-1018 upon a violation of one or more of CLEC’s provisions.

  

PRACTICE TIPS: A borrower may file an action for a violation of the CLEC in a court of competent jurisdiction or may file a written complaint with the Commissioner of Financial Regulation under CL §12-1016. If the borrower elects the administrative path, the borrower is precluded from raising or asserting against the credit grantor in any subsequent forum any claim, defense, setoff, recoupment, penalty for violation, or right of any kind based on the matters addressed in the complaint or the hearing.

Evidence

Impeachment

BOTTOM LINE: At the defendant’s trial for murder, although the trial court erred in failing to take judicial notice of a deceased hearsay declarant’s  per se impeachable prior conviction, any error in failing to admit this unavailable hearsay declarant’s prior drug-related conviction to impeach his prior recorded interview with police was harmless beyond a reasonable doubt where the jury had ample reason to question the declarant’s credibility in that the jury also heard recorded testimony from the declarant in which he admitted to being high on cocaine during the interview and professed his lack of credibility and motive to lie to police.

CASE: Colkley v. State, No. 833, Sept. Term, 2019 (filed July 2, 2021) (Judges Kehoe, Berger & REED).

FACTS: On May 28, 2003, a shooting occurred on the 1700 block of Port Street in Baltimore. During the incident, four individuals were shot, one of whom was fatally wounded. In 2003, the State of Maryland indicted Clayton Colkley for his alleged involvement in the incident. The charges against Colkley included attempted first-degree murder of William Courts, conspiracy to murder William Courts, and first-degree murder of James Bowens.

Colkley was tried several times int the circuit court. Colkley’s first and second trial each resulted in convictions, but those convictions were subsequently reversed and remanded for a new trial. Colkley’s third and fourth trials resulted in mistrials.

At Colkley’s fifth trial, the State again presented its theory of the case. Under the State’s theory, Colkley and three other men drove to the 1700 block of Port Street for the purpose of killing William Courts at the behest of a large-scale drug supplier, Eric Horsey. The State asserted that Horsey had a motive to kill Courts because, according to Horsey, Courts and/or his brother, David Courts, had killed Horsey’s friend and shot Horsey’s brother. The State alleged that Horsey had placed a bounty on William Courts, which Colkley sought to collect by shooting Courts. Colkley’s defense argued at trial that Colkley was not involved in the shooting, and that the State’s witnesses were falsely accusing him for personal gain.

The State’s primary civilian witnesses at trial were Eric Horsey, Qonta Waddell (deceased), Jermaine Lee, and Edwin Boyd (deceased). Waddell’s testimony came in the form of a recorded interview with police on July 3, 2003, and from his testimony at Colkley’s first trial in 2005. In his recorded interview with police in 2003, Waddell told police that at the time of the incident he was on the 1700 block of Port Street with William Courts and James Bowens when a car pulled up. Waddell stated that he saw four armed men in the car, one of whom was Colkley. According to Waddell, Colkley exited the car and shot Bowens, and then shot William Courts. During the interview, Waddell viewed two separate picture arrays in which he independently identified Colkley and Edwin Boyd.

Two years after his interview with police, Waddell was called to testify in Colkley’s first trial in 2005. At trial, Waddell testified that he was not present for the shooting on May 28, 2003. Further, Waddell claimed that he was high on cocaine when he was arrested in July of 2003 and interviewed by the detectives, and he asserted that he had no memory of the 2003 interview. Faced with Waddell’s professed lack of memory, the court in Colkley’s first trial allowed the State to play his recorded interview from July 3, 2003.

Three months after his 2005 testimony, Waddell pled guilty to possession of a controlled dangerous substance with intent to distribute. Following Colkley’s first trial, Waddell died. Thus, over objection, the video of Waddell’s testimony in Colkley’s first trial – including his recorded interview from 2003 – was admitted at Colkley’s fifth trial. At the fifth trial, Colkley sought to impeach Waddell’s 2005 testimony with evidence of his subsequent conviction. Because Waddell was deceased and his subsequent conviction could not be raised through cross examination, Colkley asked the circuit court to take judicial notice of Waddell’s subsequent conviction. The circuit court denied Colkley’s request, and subsequently denied Colkley’s motion for reconsideration on the same issue. At the conclusion of the fifth trial, the jury found Colkley guilty of attempted first-degree murder of William Courts, conspiracy to murder William Courts, and unlawfully carrying a handgun.

Colkley appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Colkley first contended that the trial court erred by refusing to take judicial notice of Waddell’s prior conviction, thereby depriving Colkley of the opportunity to impeach Waddell’s hearsay declarations. Colkley argued that judicial notice of Waddell’s prior conviction was necessary because Waddell’s statements were hearsay and Waddell was not subject to cross-examination. Thus, Colkley asserted, judicial notice of Waddell’s prior conviction was the only available method to impeach Waddell’s credibility because it was the only way to have Waddell’s prior conviction admitted into evidence.

Under Maryland Rule 5-806(a), when a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness. It was undisputed that Waddell’s statement was hearsay is not in dispute. As such, Colkley was permitted to attack Waddell’s credibility as though Waddell were present for cross-examination. Under Maryland Rule 5-609, which provides the rule for admissibility of a witness’s prior convictions, for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness’s credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party.

In this case, it was undisputed that Waddell’s prior conviction was a per se impeachable offense. Further, it appeared that the trial court agreed with the State’s incorrect assertion that the evidence was not admissible. Moreover, Colkley had not raised the issue in any prior motion for the court’s consideration. Accordingly, the trial court ostensibly failed to engage in the appropriate balancing test to determine whether the prejudice of admitting the conviction outweighed the probative value. In failing to engage in the appropriate balancing test for admission of the impeachable conviction, the trial court abused its discretion. See Beales v. State, 329 Md. 263, 270 (1993).

However, prior cases have held that non-admission of impeachment evidence is less of a concern when a jury already has sufficient additional grounds to question a witness’s credibility. See U.S. v. Nelson, 39 F.3d 705, 708 (7th Cir. 1994). In this case, the jury had ample reason to question Waddell’s credibility. The jury viewed a recording of Waddell’s prior testimony, in which Waddell claimed that he was high on cocaine when he was arrested in July of 2003 and interviewed by the detectives. Waddell later recanted that same testimony. Further, Waddell asserted that he had no memory of the interview and that it was not uncommon for him to periodically lose his memory. Finally, Waddell stated that when he was a regular drug user, he would have done anything to get out of jail so he could continue using.

It was highly unlikely that Waddell’s prior drug related conviction would sway any juror who, after hearing Waddell’s own statements of his rampant drug use, lack of credibility, lack of reliability, and motive to lie, found Waddell’s testimony credible. Therefore, any error in failing to admit Waddell’s prior impeachable conviction was harmless beyond a reasonable doubt. Colkley’s additional arguments were likewise without merit.

The judgment of the circuit court was accordingly affirmed.

COMMENTARY: Colkley further contended that the trial court abused its discretion by allowing witnesses to testify to their knowledge of Colkley’s involvement in two additional murders. Specifically, Colkley objected to testimony from Eric Horsey, which alleged Colkley’s involvement in the murders of Edwin Boyd and David Courts; and testimony from Detectives Massey and Snead, which according to Colkley, corroborated Horsey’s testimony relating to Colkley’s involvement in the murders of Edwin Boyd8 and David Courts. Colkley argued that the trial court erred by failing to apply – on the record – the three-step analysis for admission of other crimes evidence. Second, Colkley argued that, assuming arguendo that the trial court did apply the three-step analysis sub silentio, the trial court nevertheless erred in admitting the evidence, arguing that there was not “clear and convincing evidence that Colkley was involved in these other crimes,” and that the evidence implicating Colkley’s involvement in the two murders was “substantially more prejudicial than probative.”

While evidence of a defendant’s past crimes or wrongful acts is generally inadmissible, such evidence may be admitted where that “evidence is substantially relevant to some contested issue in the case and is not offered to prove guilt based on propensity to commit crimes.” Vaise v. State, 246 Md. App. 188, 207 (2020), cert. denied, 471 Md. 86 (2020). Here, the rial court was keenly aware of Colkley’s prior acts implicated in Horsey’s testimony – i.e., murders of Edwin Boyd and David Courts. The trial court allowed admission of those portions of Horsey’s testimony which implicated Colkley in the additional murders after review of Colkley’s motion on that precise issue. There was nothing in the record to rebut the presumption that the trial court fully considered Colkley’s motion under the three-part test for admission of other crimes evidence. To support the presumption, the record indicated that the trial court fully considered Colkley’s motion under the three-part test for admission of other crimes evidence. As to the special relevance prong, the trial court’s closing instructions demonstrate that the court admitted the “additional murders” testimony because it had special relevance. As such, the trial court did not abuse its discretion by failing to articulate its specific reasoning for denying Colkley’s motion because the record demonstrates that the trial court fully considered the issues presented.

The trial court was legally correct in finding that the hearsay was admissible under a special relevance category. Namely, the testimony showed that Colkley’s attempt to murder William Courts was motivated by his desire to collect the bounty issued by Horsey against the Courts brothers. The trial court was in the best position to assess the credibility of witnesses and was persuaded that Colkley did in fact make those statements to Horsey about Boyd and David Courts. Finally, while the evidence tending to implicate Colkley’s involvement in the additional murders certainly carried prejudice, the evidence was highly probative of Colkley’s motive and consciousness of guilt for the crimes alleged. The trial judge did not abuse its discretion in allowing Horsey’s testimony, or the detectives’ corroborative testimony, which implicated Colkley’s involvement in the murders of Boyd and David Courts.

  

PRACTICE TIPS: What exceeds the limits of permissible comment or argument by counsel depends on the facts of each case. Thus, the propriety of prosecutorial argument must be decided contextually, on a case-by-case basis. Because a trial court is in the best position to evaluate the propriety of a closing argument as it relates to the evidence adduced in a case, the exercise of its broad discretion to regulate closing argument will not be overturned unless there is a clear abuse of discretion that likely injured a party.

Torts

Wrongful death

BOTTOM LINE: The beneficiaries of a decedent were not entitled to recover under Maryland’s wrongful death statute where they showed only that the defendant’s negligence shortened the decedent’s life expectancy and did not prove that the defendant’s negligence caused the decedent’s death; but under Maryland’s survival statute, the personal representative of the decedent’s estate could recover for conscious pain and suffering, medical expenses and loss of wages caused by the defendant’s negligence even if the personal representative could not prove that the defendant’s negligence caused the decedent’s death.

CASE: Wadsworth v. Sharma, M.D., No. 1703, Sept. Term, 2020 (filed July 1, 2021) (Judges Shaw Geter, Wells & SALMON (Senior Judge, Specially Assigned)).

FACTS: Stephanie Wadsworth died on June 10, 2017 survived by her husband, Scott Wadsworth, her father, Joseph Eline, Jr. and two children, Elizabeth Wadsworth and Matthew Wadsworth. On October 18, 2018, these relatives filed a complaint in the circuit court, alleging, in part, a wrongful death action in the circuit court against Poornima Sharma, M.D., University of Maryland Oncology Associates, P.A. (“UMOA”), and University of Maryland Community Medical Group, Inc. (“UMCMG”). The complaint alleged that at the time of the failure to diagnose, Dr. Sharma was employed by both UMCMG and UMOA. In the same complaint, Scott Wadsworth, as personal representative of the estate of Stephanie Wadsworth, filed a survivorship action against the same defendants.

The complaint alleged that in 2006, Wadsworth was diagnosed with stage IIIC left breast cancer, for which she underwent a mastectomy of the left breast, followed by radiation and chemotherapy. In 2006, 2007, and 2008, she underwent a series of follow-up PET/CT scans that were all negative for metastatic cancer. Those follow-up PET/CT scans were ordered by Dr. Sharma who was Wadsworth’s treating oncologist.

On April 1, 2013, Wadsworth underwent another follow-up PET/CT scan. The imaging demonstrated an abnormal finding that a radiologist, at that time, described as a “focus of increased uptake in the right proximal clavicle of undetermined significance.” According to the plaintiffs, the radiologist’s reading indicated new and potentially cancerous lesions not present on prior studies. According to the plaintiffs’ complaint, Dr. Sharma received, reviewed and was aware of the abnormal 2013 PET/CT scan but never reported the results to either Wadsworth or her other treating healthcare providers. Moreover, Dr. Sharma never ordered any follow-up tests. The plaintiffs alleged that these failures on Dr. Sharma’s part constituted actionable medical negligence even though Wadsworth, in April of 2013, already had stage IV metastatic breast cancer, which was not curable.

Between April 2013 and February 2016, Wadsworth had no pain or other noticeable problems related to her breast cancer, but in February 2016, she fell and injured her right shoulder. She went to a hospital on February 29, 2016 complaining of right shoulder pain. A diagnostic bone scan revealed an aggressive malignant bone lesion in her right clavicle. Shortly, thereafter, a tissue biopsy confirmed the diagnosis of metastatic cancer in her left breast. A March 2016 PET/CT scan revealed a worsening metastatic lesion in the middle right clavicle.

Wadsworth was then given aggressive and appropriate treatment and therapy (the same treatment and therapy she would have received if the lesion had been properly diagnosed in April 2013), but she died on June 10, 2017. According to one of the plaintiffs’ experts, had she been properly diagnosed in April 2013, she would have lived an additional 30 months, i.e., until December 2019 (approximately). One of plaintiffs’ oncology experts, Dr. Andrew Schneider, testified at deposition that Wadsworth’s pain and suffering would have been the same if she had lived an additional 30 months as the pain and suffering she actually experienced when she died 30 months prematurely. The plaintiffs claimed that the doctor’s negligence, although it did not cause Wadsworth’s death, shortened her life expectancy by 30 months.

The defendants filed a motion for summary judgment, which the circuit court granted. The circuit court denied the plaintiffs’ motion for reconsideration. The plaintiffs then appealed to the Court of Special Appeals.

At oral argument, the plaintiffs agreed that the appeal against UMCMG should be dismissed. The Court of Special Appeals dismissed the appeal against UMCMG and denied the defendants’ motion to dismiss the appeal as the remaining defendants. The Court of Special appeals affirmed the grant of summary judgment in favor of Dr. Sharma and the University of Maryland Oncology Associates, P.A., as to the wrongful death claim. The Court of Special Appeals reversed the judgment of the circuit court as to the survivorship claim and remanded for further proceedings.

LAW: Under §3-902(a) of the Maryland Wrongful Death Statute, codified at §§3-901 through 904, Maryland Code Annotated (1974, 2020 Repl. Vol.), of the Courts and Judicial Proceedings Article (“CJP”), “an action may be maintained against a person whose wrongful act causes the death of another.” (Emphasis added.) Under CJP §3-904, for a plaintiff to succeed in a wrongful death action, proof must be presented that the defendant’s wrongful act caused the death of another. Id. One of plaintiffs’ main contentions was that under the wrongful death statute, Wadsworth’s family could recover damages for “30 months or 2.5 years, of precious time” that, absent Dr. Sharma’s negligence, she would have lived. In other words, the plaintiffs claimed that under Maryland’s wrongful death statute, they had a cause of action even though the doctor’s negligence did not cause the death, so long as they could show that the defendants’ actions shortened the decedent’s life.

This argument was undercut by the holding of the Court of Appeals in Weimer v. Hetrick, 309 Md. 536, 554 (1987). In that case, the Court of Appeals stated, “In plain, unambiguous language, the statute provided a cause of action unknown to the common law for the benefit of described beneficiaries ‘against a person whose wrongful act caused the death of another.’” (Emphasis added.) The Court of Appeals held in Weimer that the plaintiff, in a wrongful death action, must prove that it was more likely than not (preponderance of evidence) that the doctor’s negligence caused the decedent’s death. Id. at 550-553.

In the words of the Weimer Court, determination by a fact-finder of the question of whether the defendant’s negligent conduct caused the decedent to lose less than a 50-percent chance of survival is impermissible in an action for wrongful death under the Maryland statute. Id. at 554. Under the loss of chance doctrine, a plaintiff in a wrongful death action may recover even though the decedent’s chance of survival at the time of the negligent act was less than 50 percent. See Cooper v. Hartman, 311 Md. 259, 263-66 (1987). Thus, the Court of Appeals in Weimer rejected the “loss of chance doctrine” when it held that the trial judge had correctly instructed the jury in a wrongful death action, that the plaintiff(s) must show, by a preponderance of evidence, that the conduct of the defendant “was a proximate cause of the death of the decedent.” Weiner, 309 Md. at 554.

Here, there was no question but that the doctor’s negligence did not cause the decedent’s death. The defendants, applying the Weimer test, correctly contended that the plaintiffs did not demonstrate that as of April 1, 2013, Wadsworth’s cancer was “still probably curable.” They emphasized that the plaintiffs’ own experts stated that as of April 2013, Wadsworth’s cancer was not curable; therefore, a wrongful death action by plaintiffs could not succeed. Under Maryland’s wrongful death statute, a relative of a decedent cannot recover damages unless the relative can prove that the defendant’s negligence caused the decedent’s death. As such, the motions judge was correct when he refused to allow the plaintiffs to recover solatium-type damages for the 30 months that they were deprived of Wadsworth’s company.

Accordingly, the circuit court’s grant of summary judgment in favor of Dr. Sharma and the University of Maryland Oncology Associates, P.A., as to the wrongful death claim was affirmed. The grant of summary judgment in favor of the defendants as to the survivorship claim was reversed, and the case was remanded for further proceedings on that claim. In addition, the appeal against UMCMG was dismissed.

COMMENTARY: In the survivorship claim, Wadsworth’s personal representative sought damages “suffered and sustained” by the decedent as a result of Dr. Sharma’s negligence. CJP §6-401(c) states, in part, that a right of action in equity survives the death of either party if the court can grant effective relief in spite of the death. A related statutory provision, Maryland Code (2017 Repl. Vol.), § 7-401(y)(1) of the Estates & Trusts Article (“ET”) provides, in relevant part, that in an action instituted by the personal representative against a tort-feasor for a wrong which resulted in the death of the decedent, the personal representative may recover the funeral expenses of the decedent up to the amount allowed under §8-106(c) of this article in addition to other damages recoverable in the action. (Emphasis added.)

Importantly, CJP §6-401 does not require that the plaintiff prove that death was caused by the defendants’ negligence. The personal representative, unless he or she makes a claim for funeral expenses, must only show that the decedent, if he or she had lived, would have had a cause of action. Those damages “currently include conscious pain and suffering as well as medical expenses, but exclude future loss of earnings, solatium damages, and damages which result to other persons from the death.” Fennell v. Southern Maryland Hosp. Ctr., Inc., 320 Md. 776, 792 (1990).

Here, the personal representative did claim lost wages in his complaint. Remand to the circuit court was necessary to afford the personal representative the chance to prove lost wages and to allow the personal representative the chance to show that Wadsworth incurred medical expenses and endured pain and suffering due to Dr. Sharma’s negligence. Accordingly, the grant of summary judgment as to the survivorship count was reversed, and the case was remanded to the circuit court as to that count only.

  

PRACTICE TIPS: In a wrongful death action, death is the only injury for which a plaintiff may sue. By contrast, in a survivorship action, personal representative may recover for the decedent’s fright and mental anguish if: 1) the defendant’s negligence shortened the decedent’s life expectancy; 2) the decedent knew that the defendant’s negligence shortened his or her life expectancy; and 3) based on that knowledge, the decedent experienced fear or mental anguish.