GM’s Dirty Laundry and Settlement Fund

GM's Dirty Laundry and Settlement Fund Information

 

The introductory paragraph to the Valukas report commissioned by the Board of Directors for General Motors is telling and chilling at the same time. Mr. Valukas is an attorney with a prominent national firm that was hired by the board once the ignition scandal hit the news. Presumably sophisticated engineers failed to understand what appears to be a rather simple concept for people in their shoes. When the ignition system failed the air bags would not deploy.

 

Apparently GM was aware of the problem from the switch's the beginning which was fall of 2002. GM was working on a solution between that time and 2006. GM became aware of vehicles stalling from customers, dealers and even its own employees yet no one took action despite multiple committees looking into the problem. A top executive is quoted as having called this the “GM Nod”.

 

The group charged with investigating product safety for GM completed its investigation within a month and concluded that there was not safety issue.

 

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Nationwide Toll Free 1-800-932-0979

 

The lack of diligence on the part of GM was compounded by the fact that the engineer who approved the ignition switch changed it for later model years but did not disclose it to anyone else. How that happens is beyond me. How did one person have the authority and all the information unto himself? Where were the checks and balances?

 

For a copy of the report with some redaction go to The Detroit News.

 

It is clear that GM failed to not only diagnose the problem despite years of being aware of it, but more importantly did not have proper oversight overs its employees.

 

All this leads to the hundreds of accidents with a significant number of fatalities and the potential for large settlements. Money, however, cannot replace a loved one. It is sad to think that a simple solution was available, but that GM's incompetence and negligence prevented it from happening in time to save lives.

 

To speak with a lawyer call 410-849-9529

Nationwide Toll Free 1-800-932-0979

 

As a result of this report, lawsuits that were previously settled may be reopened as lawyers allege GM deceived their client's as part of the settlement. In fact, the GM will likely have to pay a hefty price before this is all over. In fact, outside attorney's have warned GM that juries could award hefty punitive damages and that it should settled cases instead of going to trial.

 

For current and former GM owners impact by the recall you need to file your claim right away to protect your rights. The GM Settlement Fund is accepting applications between August 1 and December 31, 2014. All claims must be post-marked by December 31, 2014. To find out if your car is part of the recall go to GM Latest Recall.

 

The GM bankruptcy is no bar to filing a claim. Secondly, those who may have settled prior to the release of the the Valukas report can also file a claim according Kenneth Feinberg.

 

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Nationwide Toll Free 1-800-932-0979

Charities Liable Only to Extent of Liability Insurance

Baltimore Personal Injury lawyer discussion about the common law immunity from tort liability for charitable organization. Maryland law states that a charitable organization can avoid liability for a tort such as negligence that causes  injuries to a third party based on the trust fund theory. The latter theory follows the tenet that a charitable organization's funding is meant for its charitable purposes and not to pay tort victims. As a result, funds provided to a charity for its work are not accessible to victims. Any recovery is limited to whatever insurance coverage the charity has. I do not know any one who takes pleasure in suing a local charity, but when someone else has been victimized by the charity's negligent acts justice requires a level of compensation be paid to the victim.

Attached below is a case addressing this issue.

KENNETH JAMES ET UX. v. PRINCE GEORGE'S COUNTY, MARYLAND DOUGLAS ARTHUR DAWSON v. PRINCE GEORGE'S COUNTY, MARYLAND ET AL.

Court of Appeals of Maryland.
Decided September 3, 1980.
Motion for reconsideration filed October 2, 1980.
Denied October 10, 1980.
James W. Taglieri, with whom was Robert Cadeaux on the brief, for Kenneth James et ux. John J. Pyne, with whom was William P. Dale on the brief, for Douglas Arthur Dawson.
David S. Bliden, Associate County Attorney, with whom were Robert B. Ostrom, County Attorney, and Michael O. Connaughton, Deputy County Attorney, on the brief, for appellee Prince George's County. Karl G. Feissner, with whom were Eric S. Slatkin and Feissner & Beckman on the brief, for appellee West Lanham Volunteer Fire Department, Inc.
The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
DIGGES, J., delivered the opinion of the Court. MURPHY, C.J., concurs in part and dissents in part, and filed an opinion concurring in part and dissenting in part at page 337 infra. These two actions, which have been consolidated and are here on certiorari before their consideration by the Court of Special Appeals, present primarily for decision the same question — the general extent to which a charter county may, and Prince George's County did as it affects the present cases, waive governmental immunity so as to make it liable for damages caused by the negligent acts of its officials or agents. Since we conclude both that there are situations, and they exist here, which can result in liability being imposed
[288 Md. 318]
upon counties positioned as Prince George's is in the present cases, we will reverse the judgments entered by the circuit court of that county dismissing, on immunity grounds, appellants' causes of action prior to trial. The factual background of each of these cases comes basically from the appellants' declarations filed in these actions and may be briefly related. In the first case, appellant Douglas Arthur Dawson seeks damages of $2,000,000 from appellees, Prince George's County and the Volunteer Fire Department of West Lanham Hills, Maryland, Inc., for personal injuries sustained in March 1976 when a fire truck, operated by a member of the volunteer fire company in response to a call for assistance, was alleged to have been negligently driven into the intersection of Good Luck Road and Cipriano Road in Prince George's County, where it struck Dawson's automobile and propelled it across the intersection into an electric pole. The second case before us also involves a motor vehicle accident — a collision between an automobile owned and operated by appellant Kenneth James and an ambulance owned by Prince George's County. The declaration which was filed by appellant and his wife Elizabeth (also an appellant before this Court) only against Prince George's County, asserts that, in November 1978, a county ambulance was negligently driven by an agent or employee of the county into the intersection of Marlboro Pike and Brooks Drive in Suitland, Maryland, where it collided with the James vehicle.1 As a result of this allegedly negligent act, Mr. James individually claimed personal and property damages of $1,000,000, while he and his wife jointly requested damages of $25,000 for loss of consortium. Prior to filing pleas, each appellee asserted, by way of a Motion Raising Preliminary Objection, that it was immune from liability for the type of tortious conduct alleged by Dawson and James. The volunteer fire company, on the one hand, argued that it was entitled to charitable immunity
[288 Md. 319]
due to its nonprofit, charitable status. The county, on the other, contended that, even though the Prince George's County Charter waived the governmental immunity which it had previously enjoyed, it nonetheless was still not liable for any damages caused by the negligent acts of its agents since these individuals were "public officials" cloaked with a qualified personal immunity for their conduct. This was so, asserted the county, because under the doctrine of respondeat superior, upon which each suit was based,2 it, as principal, may not be held derivatively liable for the damages the plaintiffs incurred, when the actual tortfeasor would not also be responsible. By separate rulings, the Circuit Court for Prince George's County agreed with the position of each appellee, and accordingly, dismissed the damage actions of both Dawson and James. This appeal then followed; and, as the county's claim of nonliability is central to each case, we shall first address that issue. The proper place to begin our analysis of the county's claim of immunity is with the provision of the county's own organic law — section 1013 of the Prince George's County Charter — which, as this Court recently observed, expresses the county's voluntary determination "to waive the immunity it would otherwise enjoy at common law for its acts...." Bradshaw v. Prince George's County, 284 Md. 294, 301, 396 A.2d 255, 259-60 (1979). Section 1013 was first enacted as part of the original charter, effective February 1971, by the people of Prince George's County pursuant to Article XI-A of the Maryland Constitution.3 At the time of
[288 Md. 320]
the accident involving appellant Dawson (March 1976), the provision, as it had from its inception, read: Section 1013. GOVERNMENTAL LIABILITY. The County may be sued in actions sounding in tort in the same manner and to the same extent that any private person may be sued. The County shall carry liability insurance with adequate limits to compensate for injury to persons or damage to property resulting from negligence and other wrongdoings of its officers, agents, and employees. Nothing herein shall preclude the County from meeting the requirements of this section by a funded self-insurance program.[4] Section 1013 was amended, however, in November 1976 in order to have it conform to an addition, made by the General Assembly earlier in that year, to the Express Powers Act. Md. Code (1957, 1973 Repl. Vol., 1979 Cum. Supp.), Art. 25A, § 5 (CC).5 The section now reads:
[288 Md. 321]
Section 1013. GOVERNMENTAL LIABILITY. The County may be sued in actions sounding in tort by actions filed in the courts of the State of Maryland, or in the United States District Court for the District of Maryland, with a maximum liability of Two-Hundred Fifty Thousand Dollars ($250,000) per individual, per occurrence, to the extent of its insurance coverage, whichever may be greater. The County shall carry liability insurance to protect itself, its officers, agents, and employees. Nothing herein shall preclude the County from meeting the requirements of this section by a funded self-insurance program, and nothing herein shall be deemed to be a waiver of any charitable, governmental, or sovereign immunity which any officer, agent, or employee shall otherwise have, by reason of any Statute of the United States of America, public general law of the State of Maryland, or common law as determined by the Courts of the State of Maryland.[6] It is clear that the amended Prince George's County Charter provision pertains to the James' cause of action since the alleged negligent conduct occurred after the effective date of that change; whether the monetary limitation contained in that charter modification applies to appellant Dawson's already accrued cause of action is a question which is not now before us on this appeal.7 This results from the fact that both the amendment and its predecessor provision have the same effect on the issue presently before us, i.e., they both purport to waive the county's own governmental immunity.
[288 Md. 322]
The scope of section 1013's initial waiver of immunity was first examined by this Court in Bradshaw v. Prince George's County, supra. There we held that when the county consented, in its original charter, to be sued "in the same manner and to the same extent [as] any private person," it accepted responsibility for those torts for which any private person could be held liable, either directly or derivatively. Id. at 301, 396 A.2d at 259-60. Moreover, we concluded in Bradshaw that the people of Prince George's County did not intend, by the enactment of section 1013, to eliminate the individual immunity which is available in certain instances to this county's public officials.8 Id. at 303-04, 396 A.2d at 261. Such intent is now expressly stated in the amended charter: "nothing herein shall be deemed to be a waiver of any charitable, governmental, or sovereign immunity which any officer, agent, or employee shall otherwise have...." Having further observed that private persons in this State could not be held liable for the torts of an agent, who by reason of his relationship to the tort victim (i.e., spouse, parent or child) was personally immune, this Court reasoned in Bradshaw that a similar principle should prevent the county from being held liable for the actions of its agents who have public-official immunity. Id. at 305, 396 A.2d at 262. Accepting the continuing integrity of our decision in Bradshaw — that the county remains without liability if the tortious conduct on which the suit is based is the act of an individual who is personally immune — the central issue before this Court in the present case now is whether the drivers of the emergency vehicles were "public officials"; and if so, whether official immunity would protect these agents from liability for their negligent acts. Relying exclusively on this Court's decision in Bradshaw that a police officer is a "public official" who is immune from liability for nonmalicious acts committed during the performance of his duties, the circuit court determined that the drivers of all authorized emergency vehicles are, as are police, engaged in
[288 Md. 323]
the exercise of discretion in responding to a call. Thus, it reasoned that they are public officials and immune. Specifically, the trial court pointed to the fact that in response to an alarm, the driver had to decide whether to use his emergency signals and sirens, the route to be taken, how fast to proceed through traffic and which rules of the road to disregard. While we agree that the driver of an emergency vehicle must make many decisions in the operation of that conveyance, we cannot agree that he is thereby always immune (even assuming he is a public official) for negligently carrying out the driving decisions made. We explain. Before a governmental representative in this State is relieved of liability for his negligent acts, it must be determined that the following independent factors simultaneously exist: (1) the individual actor, whose alleged negligent conduct is at issue, is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties.9 E.g., Duncan v. Koustenis, 260 Md. 98, 104, 271 A.2d 547, 550 (1970); State, Use, Clark v. Ferling, 220 Md. 109, 113-14, 151 A.2d 137, 139-40 (1959); Cocking v. Wade, 87 Md. 529, 541, 40 A. 104, 106 (1898); Macy v. Heverin, 44 Md.App. 358, 361, 408 A.2d 1067, 1069 (1979); accord, Schoonfield v. Mayor & City Council of Baltimore, 399 F.Supp. 1068, 1088 (D. Md. 1975), aff'd, 544 F.2d 515 (4th Cir.1976); 2 F. Harper & F. James, The Law of Torts § 29.10, at 1638-39 (1956); W. Prosser, Handbook of the Law of Torts § 132, at 988-90 (4th ed. 1971); Restatement (Second) of Torts § 895D (1979); Bermann, Integrating Governmental and Officer Tort Liability, 77 Col. L. Rev. 1175, 1178-79 (1977). Once it is established that the individual is a public official and the tort was committed while performing a duty which involves the exercise of discretion, a qualified immunity attaches; namely, in the absence of malice, the
[288 Md. 324]
individual involved is free from liability. See, e.g., Bradshaw v. Prince George's County, supra, 284 Md. at 302-04, 396 A.2d at 260-61; Robinson v. Bd. of County Comm'rs, 262 Md. 342, 346-47, 278 A.2d 71, 74 (1971). The rationale underlying this grant of immunity "is that a public purpose is served by protecting officials when they act in an exercise of their discretion." Bradshaw v. Prince George's County, supra, 284 Md. at 304, 396 A.2d at 261. The first required factor for establishing immunity — whether an individual is a public official — has been considered often by this Court. Our most recent decision dealing with the concept of a "public official" in this context is Duncan v. Koustenis, supra, where we set forth the following principal guidelines to be used in making this determination: (i) The position was created by law and involves continuing and not occasional duties. (ii) The holder performs an important public duty. (iii) The position calls for the exercise of some portion of the sovereign power of the State. (iv) The position has a definite term for which a commission is issued and a bond and an oath are required. Id. at 105, 271 A.2d at 550. Accord, e.g, Board v. Attorney General, 246 Md. 417, 439, 229 A.2d 388, 400 (1967); Moser v. Howard County Board, 235 Md. 279, 281, 201 A.2d 365, 366 (1964); Gary v. Board of Trustees, 223 Md. 446, 449, 165 A.2d 475, 477-78 (1960). These guidelines are not conclusive, and the emphasis which may be placed on each varies depending upon the circumstances present in each case. Duncan v. Koustenis, supra, 260 Md. at 106, 271 A.2d at 551. Moreover, there are at least two well-recognized exceptions to the requirement that the above four factors be present, as explained by Judge Barnes for this Court in Duncan:
[288 Md. 325]
[A]n individual [who] fails to meet most of the above tests, and yet is nevertheless considered to be a public official, [is one] who exercise[s] "a large portion of the sovereign power of government" ..., Howard County Metropolitan Commission v. Westphal, 232 Md. 334, 340, 193 A.2d 56, 59 (1963), [as well as one] who can be called on to exercise police powers as [a] conservator of the peace. [Duncan v. Koustenis, supra, 260 Md. at 106, 271 A.2d at 551.] Prince George's County goes to great lengths in its brief in this Court to demonstrate that the drivers of the fire truck and the ambulance are both "public officials" under the rules we have just outlined. While there are no Maryland decisions directly on point, there is, by analogy to the cases of this Court holding police officers to be public officials, see Bradshaw v. Prince George's County, supra, 284 Md. at 302-03, 396 A.2d at 260-61 and cases cited therein, some merit to the county's argument as to the present drivers' status, particularly with regard to the firefighter, see Mercadante v. City of Paterson, 111 N.J.Super. 35, 266 A.2d 611 (1970), aff'd, 58 N.J. 112, 275 A.2d 440 (1971) (firefighter is a public official); Johnston v. City of Grants Pass, 120 Or. 364, 251 P. 713 (1926) (same); Benefiel v. Eagle Brass Foundry, 154 Wn. 330, 282 P. 213 (1929) (same); however, we find that we need not decide whether such individuals are "public officials" in this State, for even if they are, the drivers fail, in our view, to meet the second requirement necessary to establish public-official immunity — that the alleged negligent act (here, the ordinary and routine driving of an emergency vehicle) is one which involves discretion as to how the police power of the sovereign should be exercised. As we previously indicated, the protection afforded "public officials" by this State's immunity doctrine depends upon the nature of the conduct of the agent being questioned. The distinction which this Court has developed in the past for determining whether a "public official" is immune from liability is whether this individual, at the time the complained of act occurred, was performing a discretionary or ministerial task. If the former, then public-official immunity shields him from liability, but if the latter, then
[288 Md. 326]
it does not. See, e.g., Robinson v. Bd. of County Comm'rs, supra, 262 Md. at 346-47, 278 A.2d at 74; Duncan v. Koustenis, supra, 260 Md. at 104, 271 A.2d at 550; Cocking v. Wade, supra, 87 Md. at 541, 40 A. at 106. A similar distinction has developed in the majority of our sister states. See, e.g., 2 F. Harper & F. James, supra, § 29.10, at nn. 4-7 and accompanying text (citing numerous cases); W. Prosser, supra, § 132, at 988-89 (majority rule); C. Rhyne, W. Rhyne & S. Elmendorf, Tort Liability and Immunity of Municipal Officials 15-25 (1976). While this dividing line between immunity and liability is one of longstanding in Maryland, we have only rarely explained the difference between discretionary and ministerial acts. In State, Use, Clark v. Ferling, 220 Md. 109, 151 A.2d 137 (1959), Judge Prescott, however, did note for this Court that "ministerial refers to duties in respect to which nothing is left to discretion as distinguished from those where the official has the freedom and authority to make decisions and choices." Id. at 113, 151 A.2d at 139. And in Schneider v. Hawkins, 179 Md. 21, 25, 16 A.2d 861, 864 (1940), we explained: The term "discretion" denotes freedom to act according to one's judgment in the absence of a hard and fast rule. When applied to public officials, "discretion" is the power conferred upon them by law to act officially under certain circumstances according to the dictates of their own judgment and conscience, and uncontrolled by the judgment or conscience of others. The ministerial-discretionary distinction was aptly summarized by the California Supreme Court over eighty years ago:
[288 Md. 327]
Where [a public officer's] duty is absolute, certain, and imperative, involving merely the execution of a set task — in other words, is simply ministerial — he is liable in damages to anyone specially injured either by his omitting to perform the task, or by performing it negligently or unskillfully. On the other hand, where his powers are discretionary, to be exerted or withheld according to his own judgment as to what is necessary and proper, he is not liable to any private persons for a neglect to exercise those powers, nor for the consequences of a lawful exercise of them, where no corruption or malice can be imputed, and he keeps within the scope of his authority. [Doeg v. Cook, 126 Cal. 213, 58 P. 707, 708 (1899).] See also Restatement (Second) of Torts § 895D, comment f (1979) (factors in determining whether function is discretionary include, among others, nature of function, importance to public, planning v. operational, essentially political decision); C. Rhyne, et al., supra, at 16 (discretionary function — quasi-judicial in nature in that it requires personal deliberation and judgment). When attempting to classify the particular actions of a public official, a court should be careful not to let the mere fact that decisions are made in performing the questioned task be determinative of whether liability attaches to the conduct, for "[i]n a strict sense, every action of a government employee, except perhaps a conditioned reflex action, involves the use of some degree of discretion." Swanson v. United States, 229 F.Supp. 217, 219-20 (N.D. Cal. 1964). Or as has been otherwise expressed: "it would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail." Johnson v. State, 69 Cal.2d 782, 447 P.2d 352, 357, 73 Cal.Rptr. 240 (1968) (en banc). Thus, an act falls within the discretionary function of a public official if the decision which involves an exercise of his personal judgment also includes, to more than a minor degree, the manner in which the police power of the State should be utilized. The case now before us presents an excellent example of what we mean. The driving of an emergency vehicle such as an ambulance or fire truck requires, as does the driving of any automobile, that a number of decisions be made with regard to the manner of operation. Such decisions, however, involve to minimal degree, if at all, the exercise of discretion with
[288 Md. 328]
regard to the State's sovereignty. While State law grants certain privileges to the operators of these vehicles when using audible and visual signals, Md. Code (1977), Transportation Art., § 21-106(b),10 it "does not relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons." Id. at § 21-106 (d). In light of this section, there is minimal discretion on the part of a fire truck driver as to how he drives; but even if this statute did not exist, we would nevertheless hold that ordinarily the operation of a vehicle by any one, including a "public official," is a mere ministerial act. See, e.g., Friday v. United States, 239 F.2d 701, 703 (9th Cir.1957) (government truck); Florio v. Mayor and Aldermen of Jersey City, 101 N.J.L. 535, 129 A. 470, 471-72 (1925) (fire truck); Hansley v. Tilton, 234 N.C. 3, 65 S.E.2d 300, 303 (1951) (school bus); Wynn v. Gandy, 170 Va. 590, 197 S.E. 527, 529 (1938) (school bus). Cf. Md. Code (1957, 1973 Repl. Vol., 1979 Cum. Supp.), Art. 23A, § 1B (b) (municipal official not immune for torts arising out of operation of automobile). In contrast, if what we had before us was a suit arising out of the discretionary decision of a fire chief (although generally authorized) to destroy a specific non-burning building in order to contain a fire in another nearby building, we would have no doubt that this action would isolate this public official from liability since it involves an exercise of his personal judgment and expertise in furtherance of the State's police power. In sum, we hold that the normal operation of a vehicle, including those on an emergency mission, is not ordinarily a discretionary act for which immunity will shield the driver from liability for negligence. Therefore, since the individuals here possess no immunity, neither, with its waiver, does
[288 Md. 329]
Prince George's County; and if the operation of these vehicles in furtherance of the county's business was negligent, then Prince George's County is liable for any damages caused by such conduct. Bradshaw v. Prince George's County, supra. In addition to the conclusion expressed above, there is, because we now entertain a different view with respect to some of the issues addressed in Bradshaw, another basis for holding Prince George's County liable for the damages, if any, caused by the negligent conduct of its agents. As discussed previously in this opinion, the people of Prince George's County waived, through their charter, the county's own governmental immunity by consenting to suits "in actions sounding in tort in the same manner and to the same extent that any private person may be sued," which we construed in Bradshaw as limiting the county's liability to only those torts committed by its non-immune agents. Upon further reflection, however, we now conclude that such a construction of this language was too narrow in scope, and that the terminology chosen reflects a voluntary election by the people of the county to provide for liability on the part of their government notwithstanding the status or personal amenability to suit of the individual agent who commits the tort. We explain. When waiving governmental immunity for tortious conduct, Prince George's County, by assenting to suits "in the same manner and to the same extent" as that of "any private person," employed words which, because of their general use in nearly all of the immunity waiver statutes throughout this country, as well as their interpretation, may now be considered, when used together in this context, to constitute a phrase of art.11 See, e.g., 28 U.S.C. § 2674
[288 Md. 330]
[288 Md. 331]
(1970); Colo. Rev. Stat. § 24-10-106 (1973); Fla. Stat. Ann. § 768.28(5) (West Cum. Supp. 1980); Haw. Rev. Stat. § 662-2 (1976 Repl. Vol.); Iowa Code Ann. § 25A.2(5)(a) (West 1978); Mont. Rev. Codes Ann. § 83-701 (1976 Repl. Vol.); Neb. Rev. Stat. § 81-8,210(4) (1971 Repl. Vol.); Nev. Rev. Stat. § 41.031 (1973); N.Y. Ct. Cl. Act. § 8; N.C. Gen. Stat. § 143-291 (1978 Repl. Vol., 1979 Supp.); Ohio Rev. Code Ann. § 2743.02(A) (Page 1953, 1979 Supp.); R.I. Gen. Laws § 9-31-1 (1956, 1979 Supp.); Tenn. Code Ann. § 23-3302(4) (1956, 1978 Supp.); Tex. Civ. Code Ann. tit. 6252-19, § 3 (Vernon 1970, 1979 Supp.); Wash. Rev. Code Ann. § 4.92.090 (1962, 1980 Supp.).12 The construction given to this language in the courts of our sister jurisdictions, which, unless contrary to sound logic, are persuasive authority for the intended meaning of this phrase, see Unsatisfied C. & J. Fund v. Hamilton, 256 Md. 56, 58-62, 259 A.2d 303, 305-07 (1969); St. Joseph Hospital v. Quinn, 241 Md. 371, 377, 216 A.2d 732, 735-36 (1966), is that the applicable governmental entity is liable for conduct "which would be actionable if ... done by a private person in a private setting." Edgar v. State, 92 Wn.2d 217, 595 P.2d 534, 539 (1979) (en banc) (emphasis added); accord, e.g., Rayonier Incorporated v. United States, 352 U.S. 315, 318-19, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957); Indian Towing Company v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Commercial Carrier Corp. v. Indian River Cty, 371 So.2d 1010, 1017 (Fla. 1979); Rogers v. State, 51 Haw. 293, 459 P.2d 378, 381 (1969); Upchurch v. State, 51 Haw. 150, 454 P.2d 112, 114 (1969); State v. District Ct. of Fourteenth Judicial Dist., 572 P.2d 201, 203-04 (Mont. 1977); Jones v. State, 33 N.Y.2d 275, 307 N.E.2d 236, 237-38, 352 N.Y.S.2d 169 (1973); Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604, 605 (1945); Macfarlane v. North Carolina Wildlife R. Com'n, 244 N.C. 385, 93 S.E.2d 557, 559 (1956); Harris v. State, 48 Ohio Misc. 27, 358 N.E.2d 639, 641 (Ct. Cl. 1976). In other words, the government, under such statutes, is answerable equally with individuals and private corporations for the wrongs of its officers and employees, and thus, a court should not, as we did in Bradshaw, treat Prince George's County as a private entity with public-official agents, but rather as a private entity utilizing private persons as its agents.13 See Bernardine v. City of New York, supra, 62 N.E.2d at 605. Consequently, if the complained of conduct is performed by a county representative while acting within the scope of his employment but in a negligent manner, Prince George's County will be subject to suit for the resulting damage, without regard to the fact that the agent has public-official immunity. Even without this determination — that, for purposes of county liability, the county's agents are to be treated as though they were private persons — we would still hold that Prince George's County under the terms of each of its successive waiver provisions, is responsible for the torts of
[288 Md. 332]
[288 Md. 333]
its agents who have public-official immunity because we conclude that the doctrine of respondeat superior should not, except possibly in the limited circumstances to be mentioned presently, permit a principal to assert the immunity of the agent in a suit founded on the agents' conduct. Respondeat superior, or vicarious liability as it is also known, is a principle of tort law which "means that, by reason of some relationship existing between A and B, the negligence of A is to be charged against B, although B has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it." W. Prosser, supra, § 69, at 458. The doctrine most often arises in the context of suits against masters for the torts of their servants committed in the course of their employment. As a general rule, followed by a vast majority of American courts, the master remains liable for the servant's conduct even though the servant is himself not liable because of a personal immunity. See 2 F. Harper & F. James, supra, § 26.17, at 1427 n. 6 (citing cases); Annot., 1 A.L.R.3d 677, 689-99 (1965 & 1979 Supp.) (citing cases from 25 American jurisdictions plus England & Canada); Restatement (Second) of Agency § 217 (1958); W. Seavy, Handbook of the Law of Agency § 93, at 167 (1964). However, there is an exception to this view, recognized in Maryland and a handful of other jurisdictions, which permits an employer to assert the immunity of the employee in a suit by a member of the employee's family. See Riegger v. Brewing Company, 178 Md. 518, 523, 16 A.2d 99, 101 (1940) (suit by wife against husband's employer); Annot., 1 A.L.R.3d, supra, at 685-86 (citing cases from six jurisdictions).14 The immunity granted to family members was created to discourage the destruction of family harmony, see Riegger v. Brewing Company, supra, 178 Md. at 522, 16 A.2d at 101, and thus, to permit a minor child, for example, to sue a parent's employer for injuries sustained as a result of the parent's negligence while acting in the scope of his employment, with the accompanying ability of the employer to seek reimbursement from the erring agent, would allow the child to accomplish indirectly what he could not do directly. See Sherby v. Weather Brothers Transfer Company, 421 F.2d 1243, 1246 (4th Cir.1970) (applying Maryland law); cf. Riegger v. Brewing Company, supra (suit by wife). However, the promotion of such a purpose is not present when a personal immunity such as public-official immunity is involved. Unlike inter-family immunity, official immunity does not depend on the special relationship between tortfeasor and victim. While a suit for indemnification could be maintained by a principal against his negligent agent for damages paid to the agent's child (thus, circumventing the immunity), a similar suit could not be brought by the government against its public-official agent because his official immunity would still bar the suit. Therefore, there is no reason to extend to the governmental-official immunity area of the law, as we did in Bradshaw, the inter-family immunity exception principle to the respondeat superior rule, and we now decline to follow this aspect of that decision. In so ruling, we note that nearly all of the courts, both state and federal, considering the question, have adopted the view we announce here — that the government, when it has waived immunity in a fashion similar to Prince George's County in section 1013, is liable for torts committed by its officers even though those officers themselves are not liable because of public-official immunity. See, e.g., Carter v. Carlson, 447 F.2d 358, 367 (D.C. Cir.1971), rev'd on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418 (1973); United States v. Trubow, 214 F.2d 192, 195-96 (9th Cir.1954); Norton v. Turner, 427 F.Supp. 138, 146-47 (E.D. Va. 1977), rev'd sub nom. Norton v. United States, 581 F.2d 390 (4th Cir.), cert. denied, 439 U.S. 1003 (1978); Downs
[288 Md. 334]
v. United States, 382 F.Supp. 713, 750 (M.D. Tenn. 1974), aff'd on this issue, 522 F.2d 990 (6th Cir.1975); Bridges v. Housing Auth., 375 P.2d 696, 702-03 (Alaska 1962); Patterson v. City of Phoenix, 103 Ariz. 63, 436 P.2d 613, 617 (1968); Krause v. State, 28 Ohio App.2d 1, 274 N.E.2d 321, 326 (1971), rev'd on other grounds, 31 Ohio St.2d 132, 285 N.E.2d 736, appeal dismissed, 409 U.S. 1052 (1972); Muntan v. City of Monongahela, 45 Pa.Commw. 23, 406 A.2d 811, 813-14 (1979); Wicks v. Milzoco Builders, Inc., 25 Pa.Commw. 340, 360 A.2d 250, 253 (1976). See also Bermann, Integrating Governmental and Officer Tort Liability, 77 Col. L. Rev. 1175, 1186-87 (1977); Restatement (Second) of Torts § 895D, comment j (1979). Particularly instructive, and in this regard typical, is the reasoning expressed in the following passage from Downs v. United States, supra:
[288 Md. 335]
The Government contends that the FBI agents involved in this case would be entitled to officer immunity, and that consequently the United States is likewise immune under the Tort Claims Act's doctrine of respondeat superior. In the posture of this case, it is unnecessary to decide the extent to which FBI agents perform discretionary activity and are thus protected by immunity, for even if they would be, it does not follow that the United States is also immune under the Tort Claims Act. In fact, the court feels that a desirable relationship of sovereign and officer immunity compels an opposite result.... Initially, the application of immunity sought by the Government would largely emasculate the purpose of the Tort Claims Act; it would be inconsistent with the Act's waiver of immunity for the Government to reclaim immunity merely because no action could be brought against the employee whose act or omission gave rise to a damage claim.... Furthermore, the fundamental reason for the two immunities differ; for the officer it is to encourage unrestrained execution of responsibility, while for the sovereign it is to prevent judicial scrutiny of basic policies formulated by coordinate branches of government. To insulate the Government [(against its wishes)] from liability for the inevitable mishaps which will occur when its employees perform their functions without fear of liability not only is unjust, but also serves no purpose for which sovereign immunity need exist. Further, given the general trend favoring growth of officer immunity, a rule which makes the United States immune as well would, in time, largely emasculate the remedial purposes of the Tort Claims Act. [382 F. Supp. at 749-50.] While ordinarily enactments in derogation of the common law are to be strictly construed, e.g., Bradshaw v. Prince George's County, supra, 284 Md. at 302, 396 A.2d at 260 (assuming this principle is applicable to organic law such as a charter provision), we would be remiss if we ignored the remedial nature of section 1013 of the Prince George's County Charter, as well as the provisions of the Express Powers Act, and the rule of statutory construction that such statutes are to be liberally construed in order to advance the remedy and obviate the mischief which these laws were designed to redress. See, e.g., Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 494, 331 A.2d 55, 61 (1975); State v. Barnes, 273 Md. 195, 208, 328 A.2d 737, 745 (1974). In balancing these competing considerations, we take comfort in the words of Mr. Justice Frankfurter when he addressed a similar conflict for the Supreme Court concerning the Federal Tort Claims Act:
[288 Md. 336]
The broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of governmental activities in circumstances like unto those in which a private person would be liable.... Of course, when dealing with a statute subjecting the Government to liability for potentially great sums of money, this Court must not promote profligacy by careless construction. Neither should it as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it. [Indian Towing Company v. United States, supra, 350 U.S. at 68-69.] Accordingly, we modify the holding announced in Bradshaw, and conclude that the language waiving immunity from tort liability set forth in the Prince George's County Charter, and as is also contained in the specific authorization in the Express Powers Act, makes the county liable for the negligent conduct of all of its employees occurring in the course of their employment, without regard to their status as public officials.15 Turning lastly to the claim of immunity raised by appellee Volunteer Fire Company of West Lanham Hills, Maryland, Inc., we find that the record does not contain the information necessary to reach a conclusion on this issue. Consequently, we will remand, without affirmance or reversal, this matter to the trial court for further proceedings and decision in accord with the views we now express. Md. Rule 885. Initially, we mention that the mere fact that the fire company is a nonprofit corporation does not mean that it is entitled to charitable immunity. It is well-settled that charitable immunity in Maryland exists and is founded upon what has come to be known as the "trust fund theory," i.e., "damages cannot be recovered from a fund held in trust for
[288 Md. 337]
charitable purposes," for to do so "would not be to apply it to those objects whom the author of the fund had in view." Perry v. House of Refuge, 63 Md. 20, 27-28, 52 Am. Rep. 495 (1885). Accord, e.g., Wood v. Abell, 268 Md. 214, 240-41, 300 A.2d 665, 678 (1973); Loeffler v. Sheppard-Pratt Hosp., 130 Md. 265, 271, 100 A. 301, 303-04 (1917). See generally Note, The Doctrine of Charitable Immunity — The Persistent Vigil of Outdated Law, 4 U. Balt. L. Rev. 125 (1974). Thus, only when the assets of the charitable organization are held in trust, either expressly or by implication, and when the corporation has no liability insurance covering the complained of act, Md. Code (1957, 1979 Repl. Vol.), Art. 48A, § 480, does the charitable immunity doctrine apply. Without examining the articles of incorporation of the fire company or taking evidence concerning the form of ownership of its assets, it is impossible to determine the validity of a claim of charitable immunity. Cf. Annapolis v. W. Anna. Fire & Imp. Co., 264 Md. 729, 737, 288 A.2d 151, 155 (1972) (volunteer fire company, although possibly a charitable corporation, not necessarily a charitable trust). Since there has been no factual determination with regard to the status of the present volunteer fire company, but merely an unsupported conclusion that since it was such a company it was immune from suit, as already indicated, we remand its exemption from suit assertion for redetermination in accord with the views we here expressed. Judgment of the Circuit Court for Prince George's County in each case reversed and the cases are remanded to that court for further proceedings. Costs to be paid by appellees. Murphy, C.J., concurring in part and dissenting in part: I agree with the Court that the judgments in these cases must be reversed because, without regard to whether the drivers of the emergency vehicles were "public officers" or not, they were exercising ministerial, as opposed to
[288 Md. 338]
discretionary duties, at the time of the accidents as to which, under § 1013 of the County Charter, the County had waived its immunity from suit. I do not agree, however, with the Court's alternate reason for reversing the judgments, namely, that Bradshaw v. Prince George's County, 284 Md. 294, 396 A.2d 255 (1979), decided by a unanimous Court a little more than a year ago, wrongly concluded that the County's waiver of governmental immunity under § 1013 was a limited one, not encompassing nonmalicious, negligently performed tortious acts committed by its public officers in the performance of discretionary duties where the public officer was himself immune from liability for his conduct. Under § 1013 of the County's Charter, as it read at the time of the suit in Bradshaw, the County authorized the filing of suits against it "in actions sounding in tort in the same manner and to the same extent that any private person may be sued." We concluded in Bradshaw that this language did not constitute a blanket waiver of the County's governmental immunity but rather that it intended to subject the County to derivative liability under the doctrine of respondeat superior for the tortious acts of its officers and employees where, but only where, they were themselves legally liable for their acts. We said that by providing that its liability to suit shall be "in the same manner and to the same extent" as that of "any private person," the County accepted liability for those torts, but only those torts, for which a private person would be responsible, either directly or derivatively. Because the police officer sued in Bradshaw was a public officer, and therefore not liable under the law of Maryland for discretionary actions negligently performed, we concluded, applying the doctrine of respondeat superior, that the County had not waived its immunity and was therefore not liable in such an action. Our position was buttressed somewhat by cases involving Maryland's concededly minority view of non-liability under the interfamily immunity doctrine. See Stokes v. Taxi Operators Ass'n, 248 Md. 690, 237 A.2d 762 (1968), and Riegger v. Brewing Company, 178 Md. 518, 16 A.2d 99 (1940).
[288 Md. 339]
Moreover, because § 1013 was in derogation of the common law of Maryland, thus requiring a strict construction, we interpreted its provisions to subject the County to suit for actionable tortious conduct on the part of public officers for which liability could be imputed to the County, i.e., negligently performed ministerial acts, but not negligently performed discretionary acts. The majority now interprets § 1013, as it stood when the Bradshaw case was filed, and as it now reads, to constitute a total waiver of the County's governmental immunity and to subject it to liability just as if it were a private corporation, so that it will be responsible in damages for the discretionary acts of public officers, negligently as well as maliciously performed. Thus, the simple negligence of county police officers, firemen and jail guards, to mention a few, will subject the County to a damage suit, even though the public officer himself is immune for all but his malicious acts. This result is mandated, according to the majority, by the interpretation placed by other jurisdictions on language similar to that used in § 1013 in effectuating a waiver of governmental immunity. The majority concludes that the provisions of § 1013, assenting to suits "in the same manner and to the same extent" as that of "any private person," constitute a "phrase of art" in immunity statutes throughout the country, uniformly interpreted to mean that the waiver of immunity renders the governmental entity liable for conduct "which would be actionable if ... done by a private person in a private setting." While the authorities marshaled in support of the majority opinion are impressive indeed, it is noteworthy that the waiver provisions involved in several of the cases relied upon by the majority to support its construction of § 1013, as well as in other cases, imply an exception from the immunity waiver for discretionary functions performed by governmental officers. See Commercial Carrier Corp. v. Indian River Cty., 371 So.2d 1010 (Fla. 1979); Weiss v. Fote, 7 N.Y.2d 579, 167 N.E.2d 63 (1960); Harris v. State, 48 Ohio Misc. 27, 358 N.E.2d 639 (1976); Evangelical United Brethern Church v. State, 67 Wn.2d 246, 407 P.2d 440 (1965).
[288 Md. 340]
I do not subscribe to the majority's view that the critical provisions of § 1013 constitute a "phrase of art" inexorably leading to the conclusion that the words used mean what similar phrases have been held to mean in other jurisdictions. In Bradshaw, we ascertained that the waiver of immunity was intended by the County to be a limited one. From the outset, the County has steadfastly maintained that its waiver of immunity was limited as set forth in Bradshaw. I am satisfied that the Court's construction of § 1013 in Bradshaw was correct. In this connection, it is worth noting that engrafted upon the waiver of immunity by the United States in the Federal Tort Claims Act, 28 USCA § 2674, et seq. (that the government shall be liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances") is an express exception in § 2680 for claims based upon the exercise or failure to exercise discretionary functions or duties by federal employees, whether the employee abused his discretion or not.

FootNotes

1. The accident report, which was filed in response to the county's demand for particulars and is part of appellants' pleading in this case, Md. Rule 346, indicates that the ambulance was on an emergency call, was operating its emergency lights and siren at the time of the collision, and had proceeded into the intersection although the traffic signal for it was red.2. We should note for the reader that all nonprofit incorporated volunteer fire companies are, by county code, "declared to be an instrumentality of Prince George's County...." Prince George's County Code § 11-207 (a) (1975). We recently held that this provision, in conjunction with sections 11-125 and 11-126 of the county code establishing the office and powers of fire chief, place volunteer firemen under the control and direction of the county when going to or from, or when fighting fires. Prince George's Co. v. Chillum-Adelphi, 275 Md. 374, 383-84, 340 A.2d 265, 271-72 (1975). It is this control which forms the link for holding the county liable, on respondeat superior grounds, for the actions of volunteer firefighters.3. A charter county's power and authority to govern is limited to that granted directly by Article XI-A, § 1 of the Maryland Constitution, or through the express powers given such counties by the General Assembly pursuant to § 2 of that same Article. See Ritchmount Partnership v. Board, 283 Md. 48, 58-59, 388 A.2d 523, 530-31 (1978).4. Without addressing the constitutionality of section 1013, this Court did uphold the effectiveness of it in Bradshaw v. Prince George's County, 284 Md. 294, 297-99, 396 A.2d 255, 258 (1979), as being within the broad grant of power to legislate for the general welfare contained in the Express Powers Act, Md. Code (1957, 1973 Repl. Vol.), Art. 25A, § 5 (S); likewise, no one questions the constitutionality of the provision here and we do not consider it.5. This provision of the Express Powers Act provides: To provide by ordinance or inclusion in the county charter for the waiver of sovereign immunity so that the county may be sued in tort actions in the same manner and to the same extent that any private person may be sued. Any chartered county enacting legislation or otherwise waiving sovereign immunity under this subsection shall carry comprehensive liability insurance to protect itself, its agents and its employees. The purchase of this insurance shall be considered as for a public purpose and as a valid public expense. The liability of any county under this subsection may not be greater than $250,000 or the amount of its insurance coverage, whichever is greater, per individual per occurrence. A county which has adopted legislation or otherwise availed itself of the powers contained in this subsection may raise the defense of sovereign immunity to any amount in excess of the limit of its insurance coverage. In any case, the several counties or any county availing itself of the privileges of this subsection may not raise the defense of sovereign immunity in any claim of less than $250,000 or the amount of its insurance coverage, whichever is greater. [Md. Code (1957, 1973 Repl. Vol., 1979 Cum. Supp.), Art. 25A, § 5 (CC).] This initial explicit grant of power to charter counties to waive, if they so elect, governmental immunity became effective on July 1, 1976. In these cases, since no one questions it, we are not called upon to express any views concerning the validity of any portion of this legislative enactment.6. Also we are not called upon here to consider the extent, if at all, that a charter county may elect to waive governmental immunity in a more restrictive manner than that authorized by the Express Powers Act.7. The question of the monetary limitation's application to appellant Dawson's already accrued cause of action will not arise unless the damages eventually awarded exceed that restriction, and therefore we do not now consider it.8. We do not here consider whether the county possesses authority to eliminate the immunity enjoyed by its public officials.9. To the extent that Carder v. Steiner, 225 Md. 271, 170 A.2d 220 (1961) and similar cases indicate that the existence of the first factor alone is sufficient to create public-official immunity, they are overruled.10. Section 21-106 (b) of the Transportation Article provides: (b) Enumeration of privileges. — Under the circumstances stated in subsection (a) of this section, the driver of an emergency vehicle may: (1) Park or stand without regard to the other provisions of this title; (2) Pass a red or stop signal, a stop sign, or a yield sign, but only after slowing down as necessary for safety; (3) Exceed any maximum speed limit, but only so long as the driver does not endanger life or property; and (4) Disregard any traffic control device or regulation governing direction of movement or turning in a specified direction.11. Although the modified waiver provision of the Prince George's County Charter does not contain these words of art, the section of the Express Powers Act permitting charter counties to waive governmental immunity does adopt this same phraseology. See Md. Code (1957, 1973 Repl. Vol., 1979 Cum. Supp.), Art. 25A, § 5(CC) (set out in full n. 5, supra.) Since Section 1013, as amended, of the charter was enacted pursuant to section 5(CC) of Article 25A, our construction of the phrase "in the same manner and to the same extent [as] any private person" is applicable to both waivers by the county. We also note that the waiver authorization provision of the Express Powers Act was enacted by the General Assembly prior to our decision in Bradshaw, and thus, there is no question of the legislature adopting our earlier construction of the language found in the Prince George's County Charter when it used similar terminology in Article 25A of the Code.12. Professor Davis notes in his treatise on administrative law that, as of 1976, thirty-four states have enacted statutes which at least to some extent waive unconditionally governmental immunity. K. Davis, Administrative Law of the Seventies § 25.00-1 (1976).13. This does not mean, however, that a court, when determining whether an act of a governmental agent is negligent, should ignore the status of the individual involved and the situation which faced him when he engaged in the complained of conduct. For example, in Bradshaw, supra, the negligence alleged was the failure of county police officers to properly care for a child which they observed hanging from a trash dumpster. Concluding, following tests, that the infant was dead, the officers, in order to preserve as an aid to their further investigation of what they deemed to be the scene of a crime, did not remove the child and attempt to revive him. 284 Md. at 296, 396 A.2d at 257. Since negligence is the doing of (or failure to do) some act, which a reasonably prudent person would do (or not do) in the same, or under like, circumstances, e.g., Aleshire v. State, 225 Md. 355, 366, 170 A.2d 758, 764 (1961); Minch v. Hilkowitz, 162 Md. 649, 651, 161 A. 164, 165 (1932), the officers' acts would only have been negligent if a reasonably prudent person with similar training, and under similar circumstances, would not have acted as the policemen did there. See 2 F. Harper & F. James, The Law of Torts § 16.6, at 917 (1956) (the standard of care for someone with special skills "require[es] the actor to exercise the degree of skill which the general class of persons engaged in that line of activity have"). It is because of what we have just said that, although overruling in the present case some of the specific analysis contained in our opinion in Bradshaw, we do not mean to imply that we would have necessarily reached a different result in that case.14. Our research indicates that after Maryland joined the small minority of states that adopted this principle of respondeat superior in Riegger v. Brewing Company, 178 Md. 518, 16 A.2d 99 (1940), no other jurisdiction, except for the District of Columbia, see Baker v. Gaffney, 141 F.Supp. 602 (D.D.C. 1956) (following Maryland law as its own), has likewise adopted it. In fact, a note in the Maryland Law Review concerning the Riegger decision points out that when this Court decided that case, the trend was clearly opposite the view there taken. 6 Md. L. Rev. 173, 175 n. 13 (1942). While Professor Prosser characterizes the Maryland view of vicarious liability in this area of inter-family immunity as "obsolete" in that it confuses immunity from suit with lack of responsibility, W. Prosser, Handbook of the Law of Torts § 122, at 869 (4th ed. 1971), we are not called upon here to decide whether to retain the doctrine as it pertains to inter-family immunity.15. By this decision we do not hold or imply that all acts or omissions by government bodies or officials may form the basis for recovery against the authority involved. Even though the statute before us contained no exception for discretionary functions or duties such as that contained in the Federal Tort Claims Act, we (as have a number of our sister states under similar circumstances) recognize that by implication there are certain discretionary policy-making, planning or judgmental governmental functions which cannot be the subject of traditional tort liability and thus remain immune from scrutiny by judge or jury as to its wisdom. Public policy and the maintenance of the integrity of our system of government necessitate such an exception for, in the words of Mr. Justice Jackson, "Of course, it is not a tort for government to govern." Although there is no occasion at this time for us to further delineate this demarcation, for authorities suggesting guidelines in identifying these activities, see Commercial Carrier Corp. v. Indian River Cty, 371 So.2d 1010, 1017-22 (Fla. 1979); Evangelical United Brethren Church v. State, 67 Wn.2d 246, 407 P.2d 440, 444-45 (1965). Cf. Frostburg v. Hitchins, 70 Md. 56, 66-67, 16 A. 380, 381-82 (1889); Hitchins v. Frostburg, 68 Md. 100, 109-10, 11 A. 826, 828-29 (1887).

Abuse of Discovery Process in a Products Liability Case results in Attorneys Fees Against Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND RYAN W. POOLE, by his mother * and next friend, BARBARA ELLIOTT * CIVIL NO. WMN-98-280 V. * TEXTRON, INC., ET AL. * MEMORANDUM OPINION I. INTRODUCTION This is a product liability case in which the plaintiff, Ryan W. Poole ("Poole"), has sued Textron, Inc. ("Textron") for alleged defects in a golf car, which resulted in serious injuries to him. The trial judge referred the undersigned all discovery disputes. By Memorandum and Order dated May 20, 1999, after a hearing, I granted plaintiff's three discovery motions in part, ordered, inter alia, Textron to do substantial additional investigation to respond to Poole's discovery requests, and held sub curia the request for attorneys' fees or other sanctions pending further submissions and completion of the specified remedial actions. Textron filed with the trial judge objections to several of the discovery rulings, which the trial judge rejected, affirming the discovery rulings below. At the request of Textron, a further hearing was held on the request for attorneys' fees, costs and other sanctions, after which the parties submitted affidavits on the time expended and the appropriate hourly rate for the requested attorneys' fees. The matter is now ripe for 1These instances of discovery abuse are incomplete document production, failure to provide accurate interrogatory answers, lack of diligent search for documents and failure to provide a corporate designee able to address all specified areas of inquiry, defendants' refusal to answer questions at the deposition, defendants' lack of candor with the Court and counsel and Textron's attempt to conceal the existence of the 1998 GX-440 golf car in its possession. 2 decision. Before the Court is plaintiff's request for attorneys' fees and other expenses related to the three substantive discovery motions and other sanctions: the motion for sanctions raising six instances of discovery abuse,1 the motion to compel production of documents and the motion to determine sufficiency of answers and objections to requests for admissions. This Court has already ruled on the merits of these three motions. The current issue facing the Court is whether an award of expenses including attorneys' fees or other sanction is justified under the governing rules and case law and if so, the amount of expenses or sanction. Textron acknowledges this Court's authority to assess sanctions to punish discovery abuses under Fed. R. Civ. P. 37, Fed. R. Civ. P. 26(g) and the inherent authority of the Court. (Paper No. 63 at 6). However, Textron argues that an award of fees is inappropriate for several reasons. Chiefly, Textron argues that its collection and investigative efforts to comply with the Court's May 20, 1999 Order were both extensive and expensive -- costing Textron $23,260 in attorneys' fees and expenses. That "sanction" is, in Textron's view, 3 sufficient. Alternatively, Textron argues that plaintiff's request for expenses, including fees, in the amount of $50,346.89 is grossly excessive, under governing law. Specifically, Textron objects to the hourly rate charged by the plaintiff's counsel as not in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. For the reasons stated below, the Court awards $37,258.39 in expenses, including attorneys' fees, but declines to award any other sanction under the rules or its inherent power. II. GOVERNING LAW ON ENTITLEMENT TO SANCTIONS AND EXPENSES, INCLUDING ATTORNEYS' FEES As Textron acknowledged, this Court has authority to redress discovery misconduct under the Federal Rules as well as under its inherent powers, and can impose a range of sanctions from award of expenses against both a party and its counsel to an entry of a default judgment. The sanction, of course, depends on the nature of the discovery abuse. The Court's inherent authority is not displaced or limited by the sanctioning scheme of the Federal Rules. Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991). However, the Supreme Court has stated that "a finding [that counsel's conduct . . . constituted or was tantamount to bad faith] . . . would have to precede any sanctions under the Court's inherent powers." Roadway Express, Inc. v. Piper, 2 See, e.g., Shepherd v. ABC, 62 F.3d 1469, 1477 (D.C. Cir. 1995); Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1982); Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 195 (8th Cir. 1976). 3 See, e.g., Autornma Corp. v. Stewart, 802 F.2d 1284, 1287-88 (10th Cir. 1986); Weinberger v. Kendrick, 698 F.2d 61, 80 (2d Cir. 1982). 4Eisemann v. Greene, No. 98-9302, 2000 WL 197428 *2 (2nd Cir. Feb. 17, 2000); Crowe v. Smith, 151 F.3d 217, 239 (5th Cir. 1998); Grace v. Ctr. for Auto Safety, 72 F.3d 1236, 1243 (6th Cir. 1995). The Fourth Circuit has not yet spoken on the applicable burden of proof. 4 447 U.S. 752, 767 (1980); see also Chambers, 501 U.S. at 47. (“The narrow exceptions to the American Rule effectively limit a court's inherent power to impose attorney's fees as a sanction to cases in which a litigant has engaged in bad-faith conduct or willful disobedience of a Court's orders. . ."). The Supreme Court has cautioned restraint in the exercise of the inherent powers "[b]ecause of their very potency," Chambers, 501 U.S. at 44 and "[b]ecause inherent powers are shielded from direct democratic controls.” Roadway Express, 447 U.S. at 764. Accordingly, whether default judgment2 or some lesser punitive sanction, such as an award of attorneys' fees,3 is imposed under the inherent powers, courts require evidence of misconduct, usually characterized as "contumacious," "fraudulent" or "bad faith," with some courts requiring that the misconduct be shown by "clear and convincing evidence.4 As will be more fully discussed below, this Court finds the sanctioning scheme of Rules 37 and 26 of the Federal Rules of Civil Procedure sufficient to redress the violations here without 5 exercise of the inherent powers. As to plaintiff's motions to compel and to test the sufficiency of the answers and objections to the request for admission, Fed. R. Civ. P. 37 governs both the entitlement to expenses and the amount of such expenses. If such a motion is granted, the Rule provides, in pertinent part: [T]he Court shall . . . require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorneys' fees, unless the Court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's non-disclosure, response or objection was substantially justified, or that other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(4)(A) (emphasis added). Where, as here, the motion is granted in part and denied in part, the court shall "apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner." Fed. R. Civ. P. 37(a)(4). The Court has determined that there was no substantial justification for Textron's non-disclosure, responses and objections and that there were no circumstances that made an award of expenses unjust. Similarly, Rule 26(g)(3) provides, in pertinent part, that "if without substantial justification a certification is made in violation of the rule, the Court, upon motion or upon its own 5Notably, however, there are exceptions where courts have imposed fines or other monetary sanctions for Rule 26(g) violations. See Legault v. Zambarano, 105 F.3d 24, 28 (1st Cir. 1997); Gonsalves v. City of New Bedford, 168 F.R.D. 102, 114-15 (D. Mass. 1996) ($15,000 fine); Perkinson v. Houlihand's/D.C., Inc., 108 F.R.D. 667 (D.D.C. 1985), aff'd, 821 F.2d 686, 689 (D.C. Cir. 1987) (plaintiff's attorneys' fees and costs during much of litigation, not just fees and costs associated with discovery motion). 6Messrs. Andrew Gendron and Dilip B. Paliath of Goodell, DeVries, Leech & Gray and Robert H. Buechele, Corporate Counsel-Litigation for Textron signed the answers to the plaintiff's Interrogatories. Andrew Gendron and Dilip B. Paliath signed the responses to Requests for Production of Documents. On October 1, 1998, Mr. Paliath (who was clearly the junior lawyer on the case) struck his appearance as he apparently left the firm, and Mr. Thomas M. Goss entered his appearance. Throughout the case, Mr. Gendron has acted as lead counsel. Mr. Goss entered his appearance well into the discovery period. Mr. Gendron defended the Textron corporate deposition. Accordingly, by the time Mr. Goss entered his appearance the vast majority of the sanctionable conduct had already occurred. Messrs. Gendron and Goss signed the Answers and Objections to Requests for Admissions. 6 initiative shall impose upon the person who made the certification, the party on whose behalf the disclosure request, response, or objection is made, or both, an appropriate sanction which may include an order to pay the amount of reasonable expenses incurred because of the violation, including a reasonable attorney's fee." (emphasis added). By its language, Rule 26(g)(3) does not limit a court to the award of expenses only, but gives the Court latitude to fashion an "appropriate sanction," in addition to an award of expenses. Nevertheless, an award of attorneys' fees appear to be the sanction most commonly imposed in reported decisions. See Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse § 44(B)(3d. ed. 2000).5 The Court has determined that while counsel for Textron signed the various discovery responses,6 counsel had not conducted 7 the requisite "reasonable inquiry" and that the quality of the responses suggested an improper purpose, specifically "to cause unnecessary delay or needless cost of litigation." Fed. R. Civ. P. 26(g). Accordingly, there was no substantial justification for the certifications in violation of the rule. Thus, in the absence of certain findings (which the court does not make here), the rules direct the imposition of a sanction. Following is a discussion of the violations found as a result of the several motions and the sanction appropriate to each violation. III. PLAINTIFF'S MOTION FOR DETERMINATION OF SUFFICIENCY OF ANSWERS AND OBJECTIONS TO PLAINTIFF'S REQUEST FOR ADMISSIONS Regarding plaintiff's motion for determination of the sufficiency of Textron's answers and objections to plaintiff's request for admissions, the Court finds under Rule 37, in conjunction with Rule 36, that Textron's responses or objections were not substantially justified. To the contrary, with one exception, the responses and objections appeared crafted to sabotage the legitimate use of request for admissions. Under the plain language of the rule, a party must either lodge an objection or an answer to a request, but cannot do both. Pursuant to the requirements of Rule 36(a), the answering party that objects to a request for admissions does so at its own peril. 8 That is, Rule 36(a) mandates that a "matter is admitted unless . . . a written answer or objection" is served on the requesting party. (Emphasis added). Rule 36 also states, in detail, the requirements for denials, objections, partial admissions, and qualified answers. Failure to adhere to the plain language of this statute requires that the fact in question be admitted. See Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981). Rule 36 expressly permits a party to qualify an answer, but only "when good faith requires." See Thalheim v. Eberheim, 124 F.R.D. 34, 35 (D. Conn. 1988) ("Though qualifications may be required where a request contains assertions that are only partially correct, a reviewing court should not permit a responding party to undermine the efficiency of the rule by crediting disingenuous, hair-splitting distinctions whose unarticulated goal is unfairly to burden an opposing party.") (citations omitted); Havenfield Corp. v. H & R Block, Inc., 67 F.R.D. 93, 96 (W.D. Mo. 1973) ("Such a qualification or part denial must be clear."). In almost every response, Textron impermissibly lodged both an objection and an answer. Moreover, when Textron filed an answer, its complexity "undermine[d] the efficacy of the rule by crediting disingenuous, hair-splitting distinctions whose unarticulated goal is unfairly to burden an opposing party." Thalheim, 124 F.R.D. at 35 (citations omitted). 7In this motion, Poole detailed for the Court a pattern of discovery misconduct by Textron and sought entry of default judgment. While some of the misconduct was the subject of a separate motion to compel production of documents and while the Court denied the requested relief for other of the conduct, the motion was effective in assembling in one submission multiple instances of Textron's resistence to legitimate discovery demands. Textron never made it easy. The motion made clear to the Court how the sum of the instances were indeed greater than its parts. While the Court decided that the extraordinary relief of entry of default judgment was not justified, the Court ordered measures to remediate as best as possible Textron's discovery failures, described in the motion. 9 Accordingly, this Court believes the defendant's responses and objections lacked substantial justification. As the Court granted relief as to 12 out of the 13 contested requests (or 92% of the requests), the Court grants that percentage of the attorney time and expenses reasonably related to this motion. See Fed. R. Civ. P. 37(a)(4). IV. PLAINTIFF'S MOTION FOR SANCTIONS In his motion for sanctions filed pursuant to Rule 37 and the inherent powers of the Court, plaintiff charged that defendant Textron engaged in "improper discovery tactics [which] were willful, inexcusable and not in good faith" (Paper No. 29) and asked for a finding of liability, or alternatively certain relief tailored to each of the alleged instances of discovery abuse. (Id.). The Court found that many of plaintiff's complaints of discovery abuse were meritorious, and ordered considerable relief in terms of further investigation and production of discovery responses.7 A. Textron's Lack of Diligence in Providing Key, Requested 8In the body of this opinion, the Court discusses Textron's failure to produce key information in the areas of prior litigation, testing and design, in response to document requests or corporate deposition notice as particular egregious conduct, disabling plaintiff's prosecution of the product liability suit. However, the May 20, 1999 opinion found several other instances of discovery conduct, which indeed constituted a pattern of defense obduracy to legitimate discovery. In the prior opinion, the Court also found that Textron had provided a misleading, if not outright false, answer to an interrogatory regarding dynamic testing performed. Textron affirmatively and unequivocally stated that it had performed dynamic stability testing, that the GX-440 passed that testing, that there was no documentation of such testing but that "Don Thorpe, an E-Z-Go employee . . . has personal knowledge of such testing." (Paper No. 29, Ex. W). In his deposition, Mr. Thorpe denied knowledge that either he or anyone else had done any dynamic testing on the GX-440. (Paper No. 29, Ex. R). In reply, Textron stated that Mr. Thorpe may have misunderstood the term "dynamic testing," that Mr. Powell testified as to the type of "dynamic testing" that Textron does (not as would be described by an automotive engineer) and that plaintiff's counsel questioned Mr. Thorpe extensively about static stability testing. While plaintiff was plainly given inaccurate information regarding Mr. Thorpe's knowledge, plaintiff's counsel deposed him on issues other than dynamic testing and therefore his deposition was not totally useless and the Court denied the relief the plaintiff requested namely the cost of the Thorpe deposition. The Court was, however, concerned about Textron's failure to locate any documentation of the dynamic testing until plaintiff's search uncovered evidence of such testing. Testimony in prior cases has shown that dynamic testing was done and that persons other than Don Thorpe were involved and knowledgeable about it, making plain the falsity of Textron's answers to interrogatories. While the matter was later clarified, the answer demonstrated to the Court Textron's lack of adequate inquiry prior 10 Information The conduct this Court has found sanctionable violates Fed. R. Civ. P. 37, and, in some instances, Fed. R. Civ. P. 26(g) as well. Particularly egregious was Textron's lack of diligence in providing key, requested information, such as prior litigation involving the golf car model or testing whether in its response to requests for production of documents or its identification of designees for the corporation's deposition on these same subjects.8 to filing discovery responses, to the detriment of plaintiff. In the prior opinion, the Court also denied plaintiff's request for reimbursement for his expenses for an unproductive trip on a key subject to Textron's headquarters to review documents. While the Court did not find Textron's cumbersome system for document production to plaintiff's counsel sanctionable per se, that was largely because of counsel's failure to complain to the Court at the time, raising it only later in a laundry list of complaints. Nonetheless, Textron's protocol for document production, which denied plaintiff's counsel any direct review of files as kept in the ordinary business, required counsel to identify documents from a less than fully informative inventory of documents and restricted the production of documents to two at a time, seemed calculated to make the identification of relevant documents difficult at best. In the prior opinion, the Court also found that Textron had concealed its possession of an exemplar golf car from plaintiff, ignoring counsel's inquiry, again putting plaintiff's counsel to additional effort and expense, finally locating his own model golf car for testing. Plaintiff asked defendant on July 31, August 20, and September 24 whether Textron had a 1988 GX-440 in its possession or control. On September 25, defendant finally advised that it did not. On October 20, the corporate designee and expert, Mr. Powell, testified in deposition that he did not have a 1988 GX-440 but he was continuing to look. In a November 20 deposition session of Mr. Powell, after objections of defense counsel, Mr. Powell admitted that he had located a 1988 GX-440. On December 1, 1998, plaintiff's counsel asked that her expert have an opportunity to inspect and test the 1988 GX-440 in its possession, which request defendant denied, advising her to file a motion to compel. In the December, 1998 status report to the Court, plaintiff's counsel stated her intention to file a motion to extend the discovery schedule solely for the purpose of having the opportunity to inspect and test the restored 1988 GX- 440. (Ex. 2 to Paper No. 33). That motion was never filed. In a letter dated January 26, 1999, defense counsel informed plaintiff that "Textron also will not withdraw its objection to plaintiff's demand for an exemplar golf car under Request 22" and advised that "this too must be brought before the Court." (Ex. 8 to Paper No. 33). At the motions' hearing on March 26, 1999, plaintiff's counsel stated that she bought a 1988 GX-440 for $1,000. In its opposition, Textron defended its failure to advise plaintiff of the location of a 1988 GX-440 or its denial of plaintiff's access to that GX- 440 solely on plaintiff's failure to serve a "Rule 34 request for production of a 1988 GX-440." Given the repeated, written requests of plaintiff for a sample golf car and the broad language of the definition of "document" in plaintiff's request for production of documents which covered objects as well as written materials, Textron's position exalted form over substance and serves as another example of Textron's resistence to legitimate discovery requests. 11 1. Textron's Responses to Plaintiff's Requests for Production 9Counsel's letter provided, inter alia, that pursuant to corporate retention policy, "with the exception of settlement agreements and releases, which it keeps for seven years, Textron keeps no legal records in excess of three years . . . Therefore to the extent Textron has knowledge of [law] suits [filed more than seven years previously], it must rely on resources other than its corporate records. The chief resource in this respect [prior litigation] is the personal recollection of E-Z-Go Division's employee charged with coordinating litigation support . . . Gerald W. Powell.") (Paper No. 114, 2). 12 This Court has concluded, as plaintiff states, that "Textron did not perform an even minimally-adequate search for documents prior to Plaintiff's Motion for Sanctions." (Paper No. 69 at 6). At the Court's request, Textron described its efforts to locate documents and information requested by plaintiff. (Paper No. 14). Review of Textron's seven page single space letter showed half-hearted, scatter-shot inquiries prior to the court-ordered investigation and inquiry efforts -- often times only reacting to leads that plaintiff's counsel provided about Textron's prior litigation involving the same or similar golf cars or testing of the golf car type at issue. That letter did not dispel the Court's previously held impression that Textron's initial inquiry in response to written discovery requests (as well as Rule 30(b)(6) corporate designation) started and largely, if not entirely, stopped with an inquiry to Mr. Gerald W. Powell, a Textron reliability engineer and E-Z-Go's designee in golf car litigation since 1981 and with a review of the official corporate records of Textron.9 It appears that Textron did not even contact its own employees in other corporate departments, 13 such as the manager of Textron's Commercial and Media Relations, see infra, to respond to the document requests or requests attached to the corporate designee notice. While Textron did contact some prior counsel to locate documents in prior lawsuits (but not to prepare Mr. Powell to testify more knowledgeably on prior lawsuits), it appears that those contacts were in response to information that plaintiff's counsel provided, not the result of any systematic inquiry to fully answer the discovery. Plaintiff asserts that "documents in the possession, custody or control of a party's attorney or former attorney are within the party's 'control' for the purposes of Rule 34." (Paper No. 29 at 27). This Court agrees. Moreover, "[a] party is charged with knowledge of what its agents know or what is in the records available to it." 8A Wright, Miller & Marcus, Fed. Practice and Procedure: Civil 2d, § 2177. It is well established that 'control' under Fed. R. Civ. P. 34 is to be broadly construed so that a party may be obligated to produce documents requested even though it may not actually possess the documents. In re Folding Carton Antitrust Litigation, 76 F.R.D. 420, 422-23 (N.D. Ill. 1977). As long as the party has the legal right or ability to obtain the documents from another source on demand, that party is deemed to have 'control.' See Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984); The Resolution Trust Corp. v. Deloitte & Touche, 145 F.R.D. 108, 110 (D. 10The order outlined specific search efforts and required submission of affidavits on those search efforts. (Paper No. 57). Efforts were not limited to current Textron legal department employees or Textron's own files, but extended to all pertinent departments of Textron and to the files of agents of Textron, such as prior outside counsel and insurance companies. (Id.) 14 Colo. 1992); Camden Iron & Metal, Inc. v. Marubeni America Corp., 138 F.R.D. 438, 441 (D.N.J. 1991); Scott c. Arex, Inc., 124 F.R.D. 39, 41 (D. Conn. 1989); M.L.C., Inc. v. North American Philips Corp., 109 F.R.D. 134, 136 (S.D.N.Y 1986); Hanson v. Gartland Steamship Co., 34 F.R.D. 493, 496 (N.D. Ohio 1964) (explaining that the determination of whether documents in the possession of a party's attorney are under the control of the party depends on the origin of the documents) (citing with approval to 4 Moore's Federal Practice 2471 (2d ed. 1950)). It appears that Textron defined as documents within its "control" as whatever documents were within the files of Mr. Powell, longtime litigation point person for Textron and defined its "knowledge" as the personal knowledge of Mr. Powell. The lassitude of the defendant is unacceptable. However, another and perhaps greater proof of the inadequacy of the initial inquiry was the productivity of the additional efforts mandated by the Court which conformed with the demands of the rules and case law on the level of inquiry and the broad definition of "control" under Rule 34.10 First, the sheer volume of documents produced after plaintiff's motions and court order compared to that produced in response to discovery demands under the rules 15 demonstrates the inadequacy of Textron's initial efforts. Textron initially produced a single page in response to plaintiff's document request. (Paper No. 56, 2). After plaintiff served motions to compel and filed one such motion with the Court (which was granted), Textron produced a total of 470 pages of documents. (Paper No. 69, Ex. G at ¶3). After plaintiff filed his Motion for Sanctions, Textron produced 20 videotapes and more than 2,900 additional pages of documents that are responsive to the discovery requests. (Id.) Given the results of court-mandated efforts, it is clear that these documents were in the control of Textron and that a reasonable search would have located them. Second, a review of Textron's responses to certain of plaintiff's specific discovery requests likewise demonstrates the lack of an adequate inquiry. For example, plaintiff had propounded a request for "[a]ll advertisements and promotional materials that concern or refer to the GX-440, X-440, GX-444, and X-444 for model years 1978 through 1990." (Request No. 23). Such documents would obviously be relevant to this case, as they would include, for example, photos and/or descriptions of reasonably anticipated uses of the golf cars, such as on grassy slopes similar to the one where plaintiff's accident occurred. In response, Textron produced a single brochure. (Paper No. 69, Ex. G at ¶3). When plaintiff moved to compel further production on the basis that it was inconceivable 16 that Textron had only used a single brochure to advertise and promote its golf cars, Textron responded curiously that: "[a]n inspection of plaintiff's own exhibits demonstrates that Textron has already produced all such materials concerning this discontinued model line." (Paper No. 69, Ex. J at 14). After the Court-ordered investigation, Textron produced 229 pages of advertising and promotional materials, (Paper No. 69, Ex. G at ¶4), including photos of the golf cars on grassy slopes much like that on which the accident occurred here. Notably, the Affidavit of Textron's counsel states: Produced to plaintiff's counsel contemporaneously with the filing of this Affidavit are true and correct color copies of all documents responsive to Plaintiff's Document Request No. 23. I obtained the originals on Thursday, May 27th, from Ron Skenes, E-Z-Go's Manager of Commercial & Media Relations. Mr. Skenes advised me that he is the person in the Sales & Marketing Department most knowledgeable about historical advertising of E-Z-Go products. Mr. Skenes stated that he is the only person in the Sales & Marketing Department that keeps a file of old product advertising and promotional materials for the Marathon line of golf cars. However, the oldest material in his file goes back only as far as 1980. Gendron Aff. at ¶ 44, (Paper No. 63, Ex. 3). No explanation is provided for why Mr. Skenes, the Manager of Textron's Commercial and Media Relations and thus an obvious person to ask to properly respond to a discovery request for advertising and promotional materials (or a corporate deposition notice covering advertising or promotional 17 areas), was not contacted when the request was served. Such defense approach would have resulted in concealment of these relevant documents without the persistence of plaintiff's counsel. Similarly, plaintiff had propounded a request for "[a]ll documents that reflect, refer or relate to any tests performed on or concerning the GX-440, X-440, GX-444, and X-444 that pertain to stability, safety, rollovers, and warning labels." (Request No. 16). Textron's first response was to object for a host of reasons, including that tests on golf cars other than the GX-440 are not relevant evidence. (Paper No. 69, Ex. J at 4-5). Plaintiff filed a motion to compel citing the considerable authority for discovery of tests on similar models in a products liability action. In response, Textron claimed that plaintiff's statement in his motion that Textron refused to produce the test documents pertaining to the X-440, GX-444, and X-444 was "a half-cocked statement" and that "plaintiff may not like the amount of Textron's document production, but she (sic) has all of the requested documents that Textron has." (Paper No. 69, Ex. J at 6-7). But, in response to this Court's Order, Textron has now produced a list of thousands of tests performed by its E-Z-Go Division (Paper No. 69, Ex. K), many appearing to be relevant such as "Golf Car Slope Limits" and "Spring Rate Reduction and Effects on Rolls." (Paper No. 69, Ex. K at 39). These additional tests, of course, were produced after much, if not 11The objective standard requires that the a signing the discovery documents under Rule 26(g)(2) make only a reasonable inquiry into the facts of the case. Counsel need not conduct an exhaustive investigation, but only one that is reasonable under the circumstances. Relevant circumstances may include: (1) the number and complexity of the issues; (2) the location, nature, number and availability of potentially relevant witnesses or documents; (3) the extent of past working relationships between the attorney and the client, particularly in related or similar litigation; and (4) the time available to conduct an investigation." Dixon v. Certainteed Corp., 164 F.R.D. 685, 691 (D. Kan. 1996); see also 6 Moore's Federal Practice, § 26.154[2][a]. Here, the Court ordered the detailed, documented search it did in part due to its loss of confidence in the good faith efforts of defendant to that date. 18 all, of the discovery was complete, indeed after the discovery deadline. Rule 26(g) of the Federal Rules of Procedure defines the duty of counsel in responding to discovery requests. That is, counsel must make "a reasonable effort to assure that the client has provided all the information and documents responsive to the discovery demand." Advisory Committee Notes to 1983 Amendments to Rule 26(g). "What is reasonable is a matter for the Court to decide on the totality of the circumstances." Id.11 "[U]nder Rule 26(g)(2) . . . [the subject of the inquiry] is the thoroughness, accuracy and honesty (as far as counsel can reasonably tell) of the responses and the process through which they have been assembled." (G. Joseph § 42(c), p. 541). In this case, it is clear that defendant's counsel did not make a reasonable effort under the Rule to assure that its client had complied fully with plaintiff's discovery requests and obtained all documents within its possession, custody and control. 12The American Bar Association has adopted Civil Discovery Standards which articulate, with helpful specificity, the considerable duty of inquiry and preparation of a lawyer receiving a Fed. R. Civ. P. 30(b)(6) deposition notice, based on existing case law. The standards encourage communication between counsel to ensure that the deposing party's areas of inquiry can be addressed. That standard provides in relevant part as follows: 19. Designations by an Organization of Someone to Testify on Its Behalf. * * * b. Designating the Best Person to Testify for the Organization. An entity, association or other organization responding to a deposition notice or subpoena should make a diligent inquiry to determine what individual(s) is (are) best suited to testify. c. More Than One Person May Be Necessary. When it appears 19 2. Textron's Identification of Designee for Corporate Deposition Fed. R. Civ. P. 30(b)(6) defines the duty of a corporation, like Textron, when served with a notice of deposition outlining areas of inquiry. The Rule provides that an organization named as a deponent "shall designate one or more officers, directors or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify . . . a person so designated shall testify as to matters known or reasonably available to the organization." Id. Thus, a corporation "should make a diligent inquiry to determine what individual(s) is (are) best suited to testify." Civil Discovery Standards (American Bar Association, Section of Litigation, August 1999) ("ABA Standards").12 that more than one individual should be designated to testify without duplication of the designated area(s) of inquiry, each such individual should be identified, a reasonable period of time before the date of the deposition, as a designated witness along with a description of the area(s) to which he or she will testify. d. Reasonable Interpretation Is Required. Both in preparing and in responding to a notice or subpoena to an entity, association or other organization, a party or witness is expected to interpret the designated area(s) of inquiry in a reasonable manner consistent with the entity's business and operations. e. If in Doubt, Clarification Is Appropriate. A responding party or witness that is unclear about the meaning and intent of any designated area of inquiry should communicate in a timely manner with the requesting party to clarify the matter so that the deposition may go forward as scheduled. f. Duty to Prepare the Witness. Counsel for the entity should prepare the designated witness to be able to provide meaningful information about any designated area(s) of inquiry. 20 Moreover, a corporation served with a Rule 30(b)(6) notice of deposition has a duty to "produce such number of persons as will satisfy the request [and] more importantly, prepare them so that they may give complete, knowledgeable and binding answers on behalf of the corporation." Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989). "Counsel for the entity should prepare the designated witness to be able to provide meaningful information about any designated area(s) of inquiry." ABA Standards, 19(f) (Duty to Prepare the Witness). The individual(s) so deposed are required to testify to the knowledge of the corporation, not the individual. United States v. J.M. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996). See also SEC v. Morelli, 143 F.R.D. 42, 44 (S.D.N.Y. 1992) (holding 21 that Rule 30(b)(6) designees need not have first-hand knowledge of the events in question, but if designated must be adequately prepared to field and answer such questions). It necessarily follows that the corporation has a duty "to prepare the designees so that they may give knowledgeable and binding answers for the corporation" and that this duty "goes beyond matters personally known to the designee or to matters in which that designee was personally involved." Taylor, 166 F.R.D. at 361. Upon notification of a deposition, the corporation has an obligation to investigate and identify and if necessary prepare a designee for each listed subject area and produce that designee as noticed. Here, plaintiff made several requests in the form of interrogatories, requests for production of documents, a Rule 30(b)(6) corporate deposition notice and a subpoena duces tecum, for information relating to the following: (1) testing of the golf car (Exs. B, Request No. 6, and C, Interrogatory No. 7, to Paper No.29); (2) all tort actions against Textron involving rollovers and complaints of instability of the golf car (Exhibit B to Paper No. 52); and (3) the design and testing of the GX-440 and any reports or investigations of accidents involving rollovers or stability problems (Ex. V to Paper No. 29). Nevertheless, when questioned in these areas, specifically about testing revealed in other litigation 13Mr. Powell made several statements in deposition, indicating there were documents, but claiming no knowledge of how to access them. For example: Q So I take it that the E-Z-Go Division doesn't keep records in accordance with model years so it's easy to get your hands on? A Not according to model years. They do keep records, they just don't keep records the way people ask for records, if you understand. There are records there, I just don't know how to find them. I'm sure there are records there, I don't represent to you that there are, I feel like there may be some more things but I don't know how to find them. 22 against E-Z-Go, the designee denied any knowledge of the testing or any recollection of the names of the attorneys involved in other cases. (Ex. S to Paper No. 29). Mr. Powell testified to having served as an expert witness in at least 21 of the 25 previous cases. (Paper No. 29 at 28). Nevertheless, Textron made no systematic effort to obtain or provide any information from those cases; curiously only following up on cases plaintiff was able to identify through his own independent efforts. Textron went so far as to claim, through its designee, that it did not know the names of its former attorneys. (Id.). Defense counsel also limited the witness' answers to his "personal knowledge." (Ex. S to Paper No. 29). But perhaps most troubling was Textron's indifferent attitude to areas that the designee could not cover. A party cannot take a laissez faire approach to the inquiry. That is, producing a designee and seeing what he has to say or what he can cover. A party does not meet its obligations under Rule 26 or 30(b)(6) by figuratively "throwing up its hands in a gesture of helplessness" as Mr. Powell, the corporate designee did in this case.13 If the originally (Paper No. 29, Ex. S, 44-45). 23 designated spokesman for the corporation lacks knowledge in the identified areas of inquiry, that does not become the inquiring party's problem, but demonstrates the responding party's failure of duty. As the ABA Standards state: More Than One Person May Be Necessary. When it appears that more than one individual should be designated to testify without duplication on the designated area(s) of inquiry, each such individual should be identified, a reasonable period of time before the date of the deposition, as a designated witness along with a description of the area(s) to which he or she will testify. 19(c). In light of plaintiff's considerable success in this motion, the Court will grant 75% of the attorney time and expenses related to the motion. IV. PLAINTIFF'S MOTION TO COMPEL The defendant's responses to plaintiff's document Request Nos. 16, 17, 18, 22 and 23 were not substantially justified. To the contrary, the Court determined that Textron had failed in its duty as prescribed under Rule 26(g). May 20, 1999 Mem. Op., 18-24. The Advisory Committee Notes explain that "Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26- 37. In addition, Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision 24 provides a deterrent to . . . evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection . . ." Fed. R. Civ. P. 26(g), Advisory Committee Notes to the 1983 Amendments. Under Rule 26(g), a "signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand." (Id.) As discussed supra, there can be no more powerful proof of the inadequacy of the initial inquiry here than the comparison of the type and quantity of documents produced initially and those produced after the court ordered investigation, inquiry and report to the Court. This Court will not attempt to determine whether the fault lay with the client or with in house counsel or outside counsel. In any event, it should have been clear to outside counsel that the efforts were wanting given the paucity of documents produced. For example, in response to plaintiff's Request No. 16, only one document was produced in response to a request for all test results pertaining to the stability, safety rollovers and warning labels of the subject (and similar) model(s) of golf car. Or in response to Request No. 23 where only a single document was produced in response to a request for all advertisements or promotional materials regarding the subject (or similar) models of golf car for a 12 year period. 25 Accordingly, the Court finds that Textron's response to document requests violated its duty under Rule 26(g), was not substantially justified, and that therefore, an award of expenses is just. Fed. R. Civ. P. 37(a)(4)(A). Because the Court granted the motion as to five of the six contested requests (or 83% of the requests), the Court grants that percentage of the attorney time and other expenses related to this motion. See Fed. R. Civ. P. 37(a)(4). V. AN AWARD OF REASONABLE ATTORNEYS' FEES AND COSTS IS THE APPROPRIATE SANCTION In an attempt to ward off any sanction, Textron represents to this Court that its counsel spent at least 154.6 hours on document collection and investigation efforts to comply with the Court's May 22, 1999 Order, at a cost to Textron of $23,260 (Paper No. 63 at 7), and argues that "it has now cured (at considerable expense) all deficiencies found by the Court and that an award of sanctions could, under the circumstances, be unjust." (Id. at 5). Such an interpretation of the rules would encourage sharp practices and dilatory responses to legitimate discovery demands. If the only sanction for failing to comply with the discovery rules is having to comply with the discovery rules if you are caught, the diligent are punished and the less than diligent, rewarded. Indeed, Rule 37 itself defeats such an interpretation, as it provides, inter alia, that the Court shall award the moving party fees if the discovery is 26 provided by ruling or simply after the motion is filed. Fed. R. Civ. P. 37(a)(4)(A). This is clearly not a situation where justice should be tempered by mercy, given the comparative resources of the plaintiff and defendant, and the inescapable conclusion that Textron's stonewalling on discovery played on that disparity. Sanctions are to be awarded "against parties or persons unjustifiably resisting discovery." Advisory Committee Notes to the 1970 Amendments to Fed. R. Civ. P. 37. Rule 37 sanctions must be applied diligently both "to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent." Nat'l Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976). Likewise, "Rule 26(g) is designed to curb discovery abuse by explicitly encouraging imposition of sanctions." Advisory Committee Notes to 1983 Amendments to Fed. R. Civ. P. 26. However, the Court declines to award sanctions beyond those provided in Rules 37(a) and 26(g) because this Court has stopped short of finding that Textron or its counsel acted with bad faith, and because Textron has not directly violated a court order, as it had in the case of Winters v. Textron, Inc., 187 F.R.D. 518 (M.D. Pa. 14Where an order of court is violated, Fed. R. Civ. P. 37(b) expressly provides greater sanctions, including default judgment. This Court has stopped short of finding bad faith on the part of Textron or its counsel. Having said this, this Court nonetheless shares the Winters court's perception of Textron as "indifferent to its responsibility under the [discovery] law" and its discovery posture as suggestive of "arrogance." Winters v. Textron, Inc., 187 F.R.D. at 521. Nevertheless, without a finding of bad faith or in the absence of violation of a court order, the remedy for Textron's Rule 37(a) violations are imposition of expenses and the remedy for Textron's Rule 26(g) violations are an "appropriate sanction," but certainly less than a finding of liability. Moreover, when ordered to conduct an effective Rule 26(g) investigation, Textron did a creditable job, producing considerable documents, on a relatively short time frame. 15The Fourth Circuit has established four factors that a court should consider when ordering a judgment by default against a party that has failed to comply with discovery. These factors are: (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the 27 1999).14 In cases of bad faith, courts have ordinarily found direct (and often repeated) violation of court orders. See Mutual Fed. Savings & Loan Assoc. v. Richards & Assoc., Inc., 872 F.2d 88, 92 (4th Cir. 1989); see also Melendez v. Illinois Tel. Co., 79 F.3d 661, 671-72 (7th Cir. 1996). Significantly, none of the violations that plaintiff identified in his three discovery motions were of court orders. Rather, plaintiff complained of and the Court found that Textron had engaged in a pattern of conduct in discovery violative of the letter and the spirit of the discovery rules. In the absence of a bad faith finding, the Court is not justified in awarding sanctions beyond the relief afforded by Rule 37(a)(4)(A) and Rule 26(g), and certainly not entry of default judgment, as plaintiff repeatedly requested.15 Moreover, with the exception of the Court's finding of particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions. See Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 503-504 (4th Cir. 1977). 28 a Rule 26(g) violation, for which imposition of an "appropriate sanction" is permitted (in addition to, or in lieu of an award of expenses), the individual discovery abuses represent violations of Rule 37(a)(4)(A), as Textron did not violate any order of the Court. The remedy available to the Court is thus limited to an award of the "reasonable expenses incurred in making the motion, including attorneys' fees." Fed. R. Civ. P. 37(a)(4)(A). However, the fact that the Court did not find bad faith does not minimize the wrongheadedness of the conduct of Textron and its counsel or suggest lenience in the imposition of the Rule-delineated sanctions. The Court recognizes there is an unquantifiable but real prejudice to plaintiff in the motions practice that Textron's conduct necessitated and the litigation disadvantages of the delayed and staged receipt of discovery that was its consequence. For example, depositions are taken without the benefit of later received discovery. That later received discovery might have eliminated whole areas of inquiry or suggested entirely different questioning at deposition. In that situation, a lawyer is faced with the dilemma of whether to spend the time and expense to seek another deposition session or "to make do." Or, belatedly received information may impact an expert's opinion, requiring additional analysis and a 16According to Textron's Company Profile located at its website, the company enjoys revenues of $11.6 billion. See Company Profile (visited 2/23/2000) <http://www.textron.com/ profile/>. The revenues of the industrial segment of the company, which includes the Golf, Turf Care and Specialty Products division, comprises 39% of the company's total revenues. See id. 29 further report and even a further deposition. Textron argues that its (costly) compliance with the Court's May 20 Order is "punishment" enough. The Court disagrees. A significant sanction award is crucial to vindicate the important principles of fair play in the largely private world of civil discovery. In complex litigation such as this, cases are shaped, if not won or lost, in the discovery phase. The rules of discovery must necessarily be largely self-enforcing. The integrity of the discovery process rests on the faithfulness of parties and counsel to the rules -- both the spirit and the letter. "[T]he discovery provisions of the Federal Rules are meant to function without the need for constant judicial intervention and . . . those Rules rely on the honesty and good faith of counsel in dealing with adversaries." Hopei Garments (Hong Kong), Ltd. v. Oslo Trading Co., 1988 WL 25139 (S.D.N.Y., March 8, 1988). The rules of procedure (and attorneys' duty to adhere to them) apply with equal force to decisions made in private discussions behind closed doors in a client's office on how much effort to expend to answer the opposing party's discovery, as to attorney conduct in the bright light of open court. Given the wealth and resources of Textron,16 any sanction award is obviously more 30 symbolic than retributive. It is intended as a reminder to counsel (both inside and outside) that their duty to the integrity of the judicial process in their discovery conduct trumps their desire to achieve some short run advantage for their clients through sharp practices and close readings of the rules. "If the primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse." Advisory Committee Notes to 1983 Amendments to Fed. R. Civ. P. 26(g). Having rejected Textron's argument that its remedial efforts were a sufficient sanction, the Court will consider the appropriate amount of the sanctions award. Rule 37 is straight-forward and directive: Courts "shall . . . require . . . the party or attorney or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees . . . unless . . . other circumstances make an award of expenses unjust." Similarly, Rule 26(g) provides that "[i]f without substantial justification a certification is made in violation of the rule, the court . . . shall impose on the [attorney], the party . . . or both, an appropriate sanction which may include an order to pay the amount of reasonable expenses incurred because of the violation, including a reasonable attorney's fee." Certainly plaintiff has the burden of proof of these 17The Fourth Circuit has rejected the argument that "sanctions based in whole or in part on attorneys' fees require the same procedures of discovery, briefing, and argument allowed in attorney's fees cases." In re Kunstler, 914 F.2d 505, 523 (4th Cir. 1990). Accordingly, it is not surprising that while the Fourth Circuit has mandated the use of the 12 factors enunciated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-718 (5th Cir. 1974), in all attorney's fees cases, Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 (4th Cir. 1978). Use of this complex analysis has not been applied to attorneys' fees determinations in the sanctions context. Moreover, the process afforded Textron comports with indeed Kunstler's exceeding minimal demands. The Court held two hearings and permitted submission of briefs and affidavits by defendant, to counter the plaintiff's affidavits on the appropriate hourly rate. The Court also invited defendant's comment on the plaintiff's counsel's contemporaneous timesheets. 31 reasonable expenses incurred in making the motion or, caused by the violation. However, this Circuit has not adopted any specific analytical approach to the determination of the amount of "reasonable expenses" under either rule.17 Judge Kaufman of this Court ruled that Rule 11 analysis is applicable to the imposition of expenses for a violation of Rule 37(d) because "Rule 37, much like Rule 11, is designed to deter future misconduct during discovery." Gordon v. New England, 168 F.R.D. 178, 180 (D.Md. 1996). Accord Advisory Committee Notes to 1983 Amendments to Fed. R. Civ. P. 26(g) ("Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions.") This Court agrees. "In calculating the sanction, a district court should bear in mind that the purposes of Rule 11 include 'compensating the victims of the Rule 11 violation, as well as punishing present litigation abuse, streamlining court dockets and facilitating court management.'" In re Kunstler, 914 F.2d 32 505, 522 (4th Cir. 1990). Accord Wouters v. Martin Co., Fla., 9 F.3d 924, 933 (11th Cir. 1993). ("Sanctions allowed under Rule 37 are intended to 1) compensate the court and other parties for the added expense caused by discovery abuses, 2) compel discovery, 3) deter others from engaging in similar conduct, and 4) penalize the offending party or attorney.") The amount of a monetary sanction, however, should always reflect the primary purpose of Rule 11 -- deterrence of future litigation abuse. In re Kunstler, 914 F.2d at 522-23. Similarly, Rule 26(g) was added by amendment in 1983 to provide "sanctions along the lines of Rule 11" for certifications in violation of the rule. 8A Wright, Miller & Marcus, Fed. Practice and Procedure: Civil 2d § 2282. The Fourth Circuit has enumerated four factors for the district court's consideration in determining the amount of an attorney's fee award under Rule 11: "(1) the reasonableness of the opposing party's attorneys' fees; (2) the minimum to deter; (3) the ability to pay; (4) factors related to the severity of the Rule 11 violation." In re Kunstler, 914 F.2d at 522-23. Accord Brubaker v. City of Richmond, 943 F.2d 1363, 1374 (4th Cir. 1991). The reasonableness of the attorneys' fees is to be subject to an "independent" analysis by the court, id. and necessarily requires a review of contemporaneous timesheets to insure that the time expended in the motion was not excessive to the task and (2) a consideration of the hourly rate 33 charged in light of fees charged in the legal community for services of like kind and quality. Based on its independent analysis, this Court has concluded that the attorneys' fees and other expenses requested are, in the main, justifiable. As to the time expended, while the Court invited comment, Textron did not identified any work as excessive or duplicative. While the total number of hours -- 260.4 -- and the attorneys' fees for those hours -- $48,527 -- are staggering, review of the contemporaneous timesheets does not reveal any evident inefficiency or litigation overkill. Plaintiff's motions dealt with numerous disputes over a long discovery period. The complexity (and cost) of plaintiff's motions' effort could be seen as a result of Textron's obduracy on several discovery fronts. While multiple attorneys were engaged in the plaintiff's discovery motion efforts, the involvement of different lawyers of different experience levels is reasonable. Ms. Willis as a recent law graduate did most of the necessary research and initial drafting. Ms. McKee as the more experienced, lead counsel did the final drafting and engaged in most of the direct communications with the Court and counsel. It is clear that Ms. McKee consulted in a limited fashion with Mr. Goldstein, a highly experienced senior member of the firm, as would be expected in a discovery dispute of this sensitivity, complexity and contentiousness. Thus, this Court did not find any impermissible 18While these Rules and Guidelines by their terms do not apply to attorneys' fees requests in discovery disputes, the Court utilized them here in light of the size of the attorneys' fee request. By this substantial sanction award, the Court intends to discourage discovery misconduct, not encourage the filing of discovery motions through the perception that a windfall award is likely. In accordance with Rule 2(c)-(e) of the Rules and Guidelines (which allow compensation for only one attorney's time for client or third party conferences or intra-office conferences or attendance at hearings), the Court reduced the attorneys' time by 8.80 hours as to the Motion for Sanctions, by .40 hours as to the Motion to Compel, and by .20 hours as to the Motion For Determination of Sufficiency of Answers and Objections to Plaintiff's Requests for Admission. 34 "overstaffing . . . [or] overresearching." Id. The plaintiff properly mitigated. The Court also analyzed the work for which plaintiff's counsel sought fees and determined that payment was sought only for "attorney time . . . in response to that which has been sanctioned." Id. Finally, the Court reviewed the timesheets in light of the Rules and Guidelines for Determining Lodestar Attorneys' Fees in Civil Rights Discrimination Cases of this Court (Appendix B to the Local Rules of the District of Maryland), and reduced the attorney time in accordance with Rule 2(c)-(e), allowing recovery for only one attorney's time in client and third party conferences, hearings and intra-office conferences.18 As to the hourly rate, Textron vigorously challenges the rates sought by plaintiff: $240 an hour for Mr. Freeman admitted to the bar in 1986; $235 an hour for Ms. McKee admitted to the bar in 1985; $155 an hour for Ms. Willis admitted to the bar in 1995; $265 an hour for Mr. Goldstein admitted to the bar in 1973; and $75 an hour for 19Textron suggests that if plaintiff's counsel took the case on a contingent fee basis, counsel is entitled to a lesser hourly rate than requested. However, Textron has produced no case law that the fee arrangement that counsel has with its client has any bearing on entitlement to attorneys' fees under Rule 37 or Rule 26(g). Such a proposition would create the anomalous (and intolerable) situation of relieving a defendant of any penalty (or greatly reducing that penalty) for discovery abuse where representation was on a pro bono or contingency basis or was by a government lawyer. Courts have rejected such an approach. See, e.g., USA v. Big D Enterprises, Inc., 184 F.3d 924, 936 (8th Cir. 1999) (Where an attorneys' fee award was made for the time expended by government lawyers in a discovery dispute, the Court held that "we have long recognized that the hourly rate of the local legal community may serve as a benchmark for determining the amount of attorneys' fees to be imposed upon a party.") 20For example, Mr. Freeman's rate of $240 as a 1986 law school graduate was higher than the $210 rate charged for the services of an unnamed junior litigation partner in complex litigation at Shapiro & Olander. Or, Mr. Freeman's rate was the same as the high end of that charged by Gerard Martin, a 1981 law school graduate at Martin, Snyder & Bernstein. But overall, there was considerable support in the five affidavits for all the rates charged, including Mr. Freeman's. 35 paralegals.19 Their affidavits demonstrate their admirable educational achievements and extensive experience. Their abilities are evident in the work in this case. Plaintiff has provided five affidavits from lawyers in the Baltimore legal community attesting to the customary rates charged for the same or similarly legal services in complex litigation. The rates sought here for plaintiff's four lawyers are within, with one or two exceptions, the rates attested to in all plaintiff's affidavits.20 While not by their terms applicable to attorneys' fees petitions in discovery disputes, the Rules and Guidelines for Determining Lodestar Attorneys' Fees in Civil Rights and Discrimination Cases of this Court (Appendix B to Local Rules of the District of Maryland) provide a presumptively reasonable range of 21The guidelines provide the following presumptively reasonable hourly rates: $135-$170 - attorneys with less than 8 years experience $190-$225 - attorneys with greater than 8 years experience $65 - paralegals and law clerks. 36 hourly rates in civil rights and discrimination cases.21 The rates for Messrs. Goldstein, Freeman and Ms. McKee exceed the highest presumptively reasonable fee for lawyers with greater than eight years experience which is $225, although it is acknowledged that they each had many more years legal experience, than eight. Textron, on the other hand, has presented three affidavits of lawyers in the Baltimore legal community attesting to the customary rates charged for product liability cases or similarly complex litigation. These affidavits attest to rates primarily, if not exclusively, on the defense side, and to lawyers employed by insurance companies or large corporations. These rates for product liability defense ranged from $135 to $170 for lawyers with considerably more than eight years' experience. Finally, at the hearing, Textron in-house counsel represented that Textron pays counsel in this case $150 an hour. Messrs. Goss and Gendron, defense counsel and members of the bar from 1981 and 1986 respectively, acknowledged this, but also stated that their hourly rate for other clients in other matters to be $200 an hour. Having considered all the above information on the customary hourly rate for attorneys of the experience levels of the 22The expenses consist of computer research, courier services and copying charges. The amount of computer research ($1,127.00), courier charges ($23.20), and photocopy charges ($1,040.00) are modest, in light of the extensive briefing. As to the photocopies, counsel billed the copying at the Rules and Guideline rate of $.15 per page. 37 plaintiff's, the Court finds the following hourly rates for plaintiff's counsel to be reasonable: $265 for Mr. Goldstein; $225 for Mr. Freeman and Ms. McKee, $150 for Ms. Willis and $65 for the paralegals. The Court has lowered the hourly rate of some of the plaintiff's attorneys and both paralegals in light of the lower, presumptively reasonable range of fees in this Court's Rules and Guidelines, some of the lower rates submitted by plaintiff as they relate particularly to Mr. Freeman's hourly rate and most prominently the lower rates in Textron's affidavits, but recognizing, as plaintiff argues, that the significantly lower hourly rates of the product liability defense bar reflects the relative certainty of payment, the desirability of the client and the anticipated volume of work. The other expenses appear reasonable in light of the Court's independent review of the documentation and in the absence of Textron's identification of any particular objectionable item of expenses.22 In reaching the amount of $37,258.39 in reasonable attorneys' fees and expenses, the Court has applied the "success" rate in each motion to the hours documented for each motion and multiplied by the 23As to the motion to compel, Ms. McKee's hours totaled 6.10 at the rate of $225.00 per hour for a total of $1,372.50. Ms. Willis' hours totaled 23.10 at the rate of $150.00 per hour for a total of $3,465.00. Ms. Fuller's hours totaled .20 at the rate of $65.00 per hour for a total of $13.00. As to the motion for sanctions, Ms. McKee's hours of 107.10 totaled $24,097.50. Ms. Willis' hours of 60.00 totaled $9,000.00. Mr. Goldstein's hours totaled .30 at the rate of $265.00 per hour for a total of $79.50. Mr. Freeman's hours totaled 1.00 at the rate of $225.00 per hour for a total of $225.00. Mr. Johnson's hours totaled 11.60 at the rate of $65.00 per hour for a total of $754.00. Ms. Fuller's hours of 8.30 totaled $539.50. As to the motion to determine sufficiency of answers and objections to requests for admissions, Ms. McKee's hours of 5.70 totaled $1,282.50. Ms. Willis' hours of 26.80 totaled $4,020.00. Mr. Freeman's hours of .20 totaled $45.00. 38 hourly rate.23 See Fed. R. Civ. P. 37(a)(4). The Kunstler analysis does not, however, stop with the reasonableness inquiry. The next factor in determining the amount of the sanction is the "minimum to deter." Id. As discussed earlier, this Court has concluded that the goal of deterrence under Rules 26(g) and 37 can only be achieved by an award of all reasonable attorneys' fees and expenses associated with the three motions of plaintiff that Textron's conduct necessitated. A lesser amount would only encourage a repetition of this conduct by Textron or other major corporations. As to the third factor of ability to pay, not surprisingly, Textron did not raise its inability to pay as a mitigating factor. Given Textron's wealth and revenue, see supra, this factor does not militate for a lesser monetary sanction than determined above as reasonable expenses, based on actual time expended and reasonable hourly rates. Similarly, defense counsel did not suggest any 24While the Court would have preferred to award the expenses against the firm and its client, the language of Rules 37 and 26 does not permit that. Unlike Fed. R. Civ. P. 11 which specifically authorizes the imposition of the sanction on the law firm, in addition to or in lieu of the individual lawyer, neither Rule 37 nor Rule 26 contains such a specific authorization. In light of that fact and the precedent of Pavelic & Leflore v. Marvel Entertainment Group, 493 U.S. 120 (1989), this Court is constrained to award the expenses against the specific lawyers representing Textron and/or Textron itself. 39 inability to pay if a sanction was awarded against them personally or their firm. Goodell, DeVries, Leech and Gray is an established and highly successful law firm and Messrs. Goss and Gendron are partners at that firm. Finally, consideration of the severity of the violations as discussed supra, suggests no deviation from the reasonable expenses previously determined. While there was no direct or repeated violation of court orders, there was the pattern of delay, obsfucation and half-hearted responses to discovery which was disabling to plaintiff's prosecution of his case. VII. CONCLUSION For all these reasons, the Court imposes a monetary sanction of $37,258.39 jointly and severally against Andrew Gendron of Goodell, DeVries, Leech and Gray and Textron, Inc.24 Mr. Thomas M. Goss is jointly and severally liable with Mr. Gendron and Textron for $4,206.24 of that $37,258.39, which are the fees and costs associated with the motion to determine the sufficiency of answers and objections to requests for admission. 40 Where, as here, a party has in-house counsel, the approach to discovery is rarely left entirely to outside counsel. Often defense strategy is largely dictated by the client's inside legal team. At a minimum, defense strategy is the product of the consensus of inside and outside counsel. Moreover, Mr. Buechele of Textron's legal department signed the responses to the plaintiff's interrogatories and participated in hearings on the telephone and in open court. Also, defense counsel suggested that the document production protocol was dictated by Textron. The Court will not attempt to determine how much fault lies with Textron and its inside counsel and how much fault lies with outside counsel. Accordingly, the award is joint and several. The Court takes no pleasure in the imposition of this considerable expense award against well known members of the bar and members of a respected Baltimore law firm. However, the Court cannot countenance the "business as usual" approach of counsel and client to the rules of fair play that our federal rules embody. Counsel, or officers of the court owe a duty to the integrity of the process, just as surely as they owe a duty of zealous representation to their clients. Many fine defense counsel have accommodated their duty to the Court without sacrifice of their client's interest in a vigorous defense. A separate Order will issue. 41 Date: Susan K. Gauvey United States Magistrate Judge 42

Excessive Use of Force Claims in Maryland

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND FREDERICK P. HENRY * * v. * Civil No. JFM-04-979 * ROBERT PURNELL * ***** OPINION Frederick Henry has brought this action against Robert Purnell, a Somerset County Deputy Sheriff, asserting excessive force claims under the Fourth Amendment and Articles 24 and 26 of the Maryland Declaration of Rights. Discovery has been completed, and Purnell has moved for summary judgment. The motion will be denied. I. On October 9, 2003, an arrest warrant was issued for Henry for failing to obey a court order to either pay his child support arrearage or report to a detention center to serve a jail sentence for failure to pay. On October 20, Purnell went to Henry’s last known address in Eden, Maryland, in an attempt to arrest him. The officer discovered Henry at that address but Henry avoided arrest by lying about his identity. Soon thereafter, Purnell learned that the man he had talked to was in fact Henry. Three days later, Purnell noticed Henry in a passing truck, followed him, and pulled into a driveway alongside the truck. Purnell ordered Henry out of the truck. Henry complied but fled before he could be handcuffed. Purnell claims Henry pushed him in the course of escaping; Henry denies that occurred. In any event, Purnell pulled out a Glock .40 caliber handgun and shot the fleeing Henry in the elbow. Henry stopped running and was arrested. The parties have stipulated that Purnell did not intend to shoot Henry with his handgun. 2 Rather, he intended to unholster and discharge his Taser, a non-lethal device that immobilizes a suspect via an electro-muscular disruption. The Taser was holstered on Purnell’s right side, just below his holstered handgun. Purnell has testified on deposition that he reached for the Taser because he felt endangered by Henry’s actions. He asserts that he thought Henry might be running to get a weapon. Purnell did not realize he had fired the handgun until after the weapon discharged. He immediately told Henry and another witness at the scene that he had not meant to shoot Henry and that he had grabbed the wrong weapon. II. Purnell first argues that Henry’s claims are not viable either under the Fourth Amendment or the Maryland Declaration of Rights because no seizure occurred. The Supreme Court has made it clear that a seizure under the Fourth Amendment requires “an intentional acquisition of physical control.” Brower v. County of Inyo, 489 U.S. 593, 596 (1989). As the Court noted, an element of willfulness “is implicit in the word ‘seizure,’ which can hardly be applied to an unknowing act.” Id. It has therefore been held that there is no seizure when a police officer unintentionally discharges a weapon, causing injury or death. See, e.g., Glasco v. Ballard, 768 F. Supp. 176, 180 (E.D. Va. 1991); Troublefield v. City of Harrisburg, 789 F. Supp. 160, 166 (M.D. Pa.), aff’d 980 F.2d 724 (3d Cir. 1992). See also Campbell v. White, 916 F.2d 421, 423 (7th Cir. 1990) (no seizure where state trooper accidentally collided with motorcyclist he had been chasing). The present case is substantially different from Glasco and Troublefield in that although 1This case is also unlike the hypothetical posed in Brower, that subsequently came to real life in Campbell and County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998), concerning an accident that occurs when a police car pursues a fleeing suspect with the intent to stop him by a show of authority. In that situation, the police officer does not intend to acquire physical control over the suspect by colliding with the suspect’s vehicle (or by causing the suspect’s vehicle to crash), and thus there is no Fourth Amendment seizure. Here, in contrast, Purnell did intend to stop Henry by shooting him with a projectile. 3 Purnell did not intend to fire his handgun, he did intend to fire his Taser.1 Purnell argues, however, that this distinction is legally insignificant. He cites language in Brower that “a Fourth Amendment seizure occur[s] . . . only when there is a governmental termination of freedom of movement through means intentionally applied.” Brower, 489 U.S. at 596-97. According to Purnell, he did not seize Henry because the means by which he stopped Henry (the handgun) was not the means he intended to apply (the Taser). On facts virtually identical to those presented here, one district court has adopted this reasoning. Torres v. City of Madera, CV F 02-6385 AWI LJO, at 11 (E.D. Cal. Apr. 8, 2005) (unpublished opinion). I believe that Purnell and the Torres court read Brower too narrowly. Other language in Brower counsels against an overly restrictive interpretation of its holding. “In determining whether the means that terminates the freedom of movement is the very means that the government intended we cannot draw too fine a line, or we will be driven to saying that one is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant only for the leg.” Brower, 489 U.S. at 599. Further, the Court stated, “[w]e think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.” Id. Here, as a factual matter, Henry was stopped by a projectile fired from the handgun, which was “the very instrumentality set in motion . . . in order to achieve that result.” More 2Purnell does not contend that he is entitled to qualified immunity on the ground that it is not clearly established that shooting someone with a handgun in the belief that a Taser is being fired constitutes a Fourth Amendment seizure. If he made that contention, I would reject it. Although I recognize that the Torres court has held to the contrary, Torres was decided in another jurisdiction, and, for the reasons I have stated, I find that the Supreme Court’s decision in Brower clearly establishes that a seizure does occur under those circumstances. Moreover, to apply the doctrine of qualified immunity under these circumstances would be purely mechanical. It is not sufficient simply to review prior case law to ascertain whether there is a precedent “on all fours” or “nearly on all fours.” Rather, qualified immunity issues must be decided against the background, and with the objective of furthering, the purpose for which public officials are afforded qualified immunity: to prevent them from the cost, risks, and annoyance of harassing litigation that might fetter their conduct and hinder them in the performance of their duties. See Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982); Anderson v. Creighton, 483 U.S. 635, 638 (1987). Here, assuming the law was not clearly established that a Fourth Amendment seizure occurs when an officer shoots a fleeing suspect with a handgun believing it to be a Taser, it certainly cannot be fairly said that Henry’s lawsuit is “harassing.” His Fourth Amendment claim is, as I have held, based upon a correct reading of the holding in Brower. (If I am wrong on this point, Henry’s claim fails for the fundamental reason that there was no Fourth Amendment seizure). Likewise, any asserted lack of clarity in the law would not have fettered Purnell’s conduct or hindered him in the performance of his duties. No reasonable officer would shoot a fleeing suspect with a handgun believing it to be a Taser on the ground that there was no judicial precedent precisely on point. Nor would the officer’s training be affected in any way by the absence of such a precedent. In contrast, as stated in the text, infra, if the issue presented was whether Purnell is entitled to qualified immunity for having shot Henry with a Taser (the act he believed he was committing), the answer would be “yes.” In that event, it would be probable that Purnell’s conduct did not violate Henry’s Fourth Amendment rights at all. However, even if the shooting of Henry with a Taser under the circumstances presented would have violated his Fourth Amendment rights, those rights were not clearly established at the time of the incident. 4 fundamentally, it is undisputed that Purnell intended to acquire physical control over Henry, whatever weapon he fired. Under Brower that is the fact that ultimately is crucial. III. A. Purnell next contends that he is entitled to qualified immunity on Henry’s federal constitutional claim because he reasonably perceived that under existing law his use of force was reasonable within the meaning of the Fourth Amendment.2 See generally Anderson, 483 U.S. Moreover, it might reasonably be said that the absence of any judicial precedent on point might well have affected Purnell’s decision-making process and the training he had received. Thus, to grant him qualified immunity under those circumstances would be consistent with the purpose of the doctrine. 3Under Fourth Circuit law, “a defendant’s entitlement to qualified immunity under a particular set of facts should be decided by the court, not by the jury.” Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005). Thus, a jury should not be instructed on the defense. Although a defendant may, of course, ask the jury at trial to find in his favor facts that the court has viewed in the light most favorable to the plaintiff when denying a summary judgment motion raising the qualified immunity defense, determination of the viability of the defense remains within the province of the court. The Fourth Circuit’s ruling on this issue surely is correct for at least three reasons. First, the purpose of the qualified immunity doctrine to protect police officers and other public officials from harassing litigation by weeding out unmeritorious claims, see Harlow, 457 U.S. at 814; Anderson, 483 U.S. at 638, is fulfilled if, after carefully examining the evidence in the light most favorable to the plaintiff on a motion for summary judgment, the court determines that the qualified immunity defense fails under the two-step analysis mandated by Saucier. Second, although (as stated in section IIIB, infra) juries are traditionally asked in civil cases to evaluate the reasonableness of parties’ conduct, they are entirely unequipped to answer the Saucier inquiries, which necessarily require a review of relevant judicial precedents. That obviously is a function and the responsibility of judges. Third, to instruct a jury on qualified immunity in a Fourth Amendment excessive force case would be confusing, at best, and (despite the fact that in the past defense counsel routinely requested such an instruction) unfairly detrimental to defendants. Because qualified immunity is an affirmative defense, a qualified immunity 5 635 (defense of qualified immunity may be asserted in a Fourth Amendment excessive force case). In determining whether a police officer or other public official is entitled to qualified immunity, courts are to follow a two-step process. First, they are to ask whether, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, if the answer to the first question is yes, they are to further inquire “whether the right was clearly established.” Id. In deciding the second issue, “[t]he relevant, dispositive inquiry . . . is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202.3 instruction would appear to place the burden upon the defendant to prove that he acted reasonably when, in fact, the burden is on a plaintiff to prove that the defendant’s conduct was objectively unreasonable. 4Indeed, Purnell’s own spontaneous statement at the scene that he had not intended to use his gun evidences that he himself recognized the unreasonableness of using a handgun rather than a Taser under the circumstances confronting him. 6 Here, the answer to the question of whether Purnell is entitled to qualified immunity depends upon how the question is specifically framed. On the one hand, if the question posed is whether Purnell is entitled to qualified immunity for shooting Henry with his handgun (the act he actually committed), the answer clearly is “no.” Numerous cases hold that an officer may not shoot a fleeing suspect where the suspect poses no immediate danger to the officer. See, e.g., Tennessee v. Garner, 471 U.S. 1, 10-11 (1985) (police officer violated the Fourth Amendment when he used deadly force against unarmed, nondangerous fleeing suspect).4 Therefore, if Purnell’s underlying intent not to fire a handgun is disregarded, his conduct did violate Henry’s Fourth Amendment rights, and it would have been clear to a reasonable officer in his position that his conduct was unlawful. On the other hand, if the question asked is whether Purnell is entitled to qualified immunity for having prevented Henry from fleeing by shooting him with a Taser (the act he believed he was committing), the answer would be “yes.” Plaintiff has cited no case, and I am aware of none, prohibiting an officer’s use of a Taser against someone for whom there is an outstanding warrant and who previously avoided arrest. Thus, if all that were considered is Purnell’s intention to use a Taser, in all likelihood the first step of the Saucier test would be dispositive because Purnell’s actions did not violate Henry’s constitutional rights. At the least, it would not have been clear to a reasonable officer standing in Purnell’s position that his conduct was unlawful. 7 There is, however, a third way of stating the question that I find provides the key to correct analysis: is Purnell entitled to qualified immunity at this stage of the litigation despite the existence of disputed facts concerning the objective reasonableness of his belief that he was firing a Taser when he shot Henry with a handgun? Framed in this fashion, the question must be answered in the negative. Although indisputably Purnell subjectively believed he was using his Taser when he shot Henry, Graham v. Connor, 490 U.S. 386 (1989) expressly holds that in considering a civil claim based upon a Fourth Amendment seizure, an officer’s subjective good faith is not a defense. Id. at 397. Rather, “the question is whether the . . . [officer’s] actions are ‘objectively reasonable’ in light of the facts and circumstances confronting . . . [him], without regard to . . . [his] underlying intent or motivation.” Id. “Objective reasonableness” is to be determined by such factors as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight, . . . judged from the perspective of a reasonable officer on the scene . . . .” Id. at 396. Therefore, Purnell violated Henry’s Fourth Amendment rights if, applying these criteria, his belief he was using a Taser was objectively unreasonable under the circumstances he was confronting, as he then reasonably perceived them to be. Likewise, these rights were clearly established because under Graham it would have been clear to a reasonable officer that it was unlawful to use deadly force on the basis of an objectively unreasonable belief about the nature of the weapon being discharged. I recognize, of course, that Purnell contends that his conduct was objectively reasonable. Ultimately, a jury might agree with him. However, in considering a summary judgment motion raising the defense of qualified immunity, the facts must be viewed most favorably to the 8 plaintiff. Saucier, 533 U.S. at 201; Clem v. Corbeau, 284 F.2d 543, 550 (4th Cir. 2002). Here, various facts are relevant to the reasonableness of Purnell’s actions, including (1) the nature of the training Purnell had received to prevent incidents like this from happening, (2) whether he acted in accordance with that training, (3) whether he would have discovered that he was holding a handgun rather than a Taser if, as he apparently had been trained to do, he had attempted to flip the thumb safety device on what he thought was the Taser, (4) whether Henry’s trickery in eluding him three days before heightened Purnell’s sense of danger, warranting the need for hurried action, or (5) whether Henry’s earlier trickery angered Purnell, causing him to act with undue haste and inconsistently with his training. Resolution of any disputes about these facts and the effect of the reasonable inferences to be drawn from them must await trial. B. (1) There is another way to approach this aspect of the case which, though arguably inconsistent with current law, would be simple, straightforward, and provide the basis for sound analysis. I have chosen to discuss it because in my judgment the law relating to Fourth Amendment civil claims has become somewhat incoherent and should be revamped in one fundamental respect. In my view, courts should explicitly hold that once it has been established that an officer committed an intentional act constituting a Fourth Amendment seizure, a plaintiff should be required to prove not only that the officer’s actions were objectively unreasonable under the Graham v. Connor criteria but also that the officer was malicious, reckless, or grossly negligent - not merely negligent - in committing the intentional act constituting the Fourth 5It seems to me that imposition of liability for an officer’s gross negligence in committing an intentional act constituting a Fourth Amendment seizure that was objectively unreasonable would be consistent with the purpose of the Fourth Amendment of protecting against unreasonable seizures - a purpose emphasized by the Court in Graham v. Connor. However, determining whether a gross negligence standard properly balances the competing policy concerns presented in Fourth Amendment civil claim jurisprudence ultimately is an issue for the appellate courts to decide. In the present case, there is sufficient evidence that Purnell acted recklessly to create a jury issue on that question. Thus, if the case proceeds to trial, I will preserve the issue of the propriety of a gross negligence standard for possible appellate review by submitting a special verdict form which, after first asking the question whether the jury finds that Purnell’s actions were objectively unreasonable, asks two follow-up questions to be answered in the event that the answer to the first question is “yes”: whether the jury finds that Purnell acted recklessly and, if not, whether they find he acted with gross negligence. 6By proposing recklessness (and perhaps gross negligence) as an element of a Fourth Amendment civil claim, I am not suggesting that Brower or the accidental shooting cases it has spawned were incorrectly decided. To the contrary, I think they are absolutely right in declaring that the commission of a reckless or grossly negligent act that was not intended by an officer as a means of acquiring physical control over a person does not constitute a seizure within the meaning of the Fourth Amendment. I recognize that in this case, as discussed in section II, supra, there is a question under Brower whether Purnell’s actions constituted a seizure, and if that question is answered in the negative, Henry does not have a federal constitutional claim. But a holding that an officer’s shooting someone with a handgun when the officer believed he was firing a Taser does not constitute a seizure, while rendering what I am saying in this section of the opinion pure dictum, would not affect the point I am seeking to make. Most acts giving rise to Fourth Amendment claims, e.g., firing a weapon knowing what the weapon is, or using a nightstick, indisputably were committed by an officer with the intent to acquire physical control over someone. 9 Amendment seizure.5 Cf. Anderson, 483 U.S. at 643-44 (holding that an officer is entitled to the defense of qualified immunity if he makes a “reasonable” mistake about whether under existing law a search is “reasonable” under the Fourth Amendment); Daniels v. Williams, 474 U.S. 327 (1986) (holding that merely negligent conduct does not give rise to a Fourteenth Amendment due process claim). Otherwise stated, in my view what I will call a “heightened culpability element” should be explicitly added to a Fourth Amendment civil claim.6 In this case, because there is a clear 7Morrill may provide an instance in which the absence of a heightened culpability requirement as an element of a Fourth Amendment claim led to faulty analysis. The instruction in question was upheld in large part based upon the court’s characterization of the holding in Brower to be that “unintended consequences of government action could not form the basis of a Fourth Amendment violation.” Morrill, 1996 WL 692525, at *2. This characterization is too broad. In Brower the Court gave several examples of actions that would constitute a Fourth Amendment seizure and give rise to a civil claim even though the consequences of the government’s actions were unintended: the stopping of the plaintiff “by the accidental discharge of a gun with which he was meant only to be bludgeoned or by a bullet through the heart that was meant only for the leg.” Brower, 489 U.S. at 599. Indeed, the fatal collision involved in Brower itself was the unintended consequence of the roadblock the defendants had set up. Perhaps all the court meant to say in Morrill is that in Brower the Supreme Court manifested a reluctance to hold officers liable for merely negligent conduct. But if that is so, it 10 dispute as to whether Purnell acted recklessly or with gross negligence, those issues should be decided by a jury. I recognize that, at least insofar as consideration of an officer’s alleged malice is concerned, Graham may appear to militate against the addition of a heightened culpability element to a Fourth Amendment civil claim. However, trial judges frequently give an instruction that mere negligence is not sufficient to give rise to a Fourth Amendment claim. Such an instruction may be difficult to reconcile with a strict reading of Graham, because the “objective unreasonableness” test appears difficult to distinguish from the negligence standard applied in professional malpractice cases. Nevertheless, the instruction reflects an institutional instinct that the fact an officer merely made a mistake should not be sufficient to give rise to civil liability under the Fourth Amendment. This same instinct is reflected in appellate decisions. When asked to review instructions in which the trial court has advised the jury that an officer’s merely negligent actions do not give rise to liability under § 1983, circuit courts uphold them. See, e.g., Morrill v. Prince George’s County, Maryland, No. 95-3209, 1996 WL 692525 (4th Cir. Dec. 4, 1996).7 Cf. Sturges v. supports my view that the appellate courts should so hold explicitly. 8According to the evidence produced by Graham (the only evidence, of course, before the district court when it granted defendant’s motion for directed verdict), the facts were as follows. Graham, a diabetic, felt the onset of an insulin reaction and asked a friend to drive him to a nearby convenience store. Graham entered the store but left immediately when he saw the long line at the checkout counter, and he asked his friend to drive him elsewhere. Officer Connor witnessed Graham’s hurried exit, grew suspicious, and made an investigatory stop of the car. Connor and other officers who later arrived on the scene ignored Graham’s pleas for sugar, even 11 Matthews, 53 F.3d 659 (4th Cir. 1995). They also sometimes find to be “objectively reasonable” actions that do not appear to be reasonable at all. See, e.g., Mazuz v. Maryland, 442 F.3d 217 (4th Cir. 2006) (executing search warrant in violent manner at the wrong college dormitory room). Likewise, they apply the qualified immunity doctrine to protect officers from liability for conduct that appears quite unreasonable. See, e.g., Waterman v. Batton, 393 F.3d 471, 482-83 (4th Cir. 2005) (finding officers to be qualifiedly immune for shooting suspect driver when officers were no longer in zone of danger). The need, manifested in these opinions, to protect officers from liability for difficult decisions they have to make under difficult circumstances is understandable. But, in my judgment, explicit recognition that a degree of culpability greater than negligence is an element of a Fourth Amendment civil claim would provide a far cleaner and more forthright means of affording that protection. I finally note that the establishment of a heightened culpability element to a Fourth Amendment civil claim would be far less violative of Graham than might appear at first blush. In Graham the Supreme Court was reviewing a divided opinion of the Fourth Circuit upholding the district court’s granting of a directed verdict for police officers who, if plaintiff’s version of events were found to be true, had engaged in conduct that was clearly unreasonable by any measurement.8 In making its ruling, the district court applied a standard taken from Johnson v. after Graham passed out. The officers manhandled him and threw him headfirst into a police car, only to release him shortly thereafter upon receiving a report that Graham had done nothing wrong at the convenience store. In the encounter, Graham suffered a broken foot, cuts on his wrist, a bruised forehead, and shoulder and ear injuries. Graham, 490 U.S. at 388-90. 12 Glick, 481 F.2d 1028 (2d Cir. 1973) and found that the evidence was insufficient to establish that the officers had not acted in good faith or had applied force “maliciously or sadistically for the very purpose of causing harm.” Graham v. City of Charlotte, 644 F. Supp. 246, 248 (W.D.N.C. 1986). The Supreme Court found this standard to be improper in cases arising under the Fourth Amendment. Contrasting the rights protected by the Fourth Amendment with the rights protected by the cruel and unusual punishment clause of the Eighth Amendment, the Court held that the “good faith” and “malicious and sadistic” test failed to focus upon the unreasonableness of the seizure that had occurred, as the Fourth Amendment requires. The Court then defined the criteria to be applied in determining reasonableness, which included, as quoted earlier in this opinion, “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. The Court also emphasized that the determination of reasonableness “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. The Court went on to say that “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397. Further expanding on the point, the Court stated that “[a]n officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively 9There is one respect in which the heightened culpability element I propose would be inconsistent with the literal language of Graham. Under my formulation, if a plaintiff proved that an officer’s conduct was objectively unreasonable, he could meet his burden on heightened culpability by proving that the officer acted with recklessness, gross negligence, or malice. The third of these factors relates to the officer’s “underlying intent or motivation, ” which Graham indicated was immaterial. However, what was of concern to the Court in Graham was the misuse of the factor of intent and motivation in two ways: to render an officer liable for objectively reasonable conduct solely because he had subjectively bad intentions or to excuse him from liability for objectively unreasonable conduct solely because he had subjectively good intentions. It is extremely doubtful that the Court intended that an officer’s malice was immaterial in a third scenario: where the plaintiff was able to prove that the officer’s conduct was objectively unreasonable and that he was motivated by malice. 13 unreasonable use of force constitutional.” Id. Because of this language, and because of the focus the Court directed to be placed upon the “objective reasonableness” of an officer’s conduct, post-Graham cases have not articulated heightened culpability as an explicit element of a Fourth Amendment civil claim. It is not entirely clear, however, that this was the Court’s intended meaning (or that it would have been the Court’s intended meaning had it foreseen the confused manner in which the law subsequently developed). All that the Court held in Graham was that an officer’s “underlying intent or motivation” is immaterial and that application of the Johnson v. Glick “good faith” and “malicious and sadistic” standard had been erroneous. The Court did not hold that an officer could be liable for mere negligence. Moreover, there was no reason for the Court to opine on the issue, given that the facts established by the plaintiff’s evidence easily gave rise to a reasonable inference that the officers had acted with recklessness or, at least, gross negligence.9 In any event, however Graham is read, I believe the time has come for appellate courts to revisit the issue of whether an element of culpability greater than negligence should explicitly 10Although I believe it is clear from what I have already said, I want to reiterate that I am not suggesting that reckless or grossly negligent conduct, unaccompanied by an underlying intentional act constituting a Fourth Amendment seizure, can give rise to a Fourth Amendment claim. As Brower makes clear, the concept of a constitutional “seizure” necessarily implies an intentional act. An officer’s recklessness or gross negligence would become material only after the seizure has been established. 14 be made a component of a Fourth Amendment civil claim.10 If it is made clear that an officer is not liable on a Fourth Amendment civil claim unless he acted with malice, recklessness, or perhaps gross negligence, an ancillary benefit would be that courts no longer would need to overextend the defense of qualified immunity. Nor would they have to strain to find objectively reasonable conduct that juries (to whom in other civil cases decisions about the reasonableness of a party’s conduct are entrusted) might well find to be objectively unreasonable. The balance between preventing abuse by governmental authorities and protecting officials from harassing litigation -- the competing policy interests upon which the doctrine of qualified immunity is based, see, e.g., Harlow, 457 U.S. at 814, Anderson, 483 U.S. at 638 -- would then be better struck. (2) The approach I have suggested, while adding a jury instruction concerning the heightened culpability element of plaintiff’s Fourth Amendment claim, would not lead to the introduction of any different or additional evidence during the trial. Counsel would remain free to argue about whether or not Purnell’s conduct was objectively reasonable. However, presumably they would also address whether or not he acted with recklessness or gross negligence. In all likelihood, this dual focus on objective reasonableness and heightened degree of culpability would make the issues much more comprehensible to the jurors. For them (as for 15 me), the abstract question of whether it is reasonable for an officer to shoot someone with a handgun while believing he is firing a Taser may be somewhat bewildering. It seems virtually impossible to answer without reference to factors bearing upon the issue of whether the specific circumstances confronting Purnell caused him merely to make a mistake, i.e., to commit a negligent act, or whether his disregard of the training he had received is so inexplicable that it demonstrates recklessness or gross negligence. Of course, choosing the manner in which to present the case would be entirely up to counsel, and this forecast of their arguments is not intended to superimpose a mold upon them. However, anticipating what may occur at trial is useful in demonstrating that explicit recognition of the heightened culpability element I am proposing would bring to the law the greater coherence I believe is required, from the earlier stages of litigation, when the question of qualified immunity is being resolved, through counsel’s closing arguments, in those cases where it is judicially determined that the defense of qualified immunity is not available. IV. Purnell’s final contention is that he is also entitled to statutory immunity as to Henry’s state constitutional claim. Maryland law is clear that common law public official qualified immunity does not apply in cases arising under Maryland’s Declaration of Rights. See Okwa v. Harper, 360 Md. 161, 201, 757 A.2d 118, 140 (2000); Clea v. Mayor & City Council of Baltimore, 312 Md. 662, 684-85, 541 A.2d 1303, 1314 (1988). Under the Maryland Tort Claims Act, however, state officials are immune from liability for torts -- including constitutional torts -- committed within the scope of their duties and “made without malice or gross negligence.” Md. Code Ann., State Gov’t § 12-105 (2006); Md. Code Ann., Cts. & Jud. Proc. §5-522(b); see Lee v. 16 Cline, 384 Md. 245, 266, 863 A.2d 297, 310 (2004) (holding that immunity under the Maryland Tort Claims Act encompasses constitutional torts). Purnell nevertheless is not entitled to summary judgment on the state claim. Although I agree that Henry could not prove that Purnell acted with actual malice (in light of Purnell’s spontaneous exclamation at the scene that he had intended to use his Taser), the evidence on the summary judgment record is fully sufficient to create a jury issue on the question of whether Purnell was grossly negligent. A separate order denying Purnell’s motion is being entered herewith. Date: April 21, 2006 /s/ J. Frederick Motz United States District Judge

Grinage v Mylan Pharmaceuticals -Federal law pre-empts state law tort action that creates liability for generic manufacturers who fail to take independent action to change their labels.

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : BEATRICE GRINAGE, as Personal : Representative of Aaron Grinage, Deceased : : v. : Civil No. CCB-11-1436 : MYLAN PHARMACEUTICALS, INC. : : : MEMORANDUM Beatrice Grinage (“Grinage” or “plaintiff”) brought this action against Mylan Pharmaceuticals, Inc. and its parent company Mylan, Inc. (collectively, “Mylan” or “defendants”) after her husband ingested Allopurinol, a Mylan-manufactured drug, and then developed a skin disease that led to his death. Acting as her husband’s personal representative, Grinage alleges Mylan is liable for both compensatory and punitive damages under state law theories of negligence, strict products liability, fraud, and breach of implied warranty. Grinage originally brought suit in Maryland state court, and Mylan removed to this court on the grounds of diversity jurisdiction, as Grinage is a resident of Maryland, Mylan, Inc. is incorporated in Pennsylvania, and Mylan Pharmaceuticals, Inc. has its principal place of business in West Virginia. Grinage subsequently filed an amended complaint, and Mylan filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss. The company argues that pursuant to Pliva, Inc. v. Mensing, 564 U.S. ----, 131 S. Ct. 2567 (2011), federal law and FDA regulations pre-empt the state law claims raised. The issues have been fully briefed, and no hearing is necessary. See Local Rule 105.6. For the reasons stated below, the defendant’s motion will be granted and this suit will be dismissed. 2 BACKGROUND On January 21, 2008, Aaron Grinage received a prescription for Allopurinol tablets for treatment of gout. (Am. Compl. ¶ 7, ECF No. 22.) The tablets were manufactured and marketed by the defendant, Mylan. (Id. at ¶ 10.) Mr. Grinage took Allopurinol for approximately one month before he was diagnosed with Stevens-Johnson Syndrome, a skin disease, and then with Toxic Epidermal Necrolysis, a related but more severe skin reaction. (Id. at ¶¶ 22–26.) On March 8, 2008, he suffered multi-system organ failure and died. (Id. at ¶ 28.) Allopurinol is a generic version of Zyloprim, a brand-name drug the FDA approved in 1966. (Id. at ¶ 8.)1 Mylan alleges, and Grinage does not dispute, that the warning label for Allopurinol “is and has always been substantially identical to the warning contained in the labeling of . . . Zyloprim.” (Def.’s Mot. to Dismiss 5–6.) The labels for both products state that the “most frequent adverse reaction to [the drug] is skin rash” and that “[s]kin reactions can be severe and sometimes fatal.” (Def.’s Mot. to Dismiss, Exs. B, C.) Both labels report the skin reactions of Stevens-Johnson Syndrome and Toxic Epidermal Necrolysis are “probably causally related” to ingestion of the drug. (Id.) The labels cite one study that found that 3% of patients had skin reactions, but they further note that “with current usage, skin reactions have been observed less frequently than 1%.” (Id.) In Grinage’s amended complaint she alleges that Mylan “knew or should have known that the risk” of Stevens-Johnson Syndrome or Toxic Epidermal Necrolysis “was greater than 1% referenced in the label [sic].” (Am. Compl. ¶ 14.) The complaint further alleges that Mylan 1 The original Zyloprim patent-holder, Prometheus Labs, continues to manufacture and sell the drug. (Am. Compl. ¶¶ 10–13.) 3 was “negligent in failing to report published articles and overwhelming scientific evidence of increased risks” to the FDA, the brand name manufacturer, healthcare providers, and patients. (Id. at ¶ 15.) As a result, Grinage concludes, the decedent consumed a product that “caused unreasonably dangerous risks,” (id. at ¶ 43), and was “not safe or fit for its intended purpose.” (Id. at ¶ 75.) In all, the complaint articulates independent claims of negligence, strict liability, fraud, and breach of implied warranty. Based on these claims, the complaint seeks compensatory and exemplary damages for wrongful death. In response, Mylan has filed a 12(b)(6) motion to dismiss. STANDARD OF REVIEW “[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (internal quotation marks and alterations omitted) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). When ruling on such a motion, the court must “accept the well-pled allegations of the complaint as true,” and “construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). “Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). To survive a motion to dismiss, the factual allegations of a complaint “must be enough to 4 raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and alterations omitted). Thus, the plaintiff’s obligation is to set forth sufficiently the “grounds of his entitlement to relief,” offering more than “labels and conclusions.” Id. (internal quotation marks and alterations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’ - ‘that the pleader is entitled to relief.’” Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1950 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). ANALYSIS Mylan argues that Grinage’s claims are pre-empted by federal law and related FDA regulations. The argument relies on the Supreme Court’s recent decision in Pliva, Inc. v. Mensing, 564 U.S. ----, 131 S. Ct. 2567 (2011). The Mensing Court reviewed facts similar to those at issue here, and the Court barred the plaintiffs’ state law tort claims under the preemption doctrine of impossibility. Id. at 2577. Impossibility, the Court explained, is a species of conflict preemption. Id. (citing Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)). “Where state and federal law directly conflict, state law must give way.” Mensing, 131 S. Ct. at 2577. Mylan contends that the Mensing decision is “dispositive” of all of Grinage’s claims. (Def.’s Reply 2.) In Mensing, the Court consolidated two cases where plaintiffs had sued generic drug manufacturers using Louisiana and Minnesota state-law tort theories. 131 S. Ct. at 2573. Plaintiffs pleaded that the drug manufacturers “knew or should have known of the high risk” of 5 the neurological injuries at issue and “knew or should have known that their labels did not adequately warn of that risk.” Id. at 2574. The Court concluded it was impossible for the manufacturer–defendants to satisfy state products liability laws without violating FDA regulations that require generic drugs to have the same labels as their brand-name counterparts. Id. at 2577–78. The statutory language and regulations related to the Drug Price Competition and Patent Term Restoration Act (“Hatch Waxman”) and the FDA’s interpretation of these rules “require that the warning labels of a brand-name drug and its generic copy must always be the same—thus, generic drug manufacturers have an ongoing federal duty of ‘sameness.’” Id. at 2574–75 (citing 57 Fed. Reg. 17961 (1992)); see also 21 U.S.C. §§ 355(j)(2)(A)(v), 355(j)(4)(G); 21 C.F.R. §§ 314.94(a)(8), 314.127(a)(7). So even if a generic manufacturer had new information about side effects, it could not change its label unless the brand-name manufacturer did so first, or unless the FDA instructed all manufacturers to do so. As a result, pursuant to impossibility pre-emption doctrine, federal law pre-empts any state law tort action that creates liability for generic manufacturers who fail to take independent action to change their labels. Mensing, 131 S. Ct. at 2577–81. State products liability laws generally recognize three different types of actionable product defects: “(1) design defects, (2) manufacturing defects, and (3) labeling defects (e.g., failure to warn).” Bruesewitz v. Wyeth LLC, 562 U.S. ----, 131 S. Ct. 1068, 1087 (2011) (Sotomayor, J., dissenting). According to Grinage, Mensing stands only for the limited proposition that a failure-to-warn claim is pre-empted when a plaintiff avers that a generic drug manufacturer “was required to alter the content of FDA-approved labeling by seeking FDA action.” (Pl.’s Resp. to Mot. to Dismiss 2.) Thus, Grinage argues, Mensing does not affect her 6 negligence and strict liability claims based on failure to warn, at least to the extent that the failure to warn arises from either (1) an independent “duty to effectively communicate warnings” or (2) defendants’ alleged failure to convey warning inadequacies to Prometheus Labs, the brand-name manufacturer of Zyloprim. (Id. at 4.) Likewise, she argues, her negligence claims also survive pre-emption under a defective design theory, and her breach of implied warranty and fraud claims are similarly unaffected.2 The court reviews each of these claims in turn. A. Failure to Warn The plaintiff’s alternative failure-to-warn theories fail either by preemption under Mensing or for failure to state a claim under Iqbal and Twombly. Grinage first argues that this court should, in determining whether a drug is defective under a failure-to-warn theory, use a two-prong test considering both (1) the “substantive adequacy” of warnings, and (2) the overall “efficacy of communication.” (Pl.’s Resp. to Mot. to Dismiss 4–6.) Grinage suggests various methods Mylan could have employed for more effective communication to healthcare providers and consumers, including through Dear Doctor letters, training programs, or “prominent professional or public notifications.” (Id. at 9.) Of these proposed alternative methods of communication, the Mensing Court directly addresses only the use of Dear Doctor letters. Because these letters themselves qualify as “labeling,” FDA regulations require any letter sent by a generic manufacturer to be “consistent 2 The complaint also alleges that Mensing does not apply to any claims arising after the enactment of the 2007 Food and Drug Administration Amendments Act (FDAAA), 121 Stat. 823 et seq. (Am. Compl. ¶ 38.) In its motion to dismiss, Mylan contends that “the FDAAA did not eliminate or amend any of the statutes or regulations relied upon in Mensing and it therefore has no impact on the preemption analysis.” (Def.’s Mot. to Dismiss 16–18.) Grinage failed to address this argument in her response, so the court will treat this claim as abandoned. See, e.g., Ferdinand Davenport v. Children's Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010) (“By her failure to respond to [defendant's] argument” in a motion to dismiss, “the plaintiff abandons [her] claim.”). 7 with and not contrary to” the drug’s approved labeling. 131 S. Ct. at 2576 (citing 21 C.F.R. § 201.100(d)(1)). Grinage argues that the Mensing Court does not necessarily require pre-emption of state law causes of action where the duty to warn can be satisfied with Dear Doctor letters, or other methods of communication that may be more effective than labeling alone. Rather, such a duty and cause of action are preempted only to the extent that the additional communications are not consistent with the drug’s labeling and therefore are prohibited by federal law. See Brasley- Thrash v. Teva Pharm. USA, Inc., 2011 WL 4025734 at *2–3 (S.D. Ala. Sept. 12, 2011) (finding a failure to warn claim against a generic manufacturer not necessarily pre-empted where the claim was supported by an alleged failure to use Dear Doctor letters to disseminate information consistent with an updated brand-name label).3 The problem with Grinage’s argument, as applied here, is that she provides no method of more effective communication that is “consistent with” the drug’s approved labeling. She supports her failure-to-warn argument by suggesting that information about a 2007 Israeli study of Allopurinol should have been communicated to medical providers through alternative channels. (Pl.’s Resp. to Mot. to Dismiss 7.) Contrary to plaintiff’s contention, however, any duty to send Dear Doctor letters that includes “substantial new warning information,” like the Israeli study, is pre-empted by Mensing. 131 S. Ct. at 2576 (“A Dear Doctor letter that contained substantial new warning information would not be consistent with the drug’s approved labeling.”).4 Accordingly, Mylan cannot be held to have violated a state law duty to warn for having failed to send a Dear Doctor letter about the Israeli study. Grinage suggests other 3 An unpublished opinion is cited not for any precedential value but for the consistency of its reasoning on this issue. 4 The Court also reasoned that “if generic drug manufacturers, but not the brand-name manufacturer, sent such letters, that would inaccurately imply a therapeutic difference between the brand name and generic drugs and thus could be impermissibly ‘misleading.’” Id. (citing 21 C.F.R. § 314.150(b)(3)). 8 alternative avenues of communication as well—through training for healthcare providers and professional publications, for example. But she provides the court with no explanation why these methods of communication should be evaluated any differently from Dear Doctor letters. Grinage may also contend that the manufacturer could have met its duty by using the various suggested alternative methods of communication without including substantial new warning information like the Israeli study. But, to the extent that she does make this argument, she has failed to sufficiently plead causation. Maryland courts recognize a presumption with regard to causation, that plaintiffs “would have heeded a legally adequate warning had one been given.” U.S. Gypsum Co. v. Mayor and City Council of Baltimore, 647 A.2d 405, 413 (Md. 1994). This presumption does not, however, relieve a plaintiff of the requirement that she adequately allege causation in the first place. See Lowe v. Sporicidin Intern., 47 F.3d 124, 131 (4th Cir. 1995) (upholding dismissal of a failure-to-warn claim because plaintiff’s “sole allegations as to causation were the very general assertions that ‘as a direct and proximate result of the allegations set forth in’ the summarily pleaded counts”). Here, there is no allegation that Mr. Grinage and his doctor did not see the labeling as it was approved and take into consideration the information included therein about Stevens-Johnson Syndrome. Nor has Grinage alleged any other facts sufficient to support a reasonable inference that further communications consistent with the approved label would have affected the choices made by Mr. Grinage or his doctor. Cf. Charleston Area Med. Ctr. v. Blue Cross & Blue Shield Mut. of Ohio, Inc., 6 F.3d 243, 247 (4th Cir. 1993) (“Although issues of causation are to be decided by the jury, whether the evidence is sufficient to create a jury issue is solely a question of law to be determined by the court.”). Thus, while there may be a viable argument for a duty to “effectively 9 communicate” that survives Mensing, Grinage has failed to articulate how actions required by such a duty would have affected the outcome in this case. Grinage also argues that her failure-to-warn claim survives pre-emption based on defendants’ alleged failure to convey warning inadequacies to the brand-name manufacturer, Prometheus Labs. This is identical to the argument, rejected in Mensing, that the plaintiff could meet its duty to warn by reporting new warning information to the FDA and assuming that the FDA would then approve new labeling for all manufacturers. The Mensing Court held that it is not sufficient to “imagine that a third party or the Federal Government might do something that makes it lawful for a private party to accomplish under federal law what state law requires of it.” Mensing, 131 S. Ct. at 2579 (emphasis in original). Instead, in order to avoid impossibility preemption, the private party must be able to “independently” do under federal law what state law requires of it. Id. Here, Prometheus is the third party referenced in Mensing. Grinage argues that Prometheus, as the brand-name manufacturer, would have been required by FDA regulations to make a labeling change upon receiving new information from Mylan. Then Mylan could have updated its own label without violating the federal duty of sameness. But there is no guarantee that Prometheus would change its own label after receiving communications of warning inadequacies from Mylan. Thus, Mylan cannot independently remedy a state law violation for inadequate labeling by communicating information to Prometheus. This second alternative failure-to-warn theory is therefore squarely rejected by Mensing. B. Defective Design Plaintiff’s defective design claim must be dismissed. In Maryland, a manufacturer may 10 be held strictly liable under a theory of defective design only if a court determines, as a threshold matter, that the product is not “unavoidably unsafe.” See Miles Lab., Inc. Cutter Lab. Div. v. Doe, 556 A.2d 1107, 1114–15, 1121 (Md. 1989) (“Miles Lab. I”). Defendant argues that all prescription drugs are “unavoidably unsafe,” (Def.’s Mot. to Dismiss 13), but this conclusion does not follow from relevant Maryland case law.5 In any event, the court need not determine whether Allopurinol meets this threshold requirement. Even if it does, Grinage’s claim fails because it cannot satisfy the pleading standards of Iqbal and Twombly.6 Maryland courts have not conclusively settled on the proper test for a defectively designed prescription drug. Another judge in this District has applied a seven-factor test that includes several traditional risk-utility factors. See Pease v. American Cynamid Co., 795 F. Supp. 755, 759 (D. Md. 1992) (applying a defective design test in a vaccine product liability case). The Maryland Court of Appeals discussed its approach to defective design claims in Halliday v. Sturm, Ruger & Co., Inc., 792 A.2d 1145 (Md. 2001), involving a firearm. In Halliday, the court held that the risk-utility test applies only when the product malfunctions in some way. Id. at 1153.7 Otherwise, courts should apply a consumer expectation test. Id. at 1149–51, 1158. Applying a consumer expectation test, a product is “unreasonably dangerous,” 5 The Maryland Court of Appeals has adopted Comment k of the Restatement (Second) of Torts § 402(A), which defines and limits product liability actions against “unavoidably unsafe products.” See Miles Lab., Inc. Cutter Lab. Div. v. Doe, 556 A.2d 1107, 1114–15, 1121 (Md. 1989) (“Miles Lab. I”). While Comment k states that unavoidably unsafe products “are especially common in the field of drugs,” it does not suggest that all drugs are per se unavoidably unsafe. Id. Rather, the determination of whether a product is unavoidably unsafe requires a weighing of relevant risk/utility factors. See Doe v. Miles Lab., Inc. Cutter Lab. Div., 927 F.2d 187, 191 (4th Cir. 1991) (“Miles Lab. II”). 6 That plaintiff has styled her defective design claim as a negligence claim instead of a strict liability claim does not affect this analysis. In defective design claims, the plaintiff’s “ultimate burden is the same whether her claim is characterized as one for ‘strict liability,’ negligence or breach of warranty.” Pease v. American Cynamid Co., 795 F. Supp. 755, 759 n.3 (D. Md. 1992). The same is true for failure-to-warn cases. Gourdine v. Crews, 955 A.2d 769, 782 (Md. 2008) (“[N]egligence concepts and those of strict liability have morphed together . . . in failure to warn cases.”) (internal quotation marks and citations omitted). 7 Halliday involved a gun which functioned, as intended, to injure a human being. 11 and therefore defective in design, if it is dangerous “to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Id. at 1150 (quoting Restatement (Second) of Torts § 402A cmt. i). Whether this court applies a consumer expectations test or a risk-utility test, Grinage’s defective design case fails. The consumer expectations test considers the same factors at issue in a failure-to-warn claim, and so its application is barred by Mensing. An ordinary consumer forms her expectations regarding the safety of drugs from her doctor or from the drug’s label. Thus, if Allopurinol is dangerous beyond the expectations of the ordinary consumer, that can only be a symptom of Mylan’s failure to update its label or communicate effectively with doctors. For reasons articulated above, any state law defective design claim predicated on this theory is pre-empted by FDA labeling regulations. The pre-emption analysis may be different, however, for design defect claims where a risk-utility test is appropriate.8 Regardless, Grinage has failed to state a claim based on a riskutility theory. The factual allegations included in the amended complaint are limited to allegations regarding the defendants’ alleged failure to warn. The plaintiff alleges nothing with regard to the utility of Allopurinol or availability of less dangerous alternatives. While she does allege injury, a plaintiff’s right to recovery in a design defect case “may not rest on any presumption from the happening of an accident.” Jensen v. American Motors Corp., Inc., 437 A.2d 242, 245 (Md. App. 1981). Here, no factual allegations are included that raise the right to relief on a risk-utility design defect theory above the speculative level. See Twombly, 550 U.S. at 8 The court expresses no opinion as to whether a properly pled defective design claim, based on a risk-utility theory, would be pre-empted by Mensing. 12 555. Thus, a claim based on the consumer expectations test is pre-empted, and a claim based on a risk-utility test has not been sufficiently pled. The design defect claim therefore must be dismissed. C. Breach of Implied Warranty Because Grinage can make out no viable design defect or failure-to-warn claim, her breach of implied warranty claims must also fail. The complaint includes a claim for breach of implied warranty of merchantability and a claim for breach of implied warranty of fitness for a particular purpose. (Am. Compl. ¶¶ 70–77.) But, beyond those assertions supporting her failureto- warn and design defect claims, no further factual allegations are made in support of the warranty claims. Without more, both warranty claims fail to meet the pleading standards of Iqbal and Twombly. A warranty of merchantability, warranting that the product sold is fit for the ordinary purpose for which such products are used, is implied in the sale of any good, unless properly waived or modified. Md. Code Ann., Com. Law § 2-314(2)(c) (2011); see Shreve v. Sears, Roebuck & Co., 166 F. Supp. 2d 378, 421 (D. Md. 2001). To recover on a claim for breach of implied warranty of merchantability, as with a strict liability or negligence claim, a plaintiff must prove the existence of a defect at the time the product leaves the manufacturer. Ford Motor Co. v. General Acc. Ins. Co., 779 A.2d 362, 369–70 (Md. 2001). Breach can be proved by showing the existence of any of the three general types of defects: manufacturing defects, design defects, or failure to warn. Id. at 370 n.13 (citation omitted). Here, Grinage has not alleged a manufacturing defect, and, as discussed above, any design defect or failure-to-warn claim not 13 pre-empted is too speculative to survive a motion to dismiss. If no claim of defect can survive a motion to dismiss, neither can a claim for breach of implied warranty of merchantability. Conversely, a claim for breach of implied warranty of fitness for a particular purpose does not require proof of a defect. Id. at 376 (“[T]he warranty of fitness sharply contrasts with the warranty of merchantability, which involves an inherent defect in the goods that existed before they left the hands of the manufacturer.”). A warranty of fitness claim does, however, require that the buyer have a “particular purpose” and that the seller have reason to know of that particular purpose. Md. Code Ann., Com. Law § 2-315 (2011). A particular purpose “must be peculiar to the buyer as distinguished from the ordinary or general use to which the goods would be put by the ordinary buyer.” Ford Motor, 779 A.2d at 375 (citations omitted); see Bond v. Nibco, Inc., 623 A.2d 731, 736 (Md. App. 1993) (holding that a complaint failed to state a claim because plaintiff “nowhere alleged that he bought the for a ‘particular purpose’ that in any way differed from the ‘ordinary purpose’ for which these might be used”). Grinage does not aver that her husband had any particular purpose that differed from that of other consumers of Allopurinol. Moreover, there is no indication that Mylan had any knowledge of a particular purpose, if indeed her husband had one. As a result, this claim too must be dismissed. D. Fraud Finally, Grinage’s fraud claim also fails. The basis of Grinage’s fraud claim is alleged fraudulent representations made to the deceased, his prescribing physician, and to the FDA. (Pl.’s Resp. to Mot. to Dismiss 20.) None of these allegedly fraudulent representations, however, 14 can be the basis of a viable claim. Mylan made representations to the deceased and his prescribing physician through the drug’s label. Any claim based on the errors in the label – or omissions in labeling or communications with health providers – is pre-empted by the FDA regulations for the same reason that failure-to-warn claims are pre-empted. See Fisher v. Pelstring, --- F. Supp. 2d ---, 2011 WL 4552464 at *20 (D.S.C. Sept. 30, 2011) (finding fraud claims pre-empted by Mensing because “the plaintiffs [had] not identified any mechanism by which [the manufacturer] could have independently changed or omitted the allegedly false representations on its label without first seeking the federal government's special permission and assistance.”). This leaves the allegations of fraudulent representations to the FDA to sustain a claim of fraud. But, like her design defect claim, these allegations are too thinly-pled to survive a motion to dismiss. Fraud claims are subject to the heightened pleading standards of Federal Rule of Civil Procedure 9(b). Haley v. Corcoran, 659 F. Supp. 2d 714, 724 n.10 (D. Md. 2009). Rule 9(b) requires a plaintiff to plead “with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). These “circumstances” include “the time, place, and contents of . . . false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1297 (2d ed. 1990)). Grinage has not satisfied these heightened pleading standards. The complaint contains no reference to any specific communication to the FDA that constituted a misrepresentation, or to any specific studies or other information improperly omitted from filings or other communications with the FDA. Fraud allegations that fail to comply with Rule 9(b) 15 warrant dismissal under Rule 12(b)(6). Thus, Grinage’s fraud claims must be dismissed.9 E. Wrongful Death Because Grinage has failed to state a claim for negligence, strict liability, breach of warranty or fraud, she has also failed to state a claim for wrongful death. In Maryland, a wrongful death action “may be maintained against a person whose wrongful act causes the death of another.” Md. Code Ann., Cts. & Jud. Proc. § 3–902(a). Thus, a party can only bring a wrongful death action if a “wrongful act” occurred. Georgia-Pacific Corp. v. Benjamin, 904 A.2d 511, 523 n.6 (Md. 2006). A wrongful act is “an act, neglect, or default including a felonious act which would have entitled the party injured to maintain an action and recover damages if death had not ensued.” Md. Code Ann., Cts. & Jud. Proc. § 3–901(e). Because Grinage cannot maintain an action or recover damages for any of the independent product liability, warranty or fraud claims she has articulated, she cannot maintain her claim for wrongful death. See Respess v. Travelers Cas. & Sur. Co. of America, 770 F. Supp. 2d 751, 767–68 (D. Md. 2011) (granting a 12(b)(6) motion to dismiss a wrongful death claim where complaint failed to state a claim for underlying wrongful conduct of gross negligence or intentional infliction of emotional distress). 9 Furthermore, the Supreme Court has held that, at least as to medical devices, any claims of injury due to fraud against the FDA are pre-empted by the federal statutory scheme that “amply empowers the FDA to punish and deter fraud against the Administration, and . . . is used by the Administration to achieve a somewhat delicate balance of statutory objectives.” Buckman Co. v. Plaintiff’s Legal Committee, 531 U.S. 341, 348 (2001); see also Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 203 n.3 (4th Cir. 2001) (rejecting a “fraud-on-the-FDA” claim where plaintiff had argued that “but for” the fraud on the FDA, he never would have been injured). At least one federal circuit court of appeals has held that the logic of Buckman applies to prescription drugs as well. See Garcia v. Wyeth- Ayerst Lab., 385 F.3d 961, 965–66 (6th Cir. 2004) (preempting a Michigan law that created an exception to tort immunity for claims of fraud on the FDA). There are, however, other interpretations of Buckman. See Desiano v. Warner-Lambert & Co., 467 F.3d 85, 95 (2d Cir. 2006) (limiting preemption to causes of action where liability is based solely on the basis of fraud against the FDA). Determining the exact parameters of Buckman is not necessary here, however, because Grinage’s claims fail to meet the 9(b) pleading standards. Cf. Henderson v. Sun Pharm. Indus., --- F. Supp. 2d ---, 2011 WL 4015658 at *5 n.5 (N.D. Ga. Aug. 22, 2011) (declining, in a post-Mensing case, to decide whether to extend Buckman). 16 CONCLUSION In sum, the plaintiff’s complaint is insufficient under the pleading standards of Iqbal, Twombly, and Rule 9(b), to state any claim that is not otherwise pre-empted. While the Supreme Court has not explicitly foreclosed all state law product liability claims against generic drug manufacturers, Grinage has failed to plead factual allegations that raise a plausible right to relief under her alternative theories. This court acknowledges that, at least as to the plaintiff’s failure-to-warn claims, the disposition of this motion to dismiss might have turned out differently had Mr. Grinage’s prescription been filled with the brand-name Zyloprim instead of the generic Allopurinol. As Justice Sotomayor noted in her dissent in Mensing, [A] drug consumer's right to compensation for inadequate warnings now turns on the happenstance of whether her pharmacist filled her prescription with a brand-name drug or a generic. If a consumer takes a brand-name drug, she can sue the manufacturer for inadequate warnings under our opinion in Wyeth [ v. Levine, 555 U.S. 555 (2009) ]. If, however, she takes a generic drug, as occurs 75 percent of the time, she now has no right to sue. 131 S. Ct. at 2592. Precedent constrains this court. Unless and until the FDA modifies its regulations, or Congress further amends the governing statute, there is no authority to allow similar failure-to-warn claims to proceed against generic drug manufacturers like Mylan. A separate order follows. December 30, 2011 /s/ Date Catherine C. Blake United States District Judge IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : BEATRICE GRINAGE, as Personal : Representative of Aaron Grinage, Deceased : : v. : Civil No. CCB-11-1436 : MYLAN PHARMACEUTICALS, INC. : : : ORDER For the reasons stated in the accompanying Memorandum, it is hereby Ordered that: 1. the defendant’s motion to dismiss (ECF No. 26) is GRANTED; and 2. the Clerk shall CLOSE this case. December 30, 2011 /s/ Date Catherine C. Blake United States District Judge

Federal Tort Claims Act – Federal Government Liability for Torts of its Employees During the Course of Employment

If you are involved with an incident where the potentially negligent party is a federal employee then you are compelled to follow the strict guidelines of the Federal Tort Claims Act. This act is uncle sam's permission for you to sue the federal government in certain instances. The application of the FTCA is reviewed in the case below involving a medical malpractice claim against the Naval Hospital. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND * VIRGINIA L. WILLEVER, et al. * * Plaintiffs, * * v. * Case No.: RWT 09cv3072 * UNITED STATES OF AMERICA * * Defendant. * * MEMORANDUM OPINION Plaintiff Virginia Willever and her children (collectively the “Willevers”) brought this Federal Tort Claims Act action in 2009, alleging that the death of Virginia Willever’s husband, Captain Edward Willever, was the result of the negligence of the staff of the National Naval Medical Center (“NNMC”). Three days before the conclusion of discovery, which included the depositions of experts for both sides, the Willevers moved for partial summary judgment on the issue of liability, arguing that the United States is precluded from contesting liability because it failed to file a certificate and report of a qualified expert with the Maryland Health Care Alternative Dispute Resolution Office, as required by the Maryland Health Care Malpractice Claims Act (“HCMCA”). The issue was fully briefed and the Court held a hearing on January 3, 2011. For the reasons stated below, the Willevers’ motion will be denied. BACKGROUND FACTS Captain Edward Willever underwent a four-vessel bypass surgery and left lower lung partial resection at the NNMC in Bethesda, Maryland on May 13, 2008. Compl. ¶ 13. Captain Willever was a fully monitored patient in the Cardiac step unit on May 17, 2008. Id. ¶ 14. At 5:13 a.m. that day, Captain Willever was apparently in normal sinus rhythm. Id. However, at 5:30 a.m., Captain Willever was found on the floor of his room in full cardiac arrest. 2 Id. Captain Willever was apparently off his cardiac monitor for at least seventeen minutes without “an appropriate response by the medical staff.” Id. Captain Willever was resuscitated after his cardiac arrest, but died on May 18, 2008. The Willevers claim that the medical staff’s failure to investigate Captain Willever’s status for the seventeen minutes between 5:13 and 5:30 a.m. was negligent and caused his death. Id. ¶ 16. The United States contests liability in this action, and asserts that NNMC employees did not deviate from standards of care in Captain Willever’s treatment and that any deviation from standards of care did not cause Captain Willever’s death. Def.’s Answer, ECF No. 6. PROCEDURAL HISTORY On January 6, 2009, Virginia Willever filed an administrative claim with the Department of the Navy pursuant to 28 U.S.C. §§ 2401(b)1 and 2675.2 Compl. ¶ 3. The Department of the Navy did not make a final disposition of her claim within six months of its filing, and Virginia Willever chose to deem this inaction to be a final denial of her claim, pursuant to 28 U.S.C. § 2675. Id. ¶ 4. On October 16, 2009, the Willevers filed with the Maryland Health Care Alternative Dispute Resolution Office (the “Office”) a Certificate of Qualified Expert and attached report, wherein the Willevers’ expert opined that NNMC employees’ deviations from standards of care 1 28 U.S.C. § 2401(b ) provides, “A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” 2 28 U.S.C. § 2675(a) provides, “An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim. 3 caused Captain Willever’s death. Pls.’ Mot. for Summ. Judg., Ex. 1-3. The Willevers simultaneously filed an election of waiver of arbitration and both the waiver and the certificate with attached report were served on the United States on November 6, 2009. Id. Ex. 4. The Office entered an order transferring this action to this Court on October 28, 2009. Id. Ex. 5. On November 17, 2009, Virginia Willever, Captain Willever’s widow, filed a two count complaint in this Court on behalf of herself and her children against the United States under the Federal Tort Claims Act. ECF No. 1. The complaint was served on the United States on the same day. Count I asserts a wrongful death claim while Count II asserts a survival action and seeks compensatory damages for Captain Willever’s conscious pain and suffering, anxiety and fright prior to death, together with reimbursement for medical and funeral expenses and lost income. Id. at 6-7. On January 28, 2010, the United States answered the complaint. ECF No. 6. The Court issued a scheduling order on February 1, 2010, which set a deadline of April 2, 2010 for the disclosure of the Willevers’ Rule 26(a)(2) experts, and a deadline of May 3, 2010 for the disclosure of the United States’ Rule 26(a)(2) experts. ECF No. 7. On February 25, 2010, the Court modified the Scheduling Order such that the Willevers’ expert disclosures were due on May 20, 2010, and the United States’ Rule 26(a)(2) expert disclosures were due on July 20, 2010. ECF No. 13. The United States never filed a certificate of a qualified expert with attached report with the Office attesting to NNMC employees’ compliance with standards of care, or attesting that any departure from standards of care was not the proximate cause of Captain Willever’s death. However, the parties filed their expert reports consistent with the Amended Scheduling Order, 4 and proceeded to depose each others’ experts. See Consent Motion to Amend Scheduling Order, at 1. ECF No. 21. Discovery concluded on November 1, 2010. According to the Willevers’ calculations, the United States’ certificate and report of a qualified expert were due to be filed on March 6, 2010, 120 days following service of the Willevers’ certificate and report on the United States. Pls.’ Mot. for Summ. Judg. at 3. As a result, the Willevers contend that they are entitled to partial summary judgment on the issue of liability due to the United States’ failure to file an expert certificate and report with the Maryland Health Care Alternative Dispute Resolution Office. ECF No. 28. ANALYSIS I. Summary judgment is proper if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A material fact is one that “might affect the outcome of the suit under the governing law.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). A dispute of material fact is only “genuine” if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.s. at 248-49. However, the nonmoving party “cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1986). “A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that there is a genuine issue for trial.’” Bouchat v. Baltimore 5 Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The Court may only rely on facts supported in the record, not simply assertions in the pleadings, in order to fulfill its “affirmative obligation . . . to prevent ‘factually unsupported claims and defenses’ from proceeding to trial.” Felty v. Grave-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citing Celotex, 477 U.S. at 323-24). When ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255 (emphasis added). II. The United States “is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define the court’s jurisdiction to entertain the suit.” United States v. Testan, 424 U.S. 392, 399 (1976) (citing United States v. Sherwood, 312 U.S. 584 (1941)). “The Federal Tort Claims Act is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.” U.S. v. Orleans, 425 U.S. 807, 814 (1976). The Federal Tort Claims Act (“FTCA”) is to be narrowly construed against waivers of sovereign immunity. Id. at 813-14. Pursuant to 28 U.S.C. § 1346(b)(1): the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the 6 claimant in accordance with the law of the place where the act or omission occurred. (Emphasis added). Under the FTCA, “the United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances . . . “ 28 U.S.C. § 2674. Claims for wrongful death as a result of the medical malpractice of a United States government employee can therefore be brought under the FTCA. As a condition precedent to bringing a tort claim against the United States under the FTCA, a plaintiff must first submit his claim to the appropriate federal agency and engage in a federal administrative claims procedure. See 28 U.S.C. § 2675. Only after the federal agency has denied the claim, or after six months have elapsed since the filing of the claim, can a claimant bring an FTCA suit in federal court. Id. The Maryland Health Care Malpractice Claims Act (“HCMCA”) establishes a state administrative claims procedure relating to malpractice claims. HCMCA requires a putative plaintiff to first file any medical malpractice claim with the Director of the Maryland Health Care Alternative Dispute Resolution Office (the “Office”), an office within the Executive Branch of the State of Maryland. Md. Code Ann., Cts. & Jud. Proc. §§ 3-2A-03, 3-2A-04. The Director of the Office is appointed by the Maryland Governor with the advice and consent of the Maryland Senate, and is responsible for appointing arbitrators. Id. § 3-2A-03. Under HCMCA’s statutory scheme, the parties must submit to arbitration before a panel consisting of an attorney, a health care provider, and a lay person. Witte v. Azarian, 801 A.2d 160, 166 (Md. 2002). The statutory scheme further provides that a medical malpractice lawsuit filed in either federal or state court “shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of a qualified expert with the Director attesting to departure from standards of care, 7 and that the departure from standards of care is the proximate cause of the alleged injury, within 90 days from the date of the complaint.” Id. § 3-2A-04(b)(1)(i). The filing of the required certificate and report by a claimant is not merely a procedural rule, but is a condition precedent to bringing a medical malpractice lawsuit in this Court or the Maryland state courts. Carroll v. Konits, 929 A.2d 19, 27 (Md. 2007), Kearney v. Berger, 182 Md. App. 186, 194-95 (Md. App. 2008). The purpose of the certificate and report requirements is to “weed out non-meritorious claims and assist the plaintiff or defendant in evaluating the merit of the health claim or defense.” Walzer v. Osborne, 395 Md. 563, 583 (Md. 2006). The HCMCA also requires a defendant to a medical malpractice action to file a certificate of a qualified expert attesting to compliance with standards of care, or that the departure from standards of care was not the proximate cause of the alleged injury, within 120 days from the date the claimant served the defendant with the claimant’s certificate of a qualified expert. Id. § 3-2A-04(b). The HCMCA provides: A claim or action filed after July 1, 1986, may be adjudicated in favor of the claimant or plaintiff on the issue of liability, if the defendant disputes liability and fails to file a certificate of a qualified expert attesting to compliance with standards of care, or that the departure from standards of care is not the proximate cause of the alleged injury, within 120 days from the date the claimant or plaintiff served the certificate of a qualified expert . . . Id. § 3-2A-04(b)(2)(i). Defendants, like plaintiffs, are required to attach an expert report to these certificates. Id. § 3-2A-04(b)(3)(i). The “expert report must explain how or why the physician failed or did not fail to meet the standard of care and include some details supporting the certificate of qualified expert.” Walzer, 395 Md. at 583. A claimant or a defendant may receive an extension of the 8 deadline for filing a certificate and report of a qualified expert “for good cause shown.” Id. § 3-2A-04(b)(5). In order to waive arbitration, a claimant or defendant must file a written waiver with the Office and serve all other parties to the action. Id. § 3-2A-06B. Even if a party waives arbitration, it still must file the expert certificate and report with the Office, or with the court to which the case was transferred if the deadline for filing the certificate and report falls after arbitration has been waived. Id. This Court has consistently held that plaintiff’s expert certificate and report requirements under the Maryland HCMCA apply to medical malpractice cases brought in Maryland under the FTCA. See Davison v. Sinai Hospital of Baltimore, Inc. (D. Md. 1978), aff’d 617 F.2d 361 (4th Cir. 1980), Hampel v. United States, 706 F. Supp. 2d 629, 631 (D. Md. 2010). However, with the notable exception of the Mayo-Parks case, discussed, infra, this Court has never held that the United States is precluded from contesting liability in an FTCA action because of its failure to follow HCMCA’s requirements regarding the filing of a defendant’s certificate of a qualified expert and accompanying report. The Willevers argue that this Court must preclude the United States from contesting liability in this action because of its failure to file a certificate and report from a qualified expert as required by HCMCA. The United States argues that precluding it from contesting liability and granting summary judgment in the Willevers’ favor would violate the United States’ sovereign immunity. Further, the United States argues that the HCMCA only permits, but does not require, this Court to grant summary judgment as to liability in favor of the Willevers. Finally, the United States argues that precluding it from contesting liability would violate Federal Rule of Civil Procedure 55(d). 9 Neither party addressed the potential conflict between HCMCA’s requirement that a defendant submit a certificate and report of a qualified expert and Federal Rules of Civil Procedure 26(a)(2) and 37(c). As discussed below, the Court concludes that HCMCA’s requirements concerning defendant’s filing of an expert certificate and report directly conflict with Federal Rules of Civil Procedure 26(a)(2), 37(c) and 55(d), the Federal Rules control and HCMCA’s defendant’s expert disclosure requirements cannot be applied in federal court. Further, even if the Federal Rules and HCMCA do not directly conflict, HCMCA’s requirements that defendants file expert certificates and reports are procedural, rather than substantive rules, which this Court does not apply under Erie R. Co. v. Thompson, 304 U.S. 64 (1938) and Hanna v. Plumer, 380 U.S. 460 (1965). The Court also concludes that the United States’ sovereign immunity prevents it from being subject to HCMCA’s certificate requirements. Finally, the Court concludes that even if the United States were required to file an expert certificate and report, HCMCA merely allows, but does not require, the adjudication of liability in the Willevers’ favor as a result of the United States’ failure to do so. In this case, the Court will not exercise its discretion to preclude the United States from contesting liability. III. It is well settled that where a state law conflicts with a Federal Rule of Civil Procedure, the federal courts must apply the Federal Rule unless that rule exceeds the mandate embodied in the Rules Enabling Act or transgresses constitutional bounds. Hanna v. Plumer, 380 U.S. 460, 463-64, 471 (1965); see Burlington Northern R. Co. v. Woods, 480 U.S. 1, 4-5 (1987); Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 130 S. Ct. 1431, 1437 (2010); Davis v. Piper Aircraft Corp., 615 F.2d 606, 611 (4th Cir. 1980) (applying F. R. Civ. P. 15(c) rather than 10 contrary North Carolina law regarding to relation back of amended pleadings). A Federal Rule and a state law conflict if they are in “direct collision.” Hanna v. Plumer, 380 U.S. 460, 472 (1965). The “direct collision [ ] language [articulated in Hanna] is not meant to mandate that federal law and state law be perfectly coextensive and equally applicable to the issue at hand.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 27 n. 4 (1988). Rather, a Federal Rule and a state law are in direct collision if the Federal Rule is “sufficiently broad to cover the point in dispute” and application of the state law compels a different answer to the question in dispute than application of the Federal Rule. Id.; see also Shady Grove, 130 S. Ct. at 1437 (if Federal Rule of Civil Procedure “answers the question in dispute . . . it governs, [state] law notwithstandingunless it exceeds statutory authorization or Congress’s rulemaking power.”) Though the federal courts are to “interpret[] the Federal Rules [ ] with sensitivity to important state interests and regulatory policies,” Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 n. 7 (1996), the Federal Rules are to be given their plain meaning, and are not to be narrowly construed so as to avoid a conflict with state law. Walker v. Armco Steel Corp., 446 U.S. 740, 750 n. 9 (1980). The distinction between “substantive” and “procedural” state laws established in Erie does not come into play if the Federal Rule and the state law directly collide; if there is a collision, the Federal Rule controls, regardless of how the state law is characterized. Shady Grove, 130 S.Ct at 1437 (“We do not wade into Erie’s murky waters unless the federal rule is inapplicable or invalid.”); Hanna, 380 U.S. at 470 (“The Erie rule has never been invoked to void a Federal Rule.”). In Hanna v. Plumer, the Supreme Court held that a Massachusetts law requiring in-hand service of process on an executor or administrator of an estate by any putative creditor conflicted with Federal Rule of Civil Procedure 4(d)(1). Hanna, 380 U.S. at 470-71. After determining 11 that Rule 4(d)(1), allowing for service of process by leaving a summons and complaint with a person of suitable age and discretion at the party’s dwelling house or usual place of abode, fell within the limits prescribed by the Rules Enabling Act, the Court concluded that the “clash” between Rule 4 and the Massachusetts law was “unavoidable” because “Rule 4(d)(1) saysimplicitly, but with unmistakable clarity-that inhand service is not required in federal courts.” Id. at 470. Because the state law imposed service requirements above and beyond those imposed by a valid, constitutional Federal Rule of Civil Procedure, the Court held that the state law was in direct collision with the federal law and therefore could not be given effect in the federal courts. Id. at 470-471. By contrast, the Court concluded in Walker v. Armco Steel Corp. that there was no direct collision between Federal Rule of Civil Procedure 3 and an Oklahoma statute providing that an action was “commenced” for the purposes of the statute of limitations only upon service of a summons on the defendant, or, if the complaint was filed within the limitations period, and the defendant was served within 60 days of that filing, on the date the complaint was filed. 446 U.S. 740, 752 (1980). The Court found that there was no direct collision because Rule 3, which states that an action is “commenced” by the filing of the complaint, and the Oklahoma statute, because Rule 3 regulated “commencement” of an action only with respect to when various timing requirements imposed by the Federal Rules begin to run, and does not affect the tolling of state statutes of limitation. Id. at 750-52. There was thus no conflict between the Oklahoma law, which established a rule for the tolling of that state’s statute of limitations, and Rule 3. Walker, unlike Hanna, involved a Federal Rule that was not so broad as to cover the point in dispute— under what circumstances the statute of limitations was tolled—and therefore the Court 12 concluded that the state law, which was “substantive” within the meaning of Erie, must be applied by the federal courts when sitting in diversity. Id. at 750. The Supreme Court recently added to this complex line of cases in Shady Grove v. Allstate Insurance Co., 130 S.Ct. 1431 (2010). Writing for the majority of a heavily splintered Court,3 Justice Scalia concluded that a New York law prohibiting class actions to recover penalties or statutory minimum damages was in direct conflict with Federal Rule of Civil Procedure 23, and therefore could not be enforced by the federal courts. Id. at 1441-1442. The Court reiterated that Hanna and its progeny required the federal courts to apply a Federal Rule of Civil Procedure if it “answers the question in dispute,” so long as it does not “exceed[] statutory authorization or Congress’s rulemaking power.” Id. at 1437. The Court defined the “question in dispute” as whether Shady Grove’s suit for statutory damages could proceed as a class action, and found a direct collision between Rule 23’s answer to that question and the New York statute’s answer to that question. Id. at 1437-1438. Rule 23 creates a “categorical rule entitling a plaintiff whose suit meets the specified criteria [outlined in that rule] to pursue his claim as a class action.” Id. at 1437. In imposing additional restrictions on a plaintiff’s right to maintain a class action, the New York statute conflicted directly with the plain meaning of Rule 23. Id. at 1437-1438. Because the New York statute and Rule 23 answered the same question, “whether a class action may proceed for a given suit,” but answered it in different ways, the federal courts were required to apply Rule 23 to the exclusion of the New York statute. Under Hanna and its progeny, HCMCA § 3-2A-04(b)(2)(i) cannot be applied by this Court because it imposes expert certificate and report requirements on defendants in conflict 3 Justice Scalia delivered the opinion of the Court with respect to Parts I and II-A of his opinion only. Chief Justice Roberts, Justice Thomas, Justice Sotomayor, and Justice Stevens joined in Justice Scalia’s opinion as to Parts I and II-A, but Justice Stevens wrote a separate concurrence, and did not concur in the remainder of Justice Scalia’s opinion. 13 with Federal Rules of Civil Procedure 26(a)(2), 37(c), and 55(d). The Fourth Circuit dealt with an analogous collision of a Federal Rule of Civil Procedure and a state statute in Davis v. Piper Aircraft Corp., 615 F.2d 606 (1980). In Piper Aircraft, the Fourth Circuit considered whether a North Carolina statute was in direct collision with Federal Rule of Civil Procedure 15(c) where it prohibited the relation back of amended pleadings reflecting changes in legal capacity where the amendment would defeat a limitations bar.4 The court concluded that the state statute and Rule 15(c) were in direct collision because the Federal Rule was “quite as broad in scope as the conflicting state rule,” and the state statute imposed greater burdens on the relation back of amended pleadings than those imposed by Rule 15(c). Id. at 610-12. Read together, Hanna, Walker, Shady Grove, and Piper Aircraft stand for the proposition that where a state statute imposes greater procedural burdens on a party than does a Federal Rule of Civil Procedure, and the statute and rule govern the same issue, the state statute cannot be applied in federal court. Federal Rule of Civil Procedure 26(a)(2) governs both the content and the timing of the expert disclosures a defendant is required to make during the course of litigation in federal court. Rule 26(a)(2) requires a party to disclose the identity of any expert witnesses it may use at trial to present evidence under Federal Rules of Evidence 702, 703, or 705,5 and “unless otherwise stipulated or ordered by the court,” to simultaneously provide an expert report from any “witness [ ] retained or specially employed to provide expert testimony in the case.” F. R. Civ. P. 26(a)(2)(A), (B) (emphasis added). Unlike HCMCA, the Rule does not affirmatively compel 4 In Piper Aircraft, plaintiff lacked the legal capacity to maintain the action at the time the complaint was filed because he had not yet been appointed as ancillary administrator of the estate on behalf of which he sued. Having attained that legal capacity only after the statute of limitations had run, he sought to amend the complaint to reflect his status as ancillary administrator, and to have that legal designation relate back to the date of the filing of the complaint. Id. at 609-10. 5 These Rules collectively govern the introduction of expert testimony on matters within the expert’s “scientific, technical, or other specialized knowledge . . . ” F. R. Evid. 702 (testimony by experts); F. R. Evid. 703 (opinion testimony by experts); F. R. Evid. 705 (disclosure of facts or data underlying expert opinion). 14 a defendant to hire an expert to support its position in certain classes of cases, such as medical malpractice cases. The expert report provided pursuant to Rule 26(a)(2) must detail the opinions of the witness, the information considered by the witness in forming his opinions, the exhibits he will use to support his opinions at trial, and information regarding his experience and compensation for serving as an expert. F. R. Civ. P. 26(a)(2)(B). By contrast, expert reports under HCMCA need not necessarily contain such detailed information; all that is required to be contained in a HCMCA expert report is an “expla[nation of] how or why the physician failed or did not fail to meet the standard of care and [ ] some details supporting the certificate of qualified expert.” Walzer v. Osborne, 395 Md. 563, 583 (Md. 2006). In this way, Rule 26(a)(2) actually imposes more specific expert disclosure requirements than those imposed under HCMCA’s competing disclosure scheme. Rule 26(a)(2) also affords the trial court discretion to determine when a party must make expert disclosures to the other party. F. R. Civ. P. 26(a)(2)(C). The rule provides that “[a] party must make these disclosures at the times and in the sequence that the court orders.” Id. (emphasis added). Absent a contrary order by the court, expert disclosures must be made at least 90 days prior to trial, or, if the expert testimony “is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B), within 30 days after the other party’s disclosure.” Id. Rule 26(a)(2) clearly seeks to answer the question of what the United States must disclose to the Willevers regarding its experts’ opinions as to whether NNMC employees breached standards of care, and whether any breach caused Captain Willever’s death. Rule 26(a)(2) also answers the question of when the United States must disclose this information. 15 HCMCA § 3-2A-04(b)(2)(i) seeks to answer the same question in a different way. By imposing more stringent requirements with respect to the United States’ obligation to disclose the opinions of its experts, HCMCA unavoidably collides with Federal Rule 26(a)(2). Rather than allowing the trial court to exercise discretion as to whether an expert report must be provided to the opposing party, the HCMCA mandates that defendant provide an expert report to plaintiff “attesting to compliance with standards of care, or that the departure from standards of care is not the proximate cause of the alleged injury.” Md. Code Ann., Cts. & Jud. Proc. § 3-2A- 04(b)(2)(i). Similarly, Federal Rule 26(a)(2) gives the trial court discretion to determine when the defendant must disclose its experts’ opinions and the facts upon which those opinions are based. F. R. Civ. P. 26(a)(2)(C). HCMCA, by contrast, requires that a defendant provide an expert report within 120 days of being served with plaintiff’s certificate of a qualified expert. HCMCA’s 120 day requirement cannot be given effect without abrogating the essential discretion afforded the trial court to set deadlines regarding defendant’s expert disclosures afforded by Rule 26(a)(2)(C). Perhaps the most troubling “direct collision” between HCMCA’s defendant’s certificate and report requirements and the Federal Rules lies in the different sanctions which may be imposed if a defendant fails to timely disclose the opinions of its experts. Pursuant to HCMCA, if a defendant fails to provide a certificate and report of an expert attesting to compliance with standards of care, or attesting that departures from standards of care were not the proximate cause of the alleged injury, “a claim . . . may be adjudicated in favor of the claimant or plaintiff on the issue of liability.” Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04(b)(2)(i). By contrast, Federal Rule of Civil Procedure 37(c) provides that if a party fails to timely disclose expert opinions, the court may preclude that party from using that witness at a hearing or trial, unless 16 the failure to disclose “was substantially justified or is harmless.” F. R. Civ. P. 37(c). The trial court has both the discretion to excuse a failure to timely disclose expert opinions and to “impose other appropriate sanctions.” Id. However, if the trial court seeks to impose sanctions more severe than precluding the expert witness from testifying, the court must give the non-compliant party an opportunity to be heard. F. R. Civ. P. 37(c)(1). Unlike HCMCA, Rule 37(c) only allows the trial court to preclude a “disobedient party from supporting or opposing designated claims or defenses” upon motion of another party, and only after the “disobedient party” has been given an opportunity to be heard. F. R. Civ. P. 37(c)(1)(C). In contrast to Rule 37(c), HCMCA allows the court to preclude a defendant from contesting liability if a timely expert certificate and report is not provided, even without giving the defendant an opportunity to be heard, and may apparently do so sua sponte. Md. Code Ann., Cts. & Jud. Proc. § 3-2A- 04(b)(2)(i). Hanna, Walker, Shady Grove, and Piper Aircraft dictate that the dispositive inquiry is whether the Federal Rules are sufficiently broad to control the question in dispute. In this case, the Court concludes that Federal Rules of Civil Procedure 26(a)(2) and 37(c) are sufficiently broad to control the question in dispute. They control the question of what disclosures the United States must make to the Willevers—and when—concerning the opinions of its experts as to whether NNMC employees breached standards of care and whether this was the proximate cause of Captain Willever’s death. Because the Federal Rules of Civil Procedure answer the question in dispute, they govern, notwithstanding the conflicting dictates of HCMCA unless the Rules violate the Constitution or the Rules Enabling Act. Shady Grove, 130 S.Ct. 130 S. Ct. at 1437. 17 There is no doubt that Rules 26(a)(2) and 37(c) comply with the mandates of both the Rules Enabling Act and the Constitution. A Federal Rule of Civil Procedure is valid under the Rules Enabling Act if it prescribes “the practice and procedure of the district courts of the United States” and does not “abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072. The Hanna Court held that a Federal Rule of Civil Procedure regulates “the practice and procedure of the district courts” if the “rule really regulates procedures,-the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.” Hanna, 380 U.S. at 464 (quoting Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941)). Regulating the content and timing of a defendant’s disclosures of expert opinions is clearly a “regulation of the judicial process” rather than a rule governing substantive rights. As such, regulation of the discovery process is governed by the Federal Rules, not state discovery procedures. See 8 Wright & Miller, Federal Practice and Procedure § 2005 (except for privilege and Rule 69 issues, federal discovery is wholly governed by Federal Rules of Civil Procedure, and “state discovery practices are irrelevant.”). Federal Rules of Civil Procedure 26(a)(2) and 37(c) are unquestionably constitutional, and accordingly, they govern the instant dispute. Having concluded that there is a direct collision between these Rules and HCMCA’s requirements that a defendant file an expert certificate and report within 120 days of being served plaintiff’s certificate, the Federal Rules must govern, and the United States need only comply with the mandates of this Court’s scheduling orders governing expert disclosures under Rule 26. ECF Nos. 7 & 13. As previously noted, the parties do not dispute that the United States complied with all of this Court’s scheduling orders. Similarly, in this case, there is a clear conflict between Federal Rule of Civil Procedure 55(d) and HCMCA as applied to the United States. Rule 55(d) prohibits entry of a default 18 judgment against the United States unless “the claimant establishes a claim or right to relief by evidence that satisfies the court.” The United States has contested liability and the parties’ experts disagree on whether standards of care were met with regard to Captain Willever’s care. The United States argues that denying it the opportunity to contest liability would therefore result in entry of judgment in the Willevers’ favor even though they have not proven their entitlement to relief with sufficient evidence. The Court agrees. Precluding the United States from contesting liability would result in a judgment against the United States before the Court has weighed the parties’ competing evidence on the issues of standards of care and causation. The Willevers have not yet presented to this Court any evidence that NNMC employees were negligent, and that their negligence caused Captain Willever’s death. Because Rule 55 is broad enough to answer the question of when a default judgment may be entered against the United States, HCMCA may not be applied by the federal courts when its application is in direct collision with the dictates of the Federal Rule. As with Rules 26(a)(2) and 37(c), there is no dispute that Rule 55(d) is both a rule which “regulat[es] the judicial process” by providing for the circumstances under which a default judgment can be entered, and a clearly constitutional one at that. IV. Even if this Court did not find HCMCA’s defendant’s expert certificate and report requirements to be in direct collision with the Federal Rules of Civil Procedure, the Court would still refuse to apply HCMCA’s requirements regarding defendant’s expert disclosures in this case because defendant’s expert certificate and report requirements under HCMCA are procedural, not substantive, rules. Federal courts apply state substantive law and federal procedural law. Hanna, 380 U.S. at 466. In Hanna v. Plumer, the Supreme Court clarified that there is no 19 talismanic test for determining whether a state rule is “substantive” or “procedural” within the meaning of Erie. Id. at 466-467. Rather, in distinguishing procedural from substantive state rules, the Court must look to the twin aims of the Erie doctrine: preventing substantial differences in the “character or result of litigation” brought in federal court as compared to litigation brought in state court, and preventing forum shopping. Id. at 467. It is clear that a federal court’s refusal to apply HCMCA’s requirement that defendants file an expert certificate and report will neither “make so important a difference to the character or result of the litigation that failure to enforce it would unfairly discriminate against citizens of the forum State,” nor will it encourage forum shopping. Id. at 468, n. 9. In sharp contrast to HCMCA’s requirement that a plaintiff file a certificate and report of a qualified expert, defendant’s certificate and report requirements are not conditions precedent to filing a suit. The Maryland courts have held that failure to satisfy a condition precedent completely bars a putative suit, regardless of whether a defendant has suffered prejudice. See Carroll v. Konits, 929 A.2d 19, 22 (Md. 2007) (filing of plaintiff’s expert certificate is a condition precedent and case must be dismissed if condition precedent is not met), see also Williams v. Maryland Dept. of Human Resources, 764 A.2d 351, 364 (Md. App. 2000) (failure to provide State of Maryland with notice of claim, a condition precedent to maintaining an action under the Maryland Tort Claims Act, bars suit). Conditions precedent are not waivable because they are so fundamental to a plaintiff’s right to bring a cause of action in the first instance. Carroll, 929 A.2d at 28 n. 12. If a plaintiff fails to comply with HCMCA’s expert certificate and report requirements, his case must be dismissed without prejudice. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04(b)(1)(i). 20 This Court has analyzed plaintiff’s certificate and expert report requirements under Hanna and found those requirements to be “substantive.” See Davison v. Sinai Hospital of Baltimore, Inc. (D. Md. 1978), aff’d 617 F.2d 361 (4th Cir. 1980). In analyzing these requirements under Hanna, the Court reasoned “that the character of litigation would differ drastically if plaintiffs in Maryland state courts were required to submit their claims to an arbitration panel prior to bringing suit and plaintiffs in this court were not.” Id. at 780. This is so because a plaintiff cannot litigate his case at all if he does not comply with HCMCA. If the federal courts failed to enforce this condition precedent, a federal court medical malpractice case would differ markedly from a Maryland state court medical malpractice case. In federal court, a plaintiff could initiate a medical malpractice action even if no expert would support claims that medical malpractice had occurred, whereas in state court that plaintiff would never even be allowed to proceed with an action. By contrast, the failure to apply HCMCA’s requirements as to defendant’s certificate and report requirements would not result in material differences in the character of state court and federal court litigation. Non-application of HCMCA’s defendant’s certificate and report requirements in federal court will not deprive plaintiffs of information concerning the opinions of defendant’s experts. As discussed, supra, the opinions of defendant’s experts must be disclosed to plaintiffs either by operation of Federal Rule 26(a)(2) in federal court, unless otherwise stipulated or ordered by the court, and by operation of HCMCA in state court. The main difference is that the compulsory 120 day filing deadline imposed by HCMCA may result in state court plaintiffs receiving this information earlier than federal court plaintiffs. But such a difference cannot be said to significantly and materially alter the character of litigation. 21 There is also no reason to believe that the non-application of HCMCA’s defendant’s certificate and report requirements will affect the outcome of medical malpractice cases depending on whether they are brought in state or federal court. A defendant who lacks any meritorious defense will be found liable in federal court or Maryland state court, though possibly at different procedural stages. In federal court this will likely happen at the summary judgment stage, whereas in state court this might happen earlier if a defendant failed to file a certificate and report of a qualified expert and the court determined it was appropriate to exercise its discretion to preclude the defendant from contesting liability. The court is not required to adjudicate liability in plaintiff’s favor if a defendant fails to file a certificate and report of a qualified expert, see Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04(b)(2)(i), it is merely permitted to do so. The outcome of medical malpractice cases will not differ markedly between state and federal courts; only the procedural timing of adjudication of defendant’s liability may differ. Nor is there any reason to believe that forum shopping will result from a federal court’s refusal to apply HCMCA’s expert certificate and report requirements relating to defendants. As discussed, supra, a defendant must reveal the identity and opinions of his experts in federal court pursuant to Rule 26(c), unless otherwise stipulated or ordered by the court. F. R. Civ. P. 26(a)(2). Though the timing of defendant’s expert disclosures may differ between Maryland state and federal courts, the medical malpractice defendant will eventually be required to disclose to a plaintiff the defense expert’s opinions and their foundations. Few plaintiffs would deem this procedural difference a compelling reason to select one forum over another. Further, any perceived advantage accruing to plaintiff as a result of application of HCMCA’s defendant’s certificate and report requirement in state court may be offset by Rule 26(a)(2)’s requirement that 22 expert reports contain greater detail than that required under HCMCA. Compare Walzer v. Osborne, 395 Md. 563, 583 (Md. 2006) with F. R. Civ. P. 26(a)(2)(B). Under the test articulated in Hanna, HCMCA’s requirements that defendants in a medical malpractice case file an expert certificate and report are properly characterized as “procedural.” Because “federal courts are to apply state substantive law and federal procedural law,” Hanna, 380 U.S. at 465, this Court will not apply Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04(b)(2)(i). In Mayo-Parks v. United States, another judge of this Court concluded in a three page opinion that the United States was precluded from contesting liability in an FTCA medical malpractice wrongful death and survival action after it failed to file a defendant’s certificate and report of a qualified expert. 384 F. Supp. 2d 818, 820-21 (D. Md. 2005). This Court has carefully reviewed the opinion as well as the original court file in the Mayo-Parks case, and concludes both that the holding in that case was dictum and that the reasoning was unsound. First, the United States did not contest liability in Mayo-Parks. It conceded both medical negligence and that such negligence resulted in the death of the decedent. See Mayo-Parks v. United States, 03-cv-3497-WDQ, ECF No. 18, p. 2. The only dispute raised by the government was “to what extent damages are due the plaintiffs, an issue that embraces, inter alia, the extent of any mental or physical deterioration experienced by the decedent and the interval of time when such occurred.” Id. In the context of death cases, this is clearly a damages issue; it relates to the conscious pain and suffering of the decedent between the time of the medical negligence and his resulting death. It is a quintessential damages question that is wholly unrelated to the issues of negligence and causation that are at the core of Maryland’s certificate and report requirement. Accordingly, the court concludes that the Mayo-Parks opinion was classic dictum. 23 Second, even if it were not dictum, the reasoning of Mayo-Parks is fundamentally flawed. The opinion in that case concluded that “HCMCA ‘has substantive aspects which, under Erie, must be honored by federal courts,’” citing Rowland v. Patterson, 882 F.2d 97 (4th Cir. 1989). The opinion did not state which provisions of HCMCA are substantive and this is not surprising because the quote from Rowland was incomplete and inaccurate. The complete text of the relevant portion of Rowland is as follows: “There is no Erie problem here. It is true that Maryland’s statutory requirement of arbitration as a precondition to legal action has substantive aspects which, under Erie, must be honored by federal courts.” Rowland, 882 F.2d at 99. From an examination of the full text of the Rowland opinion it is clear that it was not referring to the entire HCMCA, as suggested by language of the Mayo-Parks opinion, but rather to the preconditions to litigation under the HCMCA. As this court has already concluded, the plaintiff’s certificate and report requirements are wholly different than the defendant’s; the former are condition precedents to the right to sue and are substantive, while the latter are procedural and, under Erie, are governed by federal law. The Mayo-Parks opinion did not address the issue of whether HCMCA’s requirement that defendants file an expert certificate and report conflicted with the Federal Rules of Civil Procedure or whether the sovereign immunity of the United States would be implicated in applying it in such a way as to preclude the United States from disputing liability. Nor did the opinion in Mayo-Parks analyze how failure to enforce these provisions in federal court would result in material differences in the “character or result of litigation” depending on whether a suit was brought in federal or state court, nor did it explain how such a rule would lead to forum shopping. This Court therefore declines to apply the holding of that case here. 24 V. Precluding the United States from contesting liability in this action because it failed to comply with the requirements of Maryland’s HCMCA would also be incompatible with the plain language and purpose of 28 U.S.C. § 1346(b)(1), which dictates the scope of the United States’ waiver of its sovereign immunity. Section 1346(b)(1) grants the federal district courts “exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employees of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1) (emphasis added). Medical malpractice actions against the United States under the FTCA are claims that fall within Section 1346(b)(1)’s grant of exclusive jurisdiction to the district courts. See 28 U.S.C. § 2674 (“[T]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances . . . ”). If Maryland could require the United States to participate in mandatory arbitration before a state executive agency as a condition precedent to defending an FTCA action in this Court, Section 1348(b) would be completely undermined. Section 1346(b)(1) shows a clear congressional intent to limit adjudication of FTCA medical malpractice claims to the federal courts. Subjecting the United States to HCMCA would therefore exceed the scope of the United States’ waiver of sovereign immunity. An analysis of the HCMCA arbitration process makes clear its incompatibility with Section 1346(b)(1). The HCMCA compels a defendant to submit to arbitration under the 25 jurisdiction of the Health Care Alternative Dispute Resolution Office, which is a unit within Maryland’s Executive Department. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-03. The Office is headed by a Director appointed by Maryland’s Governor with the advice and consent of the Maryland Senate. Id. Any person with a claim against a health care provider for damages due to a medical injury is required to file a claim with the Director and pay a fee. Id. §§ 3-2A-03A, 3- 2A-04. The healthcare provider is required to “file a response with the Director and serve a copy on the claimant and all other health care providers named therein within the time provided in the Maryland Rules for filing a responsive pleading to a complaint.” Id. § 3-2A-04(a)(1)(iii). Even if a defendant waives arbitration, and the case is transferred to a district court, it must still file and serve its waiver of arbitration on the other parties, and still must submit an expert certificate and report to the Office or the transferee court.6 If it does not, it may be precluded from contesting liability. There is no evidence that Congress, in enacting 28 U.S.C. § 1346(b)(1), intended to subject the United States to state-administered, mandatory arbitration proceedings as a precondition to defending an FTCA action in federal court. The fact that Congress created a mandatory federal administrative claims procedure to assess tort claims under the FTCA further undermines any argument that Congress intended to subject the United States to a state administrative claims procedure in FTCA cases. Pursuant to 28 U.S.C. § 2401(b ), “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” Further, 6 Even if this Court were to conclude that these were modest burdens to place on the United States, any burden imposed on the United States by a state statute in the absence of its consent is invalid. The size of the burden is irrelevant. See TransAmerica Assurance Corp. v. Settlement Capital Corp., 489 F.3d 256, 262 (6th Cir. 2007) (“Although a single instance of compelling the government to file paperwork might seem trifling . . . compulsion itself is the vice that implicates federal sovereign immunity.”) 26 “[a]n action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.” 28 U.S.C. § 2675(a). These statutes establish that engaging in the federal administrative claims procedure is a condition precedent for plaintiff to bring an FTCA action against the United States. The federal claims procedure, unlike Maryland’s, does not require the United States to file documentation supporting its assertion that its employees were not negligent. It is unreasonable to assume the United States intended to subject itself to an administrative claims procedure before a Maryland Executive board in which it must support its defense with expert certificates and reports, when it did not establish similar requirements for its defense in the federal administrative claims process. Applying HCMCA to the United States would essentially deprive the federal courts of their exclusive power to adjudicate the merits of FTCA medical malpractice actions by potentially precluding the United States from contesting liability if it fails to comply with stateimposed procedural requirements. This result cannot be squared with the limited waiver of sovereign immunity contained in 28 U.S.C. § 1346(b)(1). Because waivers of sovereign immunity are to be narrowly construed, Orleans, 425 U.S. at 813-14, Section 1346(b)(1) cannot 27 be interpreted as the United States’ acquiescence to being subject to a mandatory, stateadministered arbitration as a precondition to defending an FTCA suit in this Court.7 VI. Application of HCMCA’s requirements to preclude the United States from contesting liability is inconsistent with Hanna and its progeny, is not compelled by the Erie doctrine, and would impermissibly exceed the scope of the United States’ waiver of sovereign immunity. Even if there were not three independent grounds on which to deny the Willevers’ motion, the Court would nevertheless decline to exercise its discretion to preclude the United States from contesting liability in this case. The plain language of the HCMCA allows, but does not require, this Court to preclude a defendant from contesting liability as a result of its failure to timely file a certificate and report of a qualified expert. The HCMCA says the court may, not that the court shall, adjudicate a malpractice claim in favor of a plaintiff when the defendant fails to file the expert certificate and report. The statute states: A claim or action filed after July 1, 1986, may be adjudicated in favor of the claimant or plaintiff on the issue of liability, if the defendant disputes liability and fails to file a certificate of a qualified expert attesting to compliance with standards of care, or that the departure from standards of care is not the proximate cause of the alleged injury, within 120 days from the date the claimant or plaintiff served the certificate of a qualified expert . . . 7 The Sixth Circuit recently grappled with a similar issue. In Premo v. United States, the Sixth Circuit held that the United States could not be subject to a state’s no-fault automobile accident statute because the statute imposed absolute liability, and the scope of the United States’ waiver of sovereign immunity under the FTCA did not extend to being held liable in the absence of a finding that employees of the United States had acted negligently or wrongfully. Premo, 599 F. 3d 540, 549 (6th Cir. 2010). The Court held that the FTCA’s express language did not allow for imposition of liability absent a finding of “misfeasance or nonfeasance.” Id. Premo stands for the proposition that where application of a state statute would essentially allow for the imposition of liability in the absence of a finding of negligence, it cannot be applied as to the United States. Here, the Court similarly concludes that the United States cannot be found liable for Captain Willever’s death until the Willevers prove that his death was the result of the negligence of NNMC employees. 28 Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04(b)(2)(i) (emphasis added). “The word [‘may’] bears its ordinary significance of permission unless the context or the purpose of the statute shows that it is meant to be imperative.” Fleishman v. Kremer, 179 Md. 536, 541 (Md. 1941) (quoting Farmers’ & Merchs.’ Bank v. Fed. Reserve Bank, 262 U.S. 649, 662). Therefore the plain language of the statute permits, but does not require, the Court to adjudicate a medical malpractice claim in favor of a plaintiff when a defendant fails to file an expert certificate and report.8 The Willevers argue that a permissive interpretation of § 3-2A-04(b)(2)(i) ignores the fact that the HCMCA employs the word “shall” more than four times in stating a defendant’s obligation to file expert certificates and reports. Pls.’ Reply, at 11-13. The Court disagrees. In using the word “shall” elsewhere in Section 3-2A-04, the legislature demonstrated its desire to make certain provisions mandatory, and its use of the word “may” in the above section indicates that the legislature did not intend to make adjudication in favor of the plaintiff mandatory where the defendant failed to comply with HCMCA’s certificate requirements. While the use of the word “shall” in sections referring to defendant’s expert certificate and report filing requirements demonstrates the legislature’s intent to make the filing of these documents mandatory, its failure to use the word “shall” in Section 3-2A-04(b)(2)(i) shows that it did not intend to make the sanction of precluding a defendant from contesting liability mandatory. The Court will not assume that the legislature meant to make a sanction mandatory when the statute’s plain language counsels against such a reading. 8 The Court of Appeals of Maryland has suggested in dictum that a defendant who fails to file an expert certificate and report must be precluded from contesting liability. See Witte v. Azarian, 801 A.2d 160, 169 (Md. 2002) (“[I]n the absence of a countervailing certificate on behalf of the defendant, the defendant loses the right to contest liability.”) This Court respectfully disagrees with that interpretation of the statute, which is, in any event, dictum. 29 Where, as in this case, there is a genuine dispute as to whether standards of care were met and whether any breach of these standards caused Captain Willever’s death, it is inappropriate to preclude the United States from contesting liability because of a minor procedural default. This is especially true because the United States timely disclosed its experts’ opinions consistent with this Court’s scheduling order. CONCLUSION For the reasons articulated herein, the Willevers’ motion for partial summary judgment will be denied by separate order. March 4, 2011 /s/ Date Roger W. Titus United States District Judge

Jill Williams, et al. v. Sandra Long

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Jill Williams, et al. * * Plaintiffs * * Case No. 07-3459-PWG v. * * Sandra Long * * Defendant * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * MEMORANDUM I. Background Facts On December 27, 2007, Plaintiffs Jill Williams and Erin Dechowitz (“Plaintiffs”), on behalf of themselves and others similarly situated, filed a collective action against Defendant Sandra Long (“Defendant”), owner of Charm City Cupcakes, under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201 et seq. The Plaintiffs alleged the Defendant had violated §§ 206(a)(1) and 207(a)(1) of the FLSA by failing to compensate the Plaintiffs at the minimum wage and provide overtime pay. Pls.’ Compl. ¶¶ 18-19, Paper No. 1. Additionally, the Plaintiffs contended the Defendant had violated Baltimore City’s Wage and Hour Law, Balt., Md., Lab. & Empl. Code art. 11, §§ 3-1, 3-3 (2008), and Maryland’s Wage Payment and Collection Law, Md. Code Ann., Lab. & Empl. §§ 3-501 et seq. Id. ¶¶ 20-22. 2 As alleged in the Plaintiffs’ Complaint, from October 2007 to November 2007, the Plaintiffs were employed by the Defendant at various times to prepare, bake, or even serve cupcakes at the Defendant’s business establishment or various sites. Id. ¶ 11. The Defendant allegedly promised Plaintiff Williams that she would receive an hourly wage of $15.00 an hour, and that Plaintiff Dechowitz would receive $6.25 an hour. Id. Supposedly, despite working a “couple hundred hours between them,” the only wage either Plaintiff received was a $20.00 cash advance given to Plaintiff Dechowitz from the Defendant. Id. On March 10, 2008, the Defendant filed an Answer, Paper No. 7, and brought counterclaims alleging breach of contract, breach of fiduciary duty, and invasion of privacy. Def.’s Countercl. ¶¶ 20-40, Paper No. 8. In response, the Plaintiffs moved to dismiss the Defendant’s counterclaims pursuant to Fed. R. Civ. P. 12(b)(1) on the basis that the United States District Court of Maryland did not have supplemental jurisdiction over the counterclaims under 28 U.S.C. § 1367 (2008). Pls.’ Mot. Dismiss 1, Paper No. 9. Subsequently, the Court ruled that the Defendant’s counterclaims were merely permissive and lacked their own independent jurisdictional basis, thereby effectively granting the Plaintiffs’ Motion to Dismiss. Williams v. Long, 558 F. Supp. 2d 601, 603-06 (D. Md. 2008). 3 Previously, on May 9, 2008, the Plaintiffs moved to conditionally certify a collective action pursuant to § 216(b) of the FLSA, and sought approval and facilitation of a notice to potential class members. Pls.’ Mot. 1, Paper No. 15. This section provides: An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. § 216(b). In order to demonstrate other employees were “similarly situated,” the Plaintiffs relied on Bell v. Mynt Entm’t, LLC, 223 F.R.D. 680 (S.D. Fla. 2004), stating that “‘the class certification determination is made using a fairly lenient standard, based primarily on the pleadings and any affidavits which have been submitted.’” Pls.’ Mot. 3 (quoting Bell, 223 F.R.D. at 681). Accordingly, Plaintiffs’ counsel attached to the Motion five exhibits as evidence of the Defendant’s alleged actions towards others similarly situated to the existing Plaintiffs. Pls.’ Exhs. ## 1-5, Paper No. 15, ## 2-6. Exhibit # 1 was a copy of printed search results from the Maryland Judiciary Case Search website, which was not authenticated by affidavit or other extrinsic evidence. The 4 printed webpages contained information pertaining to three independent lawsuits pending against “Charm City Cupcakes” in the “Baltimore City District Court”; however, the printed webpages merely stated that the suits were “Contract” claims and did not divulge the specific allegations of each particular suit. Pls.’ Exh. # 1. Exhibit # 2 was a copy of a civil complaint filed on behalf of Amanda Achey, another employee of the Defendant who reportedly failed to receive adequate compensation for work done from August 14, 2007, to September 3, 2008. Pls.’ Exh. # 2. At the top of Ms. Achey’s complaint was a fax number, suggesting Ms. Achey’s attorneys had faxed a copy of the complaint to Plaintiffs’ counsel. Id. This exhibit was also not authenticated by any extrinsic evidence. Exhibit # 3 was similar to Exhibit # 1, and displayed printed case search results from the website of the Employment Standards Service of the Division of Labor and Industry, in the Maryland Department of Labor, Licensing and Regulation (“MDLLR”). The search results clearly showed there were four closed claims against “Charm City Cupcakes,” yet, once again, the search results did not state the nature of the claims and were not authenticated by extrinsic evidence. Pls.’ Exh. # 3. Exhibit # 4 was an affidavit from Hope Sachs, Assistant Attorney General to the MDLLR, who is responsible for 5 representing the Commissioner of Labor and Industry to the use and benefit of individuals who have filed claims for unpaid wages with the Employment Standards Service. Pls.’ Exh. # 4. In her affidavit, Ms. Sachs stated that on September 7, 2007, she received two claims for unpaid wages against “Sandra Long d/b/a Charm City Cupcakes” in the amounts of $487.07 and $517.74, and noted the claims were appropriate for litigation. Id. Ms. Sachs also stated she received two additional claims on April 18, 2008, in the amounts of $495.38 and $1,079.36, and also believed these claims would be appropriate for litigation. Id. Finally, Ms. Sachs noted she received a claim on November 15, 2006, in the amount of $558.00, but that the Defendant paid the claimant the full disputed amount on March 29, 2007. Id. Of the five total claims described by Ms. Sachs, only the November 15th claim appeared to be present on the printed webpage from the website of the Employment Standards Service.1 Exhibit # 5 was an affidavit from Samantha Stuck, a former employee of the Defendant who also claimed that she was a victim of FLSA violations by the Defendant, and indicated her 1 On Exhibit # 3, “Claim No. 0611113” began on “2006.11.15,” and was determined to be closed on “2007.03.29.” Pls.’ Exh. # 3. In the table marked “Disposition,” there is a number “4,” and a handwritten message stating, “Paid Wages, Employer Paid Wages.” Id. For the other three claims on the printed webpage, there is a number “16,” and a message noting, “Refer to AG’s.” Id. 6 willingness to opt-in as a plaintiff if the case was to be certified as a collective action. Pls.’ Exh. # 5. In addition to the attached materials, the Plaintiffs also submitted a proposed notice of a collective action, Pls.’ Notice, Paper No. 15, # 7, a consent form to be a class member in a suit against “Sandra Long d/b/a Charm City Cupcakes,” Pls.’ Consent Form, Paper No. 15, # 8, and a proposed order granting the Plaintiffs’ Motion, Pls.’ Proposed Order, Paper No. 15, # 9. The Defendant filed a Memorandum in Opposition, contending the discovery process should be permitted to proceed before any certification was made. Def.’s Mem. Opp'n ¶ 8, Paper No. 16. Specifically, the Defendant urged the Court to deny the Plaintiffs’ Motion without prejudice and permit the Plaintiffs to renew the Motion after a period of discovery had been completed. Id. Before the August 20, 2008 hearing on Plaintiffs’ Motion, the Court sought to determine the accessibility of the printed, online information marked as Exhibits # 1 and # 3. In regards to Exhibit # 1, the Maryland Judiciary Case Search website was accessed, and using the case search function on the website, “Charm City Cupcakes” was entered under “Company Name.” The results obtained were virtually identical to those submitted by 7 the Plaintiffs in support of their Motion.2 In regards to Exhibit # 3, the uniform resource locator (“URL”) printed at the top of the webpage was used to access the website; however, further access to the contents of the website was not possible without an Employment Standards Service email address and employee password. At the hearing on the Plaintiffs’ Motion, I asked Plaintiffs’ counsel to proffer how he was able to access the information contained in Exhibit # 3 from the Employment Standards Service website. In response, counsel advised that he obtained a printout of the search results pursuant to a request for records under Maryland’s Public Information Act (“MPIA”), Md. Code Ann., St. Gov’t §§ 10-611 et seq. See Pls.’ Mot. 5 n.2. At the conclusion of the hearing, I rendered an oral opinion granting the Plaintiffs’ Motion, but reserved the right to file a more comprehensive opinion explaining certain aspects of my ruling, which is found herein. 2The time stamp on each printed webpage noted that the online information was printed on “4/21/2008 6:33 PM.” Pls.’ Exh. # 1. The results showed Janae Aiken, Amanda Achey, and Aundrea Newman filed claims against the Defendant on “2/12/08,” “2/20/08,” and “8/28/07,” respectively. Id. Although the first printed webpage noted all three cases were “Active,” further details relating to Ms. Newman’s suit listed the claim as having a “Judgment Entered in Favor of the Plaintiff” on “3/26/08.” Id. As noted by Plaintiffs’ counsel, the printed webpage stated that the Defendant had not yet satisfied the judgment. Pls.’ Mot. 4-5 & n.1; Pls.’ Exh. # 1. On August 22, 2008, the Court performed another search on the Maryland Judiciary Case Search website, and this search disclosed that Ms. Newman’s claim had been switched from “Active” to “Closed.” Also, Ms. Newman’s claim status had been changed to “Satisfied.” 8 II. Certification of a Class Action Under the FLSA, § 216(b) “establishes an ‘opt-in’ scheme whereby potential plaintiffs must affirmatively notify the court of their intention to become a party to the collective action.” Montoya v. S.C.C.P. Painting Contractors, Inc., No. CCB-07-455, 2008 WL 554114, at *1 (D. Md. Feb. 26, 2008) (quoting Marroquin v. Canales, 236 F.R.D. 257, 259 (D. Md. 2006)) (internal quotation marks omitted). Most recently, the Montoya court provided an extensive overview of the law detailing a court’s conditional certification of a class action. As stated in the case, district courts “‘have discretion, in appropriate cases, to . . . facilitat[e] notice to potential plaintiffs.’” Id. (alteration in original) (quoting Camper v. Home Quality Mgt., 200 F.R.D. 516, 519 (D. Md. 2000)). For example, the plaintiffs in Montoya sought the court’s approval for a submitted draft of a notice to other as yet unidentified migrant workers, informing them of their right to opt-in to a suit for violations of the FLSA. Id. This notification is necessary to ensure unknown employees obtain “‘accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate.’” Id. at *2 (quoting Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170, 110 S. Ct. 482, 486, 107 L. Ed. 2d 480 (1989)). “‘The relevant 9 inquiry then is not whether the court has discretion to facilitate notice, but whether this is an appropriate case in which to exercise that discretion.’” Id. (quoting Camper, 200 F.R.D. at 519). The paramount issue in determining the appropriateness of a conditional class certification is whether plaintiffs have demonstrated that potential class members are “similarly situated.” § 216(b), cited in Montoya, 2008 WL 554114, at *1; Quinteros v. Sparkle Cleaning, Inc., 532 F. Supp. 2d 762, 770 (D. Md. 2008); Marroquin, 236 F.R.D. at 259; D’Anna v. M/A-COM, Inc., 903 F. Supp. 889, 893 (D. Md. 1995). Accordingly, plaintiffs must make a preliminary factual showing indicating a similarly situated group of potential plaintiffs exists. Montoya, 2008 WL 554114, at *2; Camper, 200 F.R.D. at 519. “‘This would include factual evidence by affidavits or other means, but mere allegations in the complaint would not suffice.’” Montoya, 2008 WL 554114, at *2 (emphasis added) (quoting Quinteros, 532 F. Supp. 2d at 772). In Marroquin, thirty-seven day laborers filed suit after allegedly failing to receive sufficient compensation under the FLSA for debris removal work following Hurricane Katrina, and, in the court’s view, the submission of affidavits was pivotal in demonstrating a factual basis to support certification. See 236 F.R.D. at 260. To demonstrate there were approximately 113 10 unidentified potential claimants, the plaintiffs submitted affidavits describing tales of “underpayment, unpaid overtime, and bounced paychecks.” Id. Moreover, nearly every affiant reported that the defendants never sought to have workers fill out any applications or paperwork, resulting in an “environment where the alleged abuses [were] more possible.” Id. at 261 n.15. Whereas the presence of a company-wide policy can often be key to the approval of a court facilitated notice, compare D’Anna, 903 F. Supp. at 894 (finding plaintiffs’ lack of evidence of company policy to be insufficient), with Montoya, 2008 WL 554114, at *3 (noting “plaintiffs’ sworn declarations” contained accusations of defendant supervisors enforcing a policy not to pay overtime wages, thereby resulting in class certification), the Marroquin court could not envision how the plaintiffs would be able to possess evidence of an explicit policy of issuing bad checks or refusing to pay wages. 236 F.R.D. at 260. Thus, plaintiffs would only need to show potential claimants had been victimized by a “common policy or scheme or plan that violated the law.” Id. Contrary to the suggestions made by Plaintffs’ counsel, Exhibits # 4 and # 5 are undoubtedly not affidavits; the statements were not made under oath and sworn before a person with authority under the law to administer oaths. 2A C.J.S. Affidavits § 1, at 214 (2003). Rather, the written submissions 11 from Ms. Sachs and Ms. Stuck are unsworn statements declared to be true under penalty of perjury; therefore, these statements are mere declarations. Id. at 215. Notwithstanding this distinction, I see no reason as to why this Court should not consider them in determining whether to conditionally certify the class in this case. First, courts are permitted to use “other means” besides the submission of affidavits in reviewing a motion for certification. Montoya, 2008 WL 554114, at *2 (citation omitted). Second, in Montoya, declarations made under penalty of perjury were supplied by the plaintiffs, and the court relied on them in granting the plaintiffs’ motion. Id. (citing Mot. Certify Class Exh. E, Aplicano Decl. ¶ 8; Mot. Certify Class Exh. D, Carrera Decl. ¶ 10; Mot. Certify Class Exh. G, Montoya Decl. ¶ 8). As a result, this Court will adhere to the practice set forth in Montoya and accept the declarations of Ms. Sachs and Ms. Stuck as evidence supporting the Plaintiffs’ Motion. Even without any additional evidence, Exhibits # 4 and # 5 would be sufficient to meet the initial threshold for conditional certification of a collective action.3 Ms. Stuck 3Exhibit # 2, the copy of the complaint filed on behalf of Ms. Achey, also indicates there are other individuals who reportedly have failed to receive earned wages from the Defendant. Although Exhibit # 2 was not authenticated by extrinsic evidence, Fed. R. Evid. 901(b)(4) permits authentication based solely on “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” See Link v. Mercedes-Benz of North Am., Inc., 788 F.2d 918, 928 & n.9 (3d Cir. 12 alleges that she worked for the Defendant in the fall of 2007, and that she too was deprived of wages. Ms. Stuck also alleges she is “aware of at least one other person who might be interested in joining the case . . . who was not paid any wages, let alone the minimum wage.” Pls.’ Exh. # 5. Also, the declaration from Ms. Sachs notes there have been other claimants seeking compensation from the Defendant for performed work, and this suggests there could be remaining claimants who would willingly join the instant action. Pls.’ Exh. # 4. However, as next will be explained, Plaintiffs’ other exhibits also merit consideration as evidence supporting their Motion. III. Self-Authentication of Official Publications under Fed. R. Evid. 902(5) The Plaintiffs have submitted printed webpages from websites which, if authentic and considered for their substantive truth, suggest there are other claimants who might desire to join the Plaintiffs’ suit. Pls.’ Exhs. ## 1 & 3. Defense counsel did not object to the exhibits, but, during the 1986) (authentication of documents based on “company logos and other trademarks”); Air Land Forwarders, Inc. v. United States, 38 Fed. Cl. 547, 554 (1997) (authentication of document based on letterhead and accompanying signature). Exhibit # 2 was signed by the two attorneys representing Ms. Achey, and the fax number for Ms. Achey’s attorneys is printed at the top of the complaint. Pls.’ Exh. # 2. There also is a time stamp on the complaint, which notes the date the complaint was filed in the District Court of Maryland for Baltimore City. This means that Exhibit # 2, as a copy of a court document, would also be authenticated under Fed. R. Evid. 901(b)(7) (permitting authentication of public records or reports). Consequently, Exhibit # 2 is sufficiently authenticated. Thus, the court cites Exhibit # 2, and the information contained therein, as additional justification for granting the conditional certification. 13 hearing, I observed that these exhibits were authenticated, despite the absence of extrinsic evidence to demonstrate that they were what they purported to be. In Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 537 (D. Md. 2007), this Court noted that accepting electronically stored information (“ESI”) as evidence, whether at trial or in summary judgment, implicates a series of potential evidentiary hurdles. In order to successfully clear the first two hurdles, a proponent of ESI must show that it is relevant under Fed. R. Evid. 401, and afterwards, authentic under Fed. R. Evid. 901(a). Exhibits # 1 and # 3, both of which purport to be printed webpages, easily meet the relevancy requirement. The next issue is whether they have been shown to be authentic. When analyzing the authenticity of evidence, including ESI, Rule 901(a) notes that “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Extrinsic evidence, however, is not always necessary. “Case law and statutes have, over the years, developed a substantial body of instances in which authenticity is taken as sufficiently established for purposes of admissibility without extrinsic evidence . . . because practical considerations reduce the 14 possibility of unauthenticity to a very small dimension.” Fed. R. Evid. 902 advisory committee’s note to the 1972 proposed rules. Under Fed. R. Evid. 902(5), extrinsic evidence of authenticity as a condition precedent to the admissibility of evidence is not required if the evidence is a book, pamphlet, or other publication purporting to be issued by a public authority. This “common-sense provision” is based upon the following notions: One is that official publications seldom contain serious mistakes in the reproduction of official pronouncements or other matters of sufficient interest to warrant official publication. Another is that official publications are likely to be readily identifiable by simple inspection, and that forgery or misrepresentation of such material is unlikely. There are a number of statutes and a provision in the Federal Rules of Civil Procedure which make particular kinds of official publications self-authenticating. 5 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 9:34, at 588 & n.2 (3d ed. 2007) (citing Fed. R. Civ. P. 44(a)(1)-(2) (noting the admissibility of official publications of domestic and foreign records)). Before addressing the applicability of Rule 902(5) to the website postings offered as Exhibits # 1 and # 3, we must first address two issues. First, how is “public authority” defined under the rule? Second, what exactly is an “other publication” as used in the rule? 15 “Rule 902(5) is silent on what level of government must authorize the publication.” 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 902.07[1], at 902-29 (2d ed. Supp. 2008). Even though the rule may be unclear, Rule 902(5) is most often construed to cover the governmental bodies listed in Fed. R. Evid. 902(1), which provides for selfauthentication of domestic publication documents under seal. As such, these entities would be regarded as public authorities: “(1) the United States, (2) any State, (3) any district, commonwealth, territory, or insular possession of the United States, (4) the Panama Canal Zone, (5) the Trust Territory of the Pacific Islands, or (6) a political subdivision, department, officer, or agency of any of the preceding bodies.” 5 Weinstein & Berger, supra, § 902.07[2], at 902-30 & n.4 (citing Fed. R. Evid. 902(1)). As for the second inquiry, it would not be novel to interpret Rule 902(5) to include the self-authentication of “statute books and case reports,” as well as “legislative reports, published transcripts of hearings, maps and surveys, collected statistics, commissioned studies, manuals,” and other data compilation publications from public authorities. 5 Mueller & Kirkpatrick, supra, § 9:34, at 589 & n.4 (citing Gregg v. Forsyth, 65 U.S. 179, 16 L. Ed. 731 (1860); Watkins v. Holman’s Lessee, 41 U.S. 25, 10 L. Ed. 873 (1842); United States v. Aluminum Co. of America, 1 F.R.D. 71 (S.D.N.Y. 1939); United 16 States v. Shafer, 132 F. Supp. 659, 665 (D. Md. 1955), aff’d, 229 F.2d 124 (4th Cir. 1956); Stewart v. United States, 211 F. 41, 45 (9th Cir. 1914)); accord Conjour v. Whitehall Twp., 850 F. Supp. 309, 312 n.1 (E.D. Pa. 1994) (self-authentication of local ordinances and regulations); Biggers ex rel. Key v. S. Ry. Co., 820 F. Supp. 1409, 1415 (N.D. Ga. 1993) (selfauthentication of certified copy of state map from Georgia Department of Transportation). To prove the book, statute, report, or other written material was truly published by a public authority, a proponent may identify any kind of marking or appropriate legend signifying the publication as originating from a qualifying Government Printing Office or by any state government, or a lower agency or department. 5 Mueller & Kirkpatrick, supra, § 9:34, at 590. The next issue is whether, for purposes of Rule 902(5), the posting of information on a website sponsored by a public authority is the functional equivalent of publication. This evidentiary issue was first analyzed by the United States District Court of Ohio, Western Division, in Sannes v. Jeff Wyler Chevrolet, Inc., No. C-1-97-930, 1999 WL 33313134 (S.D. Ohio Mar. 31, 1999). In Sannes, the court sought to determine whether a defendant automobile dealership qualified as a “credit repair organization” for purposes of a suit filed under the Credit Repair Organization Act (“CROA”), 15 U.S.C. §§ 1679 et 17 seq. 1999 WL 33313134, at *1. Claims under CROA, a consumer protection statute engineered to prevent fraud and abuses caused by credit repair organizations, typically involved a business, “‘through advertisements and oral representations,’” leading consumers to believe that “‘adverse information in their consumer reports [could] be deleted or modified regardless of its accuracy.’” Id. at *2 (quoting Consumer Reporting Reform Act of 1994, H.R. Rep. No. 103-486, at 57 (1994)). If the defendant was found to be such an entity, then summary judgment would automatically be granted in favor of the plaintiff. Id. at *1. To prove that auto dealerships were not the “primary target” of Congress when it fashioned CROA, the defendant sought to introduce printed press releases from the Federal Trade Commission’s (“FTC”) website mentioning the FTC’s concerns about “‘bogus credit repair organizations’” and “‘credit repair cons.’” Id. at *3 (citation omitted). Even though the press releases were not attached to any authenticating affidavit, the court recognized they had been printed from a “government [worldwide webpage],” and were therefore self-authenticating under Rule 902(5). Id. at *3 n.3. Thus, for purposes of selfauthentication under Rule 902(5), the Sannes court implicitly recognized the FTC, an agency of a governmental body, as a 18 public authority. As a result, information published by the FTC on its website was deemed to be self-authenticating. Cases following Sannes showed approval of the decision, and a willingness to accept postings on “government websites” as inherently authentic. For example, in Hispanic Broad. Corp. v. Educ. Media Found., No. CV027134CAS (AJWX), 2003 WL 22867633 (C.D. Cal. Oct. 30, 2003), the court noted how “exhibits which consist of records from government websites, such as the FCC website, are self-authenticating.” Id. at *5 n.5 (emphasis added). Subsequently, in Shell Oil Co. v. Franco, No. CV 03- 8846 NM (PJWx), 2004 WL 5615656 (C.D. Cal. May 18, 2004), the court remarked that “records from government websites are selfauthenticating,” and permitted the plaintiff to introduce internet reports from the U.S. State Department website.4 Id. at *5 n.7 (citing Hispanic Broad. Corp., 2003 WL 22867633, at *5). 4See also Estate of Gonzales v. Hickman, No. ED CV 05-660 MMM (RCx), 2007 WL 3237727, at *2 n.3 (C.D. Cal. May 30, 2007) (holding Office of the Inspector General’s report to be self-authenticating due to availability on the Internet); but see In re Poirier, 346 B.R. 585, 588-89 (Bkrtcy. D. Mass. 2006). In the latter case, the United States Bankruptcy Court, District of Massachusetts, was asked to take judicial notice of information posted on the Department of Education’s (“DOE”) website. The court declined this request, noting it would result in a “relaxation of Fed. R. Evid. 902.” In re Poirier, 346 B.R. at 589. The court remarked that the DOE website had too many links to various “documents,” which although part of the website, could not reasonably be identified as “official records,” “reports,” or a “publication issued by a public authority.” Id. (internal quotation marks omitted). These “documents” included: “[E]mergency planning for a pandemic flu, teaching aids, surveys to rate user satisfaction with the DOE website, advice about career colleges and technical schools in addition to information about educational loans.” Id. The correctness of the conclusion reached by the In re Poirier court is questionable. Rule 902(5) provides for selfauthentication of “other publications,” and it is the act of posting information on the Internet by a qualifying public authority that is the act 19 The case of U.S. EEOC v. E.I. DuPont de Nemours & Co., No. Civ.A. 03-1605, 2004 WL 2347559 (E.D. La. Oct. 18, 2004), may prove to be the most helpful case in determining what is selfauthenticating ESI under Rule 902(5). In that case, the defendant sought to exclude the plaintiff’s proposed exhibit—a printout of a table from the website of the U.S. Census Bureau. Id. at *1. The court denied the defendant’s motion, holding that data posted on a government website would be selfauthenticating under the rule. Id. at *2. The E.I. DuPont court provided an explanation as to how a court might identify what types of data located on a government website could be accepted as authentic under Rule 902(5): Exhibit 552 is a table of information compiled by the United States Census Bureau based on data gathered in 1997 regarding employment of persons with disabilities. According to the EEOC, it shows that some 733,000 persons who required an assistive device or wheelchair to ambulate were employed in 1997 in the United States. The exhibit has been printed from the internet website of the U.S. Census Bureau, and contains the internet domain address from which the image was printed and the date on which it was printed. The exhibit also clearly indicates that the source of the information is August-November 1997 data from the Survey of Income and Program Participation. of publication. Because the DOE is a department of one of the governmental bodies listed in Rule 902(1), then the DOE would also be considered a public authority. Thus, when the DOE posted information on its site, it vouched for its authenticity, thereby making it self-authenticating under Rule 902(5). There is nothing in the rule that states the public authority publishing the information (whether in print form, or online) must originate the information posted. Rather, the publication must have actually been approved by the public authority, or, as some would say, “made official.” Thus, the information’s adoption by reference by the public authority seems sufficient to meet the requirements of Rule 902(5). 20 . . . . . . . [T]he Court finds that the EEOC has submitted evidence sufficient to authenticate the exhibit. Rule 901(a) states that the requirement of authentication “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The exhibit contains the internet domain address from which the table was printed, and the date on which it was printed. The Court has accessed the website using the domain address and has verified that the webpage printed exists at that location. The Court also notes that the webpage is maintained on a government website, and, according to Rule 902(5), “publications purporting to be issued by public authority” are self authenticating. The Court thus finds that the EEOC has provided evidence sufficient to authenticate the exhibit. Id. at *1-2 (emphasis added) (citations omitted). Clearly, the court accepted the printout containing the “internet domain address” and the “date on which it was printed” as sufficient for authentication under Rule 901(a), and because the webpage was available on a government website, concluded that this would also permit self-authentication under Rule 902(5). These two points are not mutually exclusive, however. A proponent of ESI could use the URL, date, and/or official title on a printed webpage to show that the information was from a public authority’s website, and therefore, self-authenticating. Similarly, the public authority’s selection of the posted information for publication on its website will act as the necessary “seal of approval” needed to establish that the 21 information came from a public authority for purposes of Rule 902(5). Cf. Schaghticoke Tribal Nation v. Kempthorne, No. 3:06- cv-00081 (PCD), 2008 WL 4000179, at *3 (D. Conn. Aug. 26, 2008) (noting government press release was self-authenticating because petitioner included the web address for press releases in its Local Rule 56(a)(1) statement, thereby allowing the court to verify that the press release in the record was a copy of an official document issued by a public authority). IV. Plaintffs’ Exhibits # 1 and # 3 are Self-Authenticating A. The Maryland Judiciary Case Search Results – Exhibit # 1 The printed webpage from the Maryland Judiciary Case Search website is self-authenticating under Rule 902(5) for the reasons discussed above. First and foremost, the Maryland Judiciary is a branch of the Maryland State Government; therefore, any online “official publication” issued by the Maryland Judiciary would be self-authenticating. See Fed. R. Evid. 902(1), (5). Second, the URL on the top of the printed webpage identifies that the results are in fact from the website. Third, the first page features a caption, stating, “Maryland Judiciary Case Search Results,” and the next page states, “District Court of Maryland.” Accordingly, there is no doubt that these results were published on the website of a public authority. Thus, they are self-authenticating. 22 B. MDLLR - Employment Standards Service Results – Exhibit # 3 The printed webpage from the Employment Standards Service website could also be considered a self-authenticating “official publication.” The website is hosted by a subdivision of a state agency, and the information contained in the printed webpage is comparable to the printed data found to be self-authenticating, and admissible, in E.I. DuPont. In particular, the URL on the webpage identifies the correct website, and the agency’s name is printed preceding the search results. As noted at the hearing, Plaintiffs’ counsel was required to make a demand under the MPIA to obtain a copy of Exhibit # 3, as it is from a restricted portion of the website that is not available to the public. With this point in mind, it is important not to confuse “publication,” as used by Rule 902(5), with “unrestricted publication to the general public.” In Wolf Lake Terminals, Inc. v. Mutual Marine Ins. Co., 433 F. Supp. 2d 933, 944 (N.D. Ind. 2005), the court found two U.S. Government documents, both obtained through the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2008), to be self-authenticating. See also Schmutte v. Resort Condominiums Int’l, LLC, No. 1:05-cv- 0311-LJM-WTL, 2006 WL 3462656, at *14 (S.D. Ind. Nov. 29, 2006) (Department of Labor file, produced pursuant to the FOIA, found to be self-authenticating under Rule 902(5)). Rule 902(5) imposes no requirement that an official publication be available 23 without restriction to the general public, and simply because additional measures, such as an FOIA request or subpoena under Fed. R. Civ. P. 45, must be employed to gain access to the publication does not mean the document is not selfauthenticating. It would serve no legitimate purpose to require a proponent of an exhibit that facially meets the requirements of Rule 902(5) to go to the added trouble and expense of calling a witness or producing an affidavit to prove how the proponent obtained a copy of the document. Thus, if information is published on a website by a public authority and that information is obtained through the FOIA (or, as in this case, an equivalent state act), then that printed information would be self-authenticating under Rule 902(5). V. Exhibits # 1 and # 3 Meet the Requirements of the Fed. R. Evid. 803(8) Hearsay Exception In addition to showing relevancy and authenticity, it is also necessary to consider whether Exhibits # 1 and # 3 are hearsay, see Fed. R. Evid. 801-02; Lorraine, 241 F.R.D. at 537, and if so, whether the exhibits would fall under a recognized exception to the rule. See Fed. R. Evid. 803. Clearly the exhibits are hearsay, for they are proffered for the truth of their substantive content. See Fed. R. Evid. 801(c). However, they are admissible as public records under 24 Fed R. Evid. 803(8). Lorraine, 241 F.R.D. at 574-75. Under this section, the following are exempt from the hearsay rule: Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Fed. R. Evid. 803(8). Justification for this exception derives from the trustworthiness of the documents themselves, having been made by a public office or agency, as well as the inherent necessity to avoid requiring public officials to needlessly testify as witnesses about reports, data compilations, records, or statements made in their official capacities. 4 Mueller & Kirkpatrick, supra, § 8:86, at 770-72. The documents are considered trustworthy due to the “duty that comes with public service,” and it is presumed that public officials execute their tasks “carefully and fairly, without bias or corruption, and this notion finds support in the scrutiny and risk of exposure that surround most government functions.” Id. at 770-71. Absent the exception found at Rule 803(8), lawyers seeking to prove facts contained within official records would be forced to call public officials as witnesses to provide testimony 25 regarding the contents of the official records. This would, of course, be burdensome and divert the efforts of officials called as witnesses from performing their public duties. Id. at 771. With Rule 803(8), the information can be easily gleaned from the public records themselves, and has the added benefit of permitting proof of facts that might otherwise not be remembered by the author of the public record, or if no longer employed by the public agency, beyond the personal knowledge of any current official. Id. Moreover, ample authority, long predating the current preoccupation with ESI, supports the relationship between authentication under Rule 902(5) and admissibility under Rule 803(8). See, e.g., Citizens Against Longwall Mining v. Colt LLC, No. 05-3279, 2008 WL 927970, at *3 (C.D. Ill. Apr. 7, 2008) (Illinois State Geological Survey bulletin); Tommaseo v. United States, 75 Fed. Cl. 799, 806 (2007) (National Hurricane Center report); Cherry Hill Vineyards, LLC v. Hudgins, 488 F. Supp. 2d 601, 610 (W.D. Ky. 2006) (FTC report); Mueller v. First Nat. Bank of the Quad Cities, 797 F. Supp. 656, 657-58 (C.D. Ill. 1992) (two booklets published by the Comptroller of Currency and news release of bank president’s remarks); California Ass’n of Bioanalysts v. Rank, 577 F. Supp. 1342, 1355 n.23 (C.D. Cal. 1983) (U.S. Department of Health and Human Services reports). 26 Finally, the E.I. DuPont court responded to any critics who might question the trustworthiness of public records found on the Internet, noting, “‘Public records and government documents are generally considered not to be subject to reasonable dispute,’ and ‘[t]his includes public records and government documents available from reliable sources on the Internet.’” 2004 WL 2347559, at *1 (quoting In re Dingle, 270 F. Supp. 2d 968, 971 (W.D. Mich. 2003)); accord Paralyzed Veterans of Am. v. McPherson, No. C 06-4670 SBA, 2008 WL 4183981, at *7 (N.D. Cal. Sept. 9, 2008) (citing Lorraine, 241 F.R.D. at 551). “‘[I]n an age where so much information is calculated, stored and displayed on a computer, massive amounts of evidence would be inadmissible’” if courts were to willingly accept a portrayal of all potential evidence located on the Internet as “inherently unreliable.” E.I. DuPont, 2004 WL 2347559, at *1 (quoting Chapman v. San Francisco Newspaper Agency, No. C-01-02305 CRB, 2002 WL 31119944, at *2 (N.D. Cal. Sept. 20, 2002)). Of course, Rules 902(5) and 803(8) deal with threshold admissibility, not the weight afforded by the fact finder to the copies of online public records. The party against whom the evidence is admitted is free to attack its credibility or weight with all the concerns about reliability that often are directed against admissibility. See Fed. R. Evid. 104(e). 27 Exhibits # 1 and # 3 would justify certification in this case. With the exception of the two settled claims on each exhibit, see supra nn.1-2, the printed webpages indicate there are claimants who have filed suits against “Charm City Cupcakes” for unpaid wages and contract claims. Even taking into account that these suits are not overly descriptive, they do show there is at least a potential class of similarly situated plaintiffs in existence. Therefore, certification is justified. VI. Conclusion For the reasons stated during the hearing and expanded upon above, the Plaintiffs’ Motion is granted. The Defendant is ordered to produce to the Plaintiffs the employment and wage records, containing names and last known addresses, for all of Defendant’s employees, workers, or laborers of any status, from January 2006 to the present. After this production, the parties will confer and reach an agreement on the notice to be sent to the employees, and will provide the court with a copy of this notice. The notice will be sent via first-class mail to the last known addresses of the employees, who will then have thirty days to opt-in to the suit. A separate order shall issue this date. November 7, 2008 ______/S/______ Paul W. Grimm United States Magistrate Judge

What is takes to win a Products Liability Claim

To successfully prosecute a products liability claim, a party must prove: 1. The prodcut has a defect which renders it unreasonably dangerous based on its design  or 2. Deficiency in its manufacture, or 3. Failure to warn of dangers and use The case below applies these principles to a drug case. THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND * JAMES MACK, et al., * Plaintiffs, * Civil Action No.: RDB-08-688 v. * AMERISOURCEBERGEN DRUG CORPORATION, et al., * Defendants. * * * * * * * * * * * * * * MEMORANDUM OPINION Plaintiffs James and Sylvia Mack, on behalf of their daughter Crystal Mack, have brought the instant products liability suit against Defendants AmerisourceBergen Drug Corporation (“AmerisourceBergen”), Centocor, Inc. (“Centocor”), and Johnson & Johnson, Inc. (“Johnson & Johnson”) (collectively, “Defendants”). Plaintiffs claim that Crystal Mack died after suffering from a cardiac arrhythmia that was caused by her use of Remicade, a prescription medication primarily used to treat Crohn’s disease, which is developed and manufactured by Johnson & Johnson’s pharmaceutical segment, Centocor, and distributed by AmerisourceBergen. Currently pending before this Court is Defendants’ Motion for Summary Judgment (Paper No. 50). In addition, both parties have filed motions in limine to exclude expert witnesses. See Defendants’ Motion in Limine to Exclude the Testimony of James T. O’Donnell, Dr. Donald H. Marks and Dr. William L. Manion (Paper No. 51); Plaintiffs’ Motion in Limine to Exclude the Testimony of David Sachar, M.D., Raymond M. Cross, M.D., and Barbara Matthews, M.D., M.P.H. (Paper No. 53). Hearings were conducted on September 15 and November 2 of 2009, pursuant to Daubert v. Merrell Dow Pharmacies, Inc., 509 U.S. 579 2 (1993), to consider the admissibility of the testimony of Plaintiffs’ experts, Dr. Donald H. Marks and Dr. William L. Manion. Finally, on November 3, 2009, a hearing was convened to hear argument on the Defendants’ Motion for Summary Judgment. Even with consideration of the proffered testimony of the Plaintiffs’ experts Dr. Marks and Dr. Manion,1 there is simply insufficient evidence of any defect, misrepresentation, breach of contract, or non-compliance with state licensure and permit requirements, which would create a genuine issue of material fact. Accordingly, for the reasons stated below, this Court rules that Defendants’ Motion for Summary Judgment (Paper No. 50) is GRANTED. BACKGROUND The facts are viewed in a light most favorable to the Plaintiffs, as the non-moving party. See Matsushita Elec. Indus. Co. Ltd v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In 2006, at the age of 25, Crystal Ann Mack was diagnosed with a severe form of Crohn’s disease—an inflammatory disease affecting the gastrointestinal tract. In the autumn of 2006, Ms. Mack was hospitalized on two occasions and ultimately diagnosed with anemia, bloody diarrhea, vomiting, weight loss, leukocytosis, depression, electrolyte imbalances, and tachycardia. To alleviate the symptoms of Ms. Mack’s Crohn’s disease, her treating physician, Dr. Lisa Pichney, recommended that Ms. Mack undergo Remicade treatments. On November 16, 2006, Mack received her first infusion of Remicade at the St. Joseph Medical Center’s Seprick Infusion Center. In the subsequent months, she received three 1 Plaintiffs submitted three expert witnesses: James T. O’Donnell, Dr. Donald H. Marks, and Dr. William L. Manion. Defendants have moved to exclude the testimony of these witnesses, claiming that their testimony does not comport with the standards for admissibility established in Daubert v. Merrell Dow Pharmacies, Inc., 509 U.S. 579 (1993). At a hearing conducted on December 18, 2008, this Court ruled that O’Donnell was not qualified to serve as an expert in the present case and his testimony was excluded as inadmissible. Dr. Marks’ testimony was ultimately deemed admissible after a Daubert hearing was conducted on September 15, 2009. On November 2, 2009, another Daubert hearing was conducted to weigh the admissibility of Dr. Manion’s testimony. For purposes of ruling on Defendants’ Motion for Summary Judgment, this Court assumes, without deciding, that Dr. Manion’s testimony satisfies the standards of admissibility under Daubert. 3 additional infusions, in accordance with the medication’s dosing instructions. Although she initially reported improvements in her health after receiving Remicade, Ms. Mack continued to require hospitalization for weakness, fatigue, and intestinal bleeding. Laboratory tests conducted in January and February of 2007 indicated that Ms. Mack was anemic and had electrolyte imbalances. In addition, her body weight remained under 80 pounds during this period. On April 12, 2007, Ms. Mack reported to Dr. Pichney that she was bleeding from her intestines, and they scheduled another office visit. However, on April 17, 2007, before returning to Dr. Pichney, Ms. Mack fell unconscious in her home and subsequently died. Ms. Mack’s body was then transported to the Office of the Medical Examiner, where an autopsy was performed by Dr. J. Laron Locke, an assistant medical examiner. Dr. Locke concluded that Ms. Mack’s death resulted primarily from “intestinal hemorrhage due to Inflammatory Bowel Disease” and that diabetes mellitus was a contributing factor in her death. (Autopsy Report, p. 5, Exhibit C to Affidavit of John D. Winter (“Winter Aff.”).) Plaintiffs James and Sylvia Mack, have brought the instant products liability action to recover for the death of their daughter.2 On March 27, 2009, Plaintiffs’ First Amended Complaint was filed in this Court that set forth seven causes of action against Defendants Johnson & Johnson, Centocor, and AmerisourceBergen. Specifically, Plaintiffs bring claims for strict products liability in Count One, fraud and misrepresentation in Count Two, breach of express and implied warranty in Count Three, negligent design and manufacture in Count Four, breach of contract in Count Five, and claims for wrongful death in Counts Six and Seven. Finally, in their brief in opposition to summary judgment, Plaintiffs claim that Defendants failed 2 Plaintiffs originally filed suit against Defendants in the Circuit Court for Baltimore City. Defendants removed the case to this Court pursuant to 28 U.S.C. § 1441 on the basis of complete diversity between the parties. Plaintiffs have also brought a lawsuit against the health care providers for Crystal Mack, which is currently pending in the Circuit Court for Baltimore County (Case No. 03-C-09-003030). 4 to comply with Maryland licensing and permit statutes. Plaintiffs’ suit is based upon the theory that Ms. Mack died of a cardiac arrhythmia that was proximately caused by her use of Remicade, a drug that is developed and manufactured by Johnson & Johnson’s pharmaceutical segment, Centocor, and distributed by AmerisourceBergen. STANDARD OF REVIEW Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment Ashall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.@ Fed. R. Civ. P. 56(c). A material fact is one that Amight affect the outcome of the suit under the governing law.@ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue over a material fact exists Aif the evidence is such that a reasonable jury could return a verdict for the nonmoving party.@ Id. In considering a motion for summary judgment, a judge=s function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249. In undertaking this inquiry, a court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). After the moving party has established the absence of a genuine issue of material fact, the nonmoving party must present evidence in the record demonstrating an issue of fact to be resolved at trial. Pension Ben. Guar. Corp. v. Beverley, 404 F.3d 243, 246-47 (4th Cir. 2005) (citing Pine Ridge Coal Co. v. Local 8377, UMW, 187 F.3d 415, 422 (4th Cir. 1999)). Summary judgment will be granted if the nonmoving party Afails to make a showing sufficient to establish the existence of an element essential to that party=s case, 5 and on which that party will bear the burden of proof at trial.@ Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). This Court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (quoting Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)). If the evidence presented by the nonmoving party is merely colorable, or is not significantly probative, summary judgment must be granted. Anderson, 477 U.S. at 249-50. This Court has previously explained that a Aparty cannot create a genuine dispute of material fact through mere speculation or compilation of inferences.@ Shin v. Shalala, 166 F. Supp. 2d 373, 375 (D. Md. 2001) (citations omitted). ANALYSIS Defendants have moved this Court to enter summary judgment against Plaintiffs on the basis that Plaintiffs have failed to present sufficient evidence to create an issue of material fact on any of their claims. This Court first addresses Plaintiffs’ products liability claims before turning to their remaining causes of action for misrepresentation, breach of contract, and failure to comply with state licensing laws. Because jurisdiction is based on diversity of citizenship, this Court applies Maryland law in deciding this Motion for Summary Judgment. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (AExcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.@); Limbach Co., LLC v. Zurich Am. Ins. Co., 396 F.3d 358, 361 (4th Cir. 2005) (AThe district court must apply the law of the forum state, including its choice of law rules.@). I. Product Liability Claims 6 Plaintiffs have asserted product liability claims in Counts One, Three and Four of their Amended Complaint. Maryland law provides that “‘the plaintiff in product liability litigation must satisfy three basics from an evidentiary standpoint: 1) the existence of a defect; 2) the attribution of the defect to the seller; and 3) a causal relation between the defect and the injury.’” Giddings v. Bristol- Myers Squibb Co., 192 F. Supp. 2d 421, 423 (D. Md. 2002) (quoting Jensen v. American Motors, Corp., 50 Md. App. 226, 234, 437 A.2d 242, 247 (Md. Ct. Spec. App. 1981)). This same evidentiary showing is required regardless of the asserted theory underlying the claim of products liability. See Pease v. American Cyanamid Co., 795 F. Supp. 755, 758 n.3 (D. Md. 1992). Defendants contend that Plaintiffs’ failure to make a satisfactory showing with respect to the elements of defect and causation is fatal to their claims for strict liability, negligence, and breach of warranty. Plaintiffs’ products liability claims cannot survive summary judgment because they cannot establish that Remicade is a defective product. Counsel for the Plaintiffs have made great efforts to prove specific and general causation, but they have made no showing with respect to the issue of defect. Because a showing of defect is an independent prerequisite for a products liability claim, this Court need not address whether Plaintiffs have satisfied their burden on the issue of causation. “In order to recover on a product defect claim, a plaintiff must prove that a defect which renders the product unreasonably dangerous might arise from the design of the product, a deficiency in its manufacture, or from the absence or inadequacy of any instructions or warnings as to its safe and appropriate use.” Murphy v. Playtex Family Prods. Corp., 69 Fed. Appx. 140, 143 (4th Cir. June 26, 2003) (unpublished) (citing Simpson v. Standard Container Co., 72 Md. 7 App. 199, 203, 527 A.2d 1337, 1339-40 (Md. Ct. Spec. App. 1987)). Plaintiffs have not alleged a failure to warn case.3 Instead, their allegations focus on the contention that Remicade “was being manufactured and distributed in a defective condition.” (Amend. Compl. ¶ 15.) To prove that a product is defective, a plaintiff must establish that it is “unreasonably dangerous.” Pease, 795 F. Supp. at 758 (citing Phipps v. General Motors Corp., 278 Md. 337, 344, 363 A.2d 955, 959 (Md. 1976)). Under Maryland law, courts may apply both the “risk/utility” test and the “consumer expectation” test when evaluating the efficacy of design defect claims.4 Murphy v. Playtex Family Prods. Corp., 176 F. Supp. 2d 473, 488-89 (D. Md. 2001). The “risk/utility” test involves an assessment of “whether the benefits of a product outweigh the dangers of its design.” Tannebaum v. Yale Materials Handling Corp., 38 F. Supp. 2d 425, 430 (D. Md. 1999); see also Simpson, 527 A.2d at 1340 (“[u]nder the ‘risk-utility’ test, a product is defective as designed if the risk or danger of the product outweighs the product’s utility”). Alternatively, a drug could be deemed unreasonably dangerous if it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Phipps, 363 A.2d at 959. Plaintiffs’ allegations of defect are not substantiated by the evidence in the record. In their brief in opposition to Defendants’ motion for summary judgment, Plaintiffs merely cite the legal standards for alleging and proving defect, and reiterate the relevant allegations contained in their Amended Complaint. As a result, Plaintiffs have clearly fallen short of the standard in Federal Rule of Civil Procedure 56(e), which provides that “an opposing party may not rely 3 During the motions hearing held on December 18, 2008, Plaintiffs’ counsel conceded that their product liability actions did not include a failure to warn claim. (Transcript of December 18, 2008, 22:18-19, Exhibit J to Winter Aff.) 4 Plaintiffs maintain that the issue of defect may only be assessed under the “consumer expectation” theory, whereas Defendants claim that only the “risk/utility” test properly applies in the present case. However, this dispute need not be addressed, as this Court finds that Plaintiffs’ claims cannot pass muster under either test. 8 merely on the allegations or denials in its own pleading,” but must instead “set out specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The evidentiary deficiencies in Plaintiffs’ case are glaring in light of the fact that Plaintiffs have failed to present expert testimony on the issue of defect. While the testimony of Doctors Marks and Manion largely focuses on the issue of causation, neither have contended that Remicade is unreasonably dangerous. This shortcoming is especially damaging to Plaintiffs’ claims, because the issue of defect in this case “involves technical medical questions beyond the common knowledge of laypersons.” Miskin v. Baxter Healthcare Corp., 107 F. Supp. 2d 669, 672 (D. Md. 1999); see also Virgil v. “Kash N’ Karry” Serv. Corp., 61 Md. App. 23, 31, 484 A.2d 652, 656 (Md. Ct. Spec. App. 1984) (noting that expert testimony is “required when the subject of the inference is so particularly related to some science or profession that it is beyond the ken of the average layman”). Indeed, some of the expert testimony proffered by Plaintiffs instead seems to belie the allegations of defect contained in their Amended Complaint. Plaintiffs conceded at the hearing on summary judgment that Dr. Marks would not consider Remicade to be unreasonably dangerous, as he routinely oversees the administration of the medication to patients. In the absence of any direct evidence or expert testimony on the issue of defect, Plaintiffs must rely upon circumstantial evidence. At the hearing on summary judgment on November 3, 2009, Plaintiffs’ counsel proffered several miscellaneous documents, including internal corporate memoranda and correspondence from Centocor that referred to the exhibited side effects of Remicade. However, such documents do not militate for the submission of the defect issue to a jury. The fact that a drug may exhibit certain adverse side effects does not, by itself, create an 9 issue of material fact on whether the drug is unreasonably dangerous. This Court has previously recognized that all drugs involve risks of adverse side effects in those who take them. See Perlov v. G.D. Searle & Co., 621 F. Supp. 1146, 1148 (D. Md. 1985). In Perlov this Court specifically observed that “[j]ust as in medical malpractice cases, where every bad result is not evidence of negligence, so too with drugs and medical devices: every side effect or adverse reaction does not indicate . . . that the product is unreasonably dangerous and defective.” Id. The United States Food and Drug Administration (“FDA”) approved Remicade for marketing for the treatment of Crohn’s disease in August of 1998, and has reaffirmed the safety and efficacy of Remicade on more than ten occasions.5 (Affidavit of Suzanne B. Travers, M.D. (“Travers Aff.”), at ¶¶ 2-4.) Remicade has also been approved for the treatment of rheumatoid arthritis, ankylosing spondylitis, psoriatic arthritis, ulcerative colitis and plaque psoriasis. (Id. at ¶¶ 2-5.) In the eleven years since it was first approved for marketing, more than one million patients have received Remicade. (Id. at ¶ 18.) In the face of the drug’s apparent advantages, Plaintiffs would need to provide a much greater evidentiary showing to establish that the medication’s attendant risks outweigh its benefits—a necessary showing under the “risk/utility” test. In addition, Plaintiffs have not alleged, let alone substantiated, any claim that the Defendants failed to provide adequate warnings with respect to the risks associated with Remicade and heart failure—a showing that is often required under the “consumer expectation” 5 Plaintiffs cite to the recent decision of the United States Supreme Court in Wyeth v. Levine, 129 S. Ct. 1187, 173 L. Ed. 2d 51 (2009) in support of their argument that Defendants cannot rely upon FDA’s risk-benefit approval test as evidence that Remicade is not unreasonably dangerous. In Levine, the Supreme Court assessed “whether the FDA’s drug labeling judgments preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.” Levine, 129 S. Ct. at 1193 (internal quotation omitted). The Court held that the defendant drug manufacturer was not entitled to a complete defense against a plaintiff’s state law failure-to-warn claim merely because the FDA approved the drug label at issue. Thus, federal law does not preempt state common law failure-to-warn claims based on FDA-approved labeling. Levine is distinguishable from the instant case in that Plaintiffs have not asserted a failure-to-warn claim. Moreover, to resolve Plaintiffs’ product liability claims, this Court has applied Maryland law. Under Maryland law, the Plaintiff bears the burden of establishing that a drug is unreasonably dangerous, and in the present case, Plaintiffs have failed to present an issue of material fact on this issue. 10 test. See Murphy, 176 F. Supp. 2d at 487-89 (denying plaintiffs’ defect claim under the “consumer expectation” test after finding that the defendant manufacturer had provided consumers with legally adequate warnings). In sum, Plaintiffs’ proffered circumstantial evidence is far too tenuous and anecdotal to create an issue of material fact as to defect, and could not permit a reasonable juror to infer that Remicade is an unreasonably dangerous drug. At the summary judgment stage, courts are obligated to enter summary judgment against claims that are not sufficiently substantiated or unduly based upon speculation and conjecture. See Lee v. Baxter Healthcare Corp., 721 F. Supp. 89, 96 (D. Md. 1989) (“Proof of a defect in a products liability case must rise above speculation and recovery cannot be predicated on a presumption from the mere happening of an accident.”) (citing Jensen, 437 A.2d at 245). Because Plaintiffs fail to make a showing of defect, summary judgment must be entered in favor of the Defendants on the product liability claims set forth in Counts One, Three and Four. II. Misrepresentation Claim In Count Two of their Amended Complaint, Plaintiffs set forth a claim of misrepresentation and fraud. Under Maryland law, to establish a claim of fraud or misrepresentation, a plaintiff must show that 1) the defendant made a false representation to the plaintiff, 2) its falsity was either known to the defendant or the representation was made with reckless indifference as to its truth, 3) the misrepresentation was made for the purpose of defrauding the plaintiff, 4) the plaintiff relied on the misrepresentation and had the right to rely upon it, and 5) the plaintiff suffered injury resulting from the misrepresentation. See, e.g., Hoffman v. Stamper, 385 Md. 1, 28, 867 A.2d 276, 292 (Md. 2005). 11 In addition, Federal Rule of Civil Procedure 9(b) provides that plaintiffs must “state with particularity the circumstances constituting fraud or mistake.” Towards this end, a plaintiff must provide “the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999). Accordingly, “a court should hesitate to dismiss a complaint under Rule 9(b) if the court is satisfied (1) that the defendant has been made aware of the particular circumstances for which she will have to prepare a defense at trial, and (2) that plaintiff has substantial prediscovery evidence of those facts.” Id. The claims of fraud and misrepresentation asserted in Count Two of the Amended Complaint have not been alleged with sufficient particularity. The language in the Amended Complaint merely states that Defendants made “false representations that the drug was safe and that [Crystal Mack] needed the Remicade treatments.” (Amend. Compl. ¶ 59.) In addition, Plaintiffs allege that “Accessone, the agent[] . . . of these Defendants deceived Crystal Mack into taking unneeded treatments of Remicade to increase sales of Remicade and make profits from Medicaid patients, such as Mack.” (Id. at ¶ 58.) Plaintiffs have not specified the time, place, and content of any particular misrepresentation. Nor have they linked any misrepresentation to any one of the Defendants. Adams v. NVR Homes, Inc., 193 F.R.D 243, 250 (D. Md. 2000) (“A complaint fails to meet the particularity requirements of Rule 9(b) when a plaintiff asserts merely conclusory allegations of fraud against multiple defendants without identifying each individual defendant's participation in the alleged fraud.”). Furthermore, even assuming, arguendo, that Plaintiffs have properly pled actions for fraud and misrepresentation, these claims are not borne out by the evidence in the record. At his deposition, Mr. Mack conceded that Centocor did not make any misrepresentation to him and he 12 stated that he was not aware of any misrepresentation made to Ms. Mack. (March 10, 2009 Deposition of James Mack, 58:13-22, 56:9-58:12, 59:14-20.) Mrs. Mack only recalled viewing a video and pamphlet about Remicade. (March 10, 2009 Deposition of Sylvia Frances Stewart- Mack, 84:12-86:21; 111:12-112:20.) However Plaintiffs have not been able to identify any misrepresentation in the Remicade pamphlet and video that Ms. Mack viewed at the St. Joseph Medical Center. (Exhibit M to Winter Aff.) Finally, none of the Macks reviewed the Remicade video and pamphlet before Ms. Mack was prescribed with the drug by Dr. Pichney. Therefore, Plaintiffs cannot establish that they relied on any information provided by any of the Defendants prior to when Ms. Mack decided to begin her Remicade treatments. Accordingly, summary judgment is entered in favor of the Defendants on the fraud and misrepresentation claim set forth in Count Two. III. Breach of Contract In Count Five, Plaintiffs allege that Crystal Mack entered into a contract with AccessOne, an agent of Defendants Johnson & Johnson and Centocor, which served as a “single source support for access to infusion therapy” for Remicade. (Amend. Compl. ¶¶ 7, 79.) They contend that “Defendants breached the contract by not advising Crystal Mack that she should have discontinued the treatment at 14 weeks, that therapy should be closely monitored, and that she was experiencing adverse reactions from the use of the drug at their infusion centers.” (Id. at ¶ 81.) Prior to receiving her first Remicade treatment, Ms. Mack signed a “Patient Authorization Form” that allowed her doctors and insurers to provide her medical information to the Lash Group, which administered AccessOne for Centocor. (Exhibit D to Winter Aff. at p. 371.) Even if it could be said that Ms. Mack entered into a contract with AccessOne and 13 Centocor by signing the authorization form, Plaintiffs have failed to present any evidence of breach. Plaintiffs allege that AcessOne promised to provide “assistance, guidance, counseling, and therapy follow-up regarding Remicade,” Amend. Compl. ¶ 79, but such promises are not contained in the language of the authorization form. Instead the form merely provides that the Lash Group would “help find ways to pay” for Ms. Mack’s Remicade treatments. (Id.) Moreover, the Benefit Investigation Form for Remicade and the Primary Insurance Verification of Benefits for Remicade, included explicit disclaimers noting, among other things, that the “Lash Group and Centocor make no representation or guarantee that full or partial insurance reimbursement or any other payment will be available.” (Exhibit D to Winter Aff. at pp. 374, 376.) Finally, and most importantly, there can be no claim of breach because Ms. Mack was fully reimbursed for her Remicade infusions. Accordingly, summary judgment is entered in favor of the Defendants on the breach of contract claim set forth in Count Five. IV. Alleged Violation of Maryland Licensing and Permit Statutes In their brief in opposition to summary judgment, Plaintiffs contend that Defendants failed to comply with Maryland licensure requirements.6 More specifically they claim that AmerisourceBergen was not licensed to distribute Remicade in Maryland in 2006 and 2007, and that Centocor and Johnson & Johnson are operating illegally in the state because they are not registered properly to pay taxes. (Opp. Mem. at 8, 14, 16-22.) Defendants have clearly confirmed, through evidence in the record, that they have not violated the relevant statutes and licensure requirements of the State of Maryland. AmerisourceBergen complied with The Wholesale Distributor Permitting and Prescription Drug 6 None of the allegations in Plaintiffs’ Amended Complaint refer to any violation of Maryland licensure requirements. 14 Integrity Act, Md. Code Ann., Health Occ. § 12-6C-03, as it held the requisite distribution permits in 2006 and 2007, when Ms. Mack received Remicade. (Affidavit of Michael Kody (“Kody Aff.”), at ¶ 4.) In addition, Centocor and Johnson & Johnson are not required to register in Maryland because they do not qualify as “doing business” in the state as defined by the relevant registration codes. See Md. Code Ann., Corps. and Assocs. § 7-202, 203; see also G.E.M., Inc. v. Plough, Inc., 118 Md. 484, 488, 180 A.2d 478, 480 (Md. 1962) (noting that a foreign drug manufacturer soliciting orders in Maryland through company representatives is not “doing business” in Maryland). Finally, even if Defendants could be said to violate the state licensure requirements, Plaintiffs’ claims would still fail, as the statues requiring licensing and registration with the Board of Pharmacy and the State Department of Assessments and Taxation do not provide for a private cause of action. See Md. Code Ann., Health Occup. § 12-707(b); Md. Code Ann., Corps. & Assocs. § 7-301, 302. V. Wrongful Death Claims Plaintiffs James and Sylvia Mack have asserted wrongful death claims under Counts Six and Seven, respectively, pursuant to the Maryland Wrongful Death Statute. See Md. Code Ann., Cts. & Jud. Proc. § 3-904. These wrongful death claims fail because Plaintiffs have not established any independent basis upon which to impose liability on Defendants for the death of Crystal Mack. VI. There is No Basis for Liability against Johnson & Johnson This Court holds that Plaintiffs’ claims cannot survive summary judgment because there is insufficient evidence of any product defect, misrepresentation, breach of contract, or noncompliance with Maryland licensure and permit requirements. Nevertheless, even if Plaintiffs could support a claim against Centocor or AmerisourceBergen, there would be no basis upon 15 which to hold Johnson & Johnson liable. Plaintiffs aim to attach liability on Johnson & Johnson solely on the grounds that it is the parent company of Centocor, which is the developer and manufacturer of Remicade. It remains “a general principle of corporate law deeply ingrained in our economic and legal systems that a parent corporation . . . is not liable for the acts of its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61 (1998) (internal quotation omitted). Plaintiffs have not cited any evidence showing that Johnson & Johnson participated in any conduct that allegedly caused Ms. Mack’s death. In addition, Plaintiff s have provided no justification for disregarding the parent/subsidiary distinction, as they cannot show that the corporate form was being misused for some improper purpose. Id. at 62-63. CONCLUSION For the foregoing reasons, Defendants’ Motion for Summary Judgment (Paper No. 50) is GRANTED. A separate Order follows. Date: November 24, 2009 /s/____________________ Richard D. Bennett United States District Judge 16 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND * JAMES MACK, et al., * Plaintiffs, * Civil Action No.: RDB-08-688 v. * AMERISOURCEBERGEN DRUG CORPORATION, et al., * Defendants. * * * * * * * * * * * * * * ORDER AND JUDGMENT For the reasons stated in the foregoing Memorandum Opinion, it is this 24th day of November, 2009, ORDERED and ADJUDGED, that: 1. The Motion for Summary Judgment (Paper No. 50) filed by Defendants AmerisourceBergen Drug Corporation, Centocor, Inc., and Johnson & Johnson, Inc. is GRANTED; 2. That judgment BE, and hereby IS, entered in favor of the Defendants and against the Plaintiffs; 3. The Clerk of the Court transmit copies of this Order and accompanying Memorandum Opinion to the parties; and 4. The Clerk of Court CLOSE this case. /s/____________ __ Richard D. Bennett United States District Judge 17

Whiplash Injuries and Prognosis

Whiplash Injuries - Getting Treatment Right Away is Important

As a Maryland car accident lawyer, I often review medical records for personal injury victims in the preparation of a case. All too often, victims of less serious car accidents wait days before seeking medical assistance. This could be devastating to not only their potential for recovery in the case, but more importantly in their long term health. A study by the Georgia Institute  concluded that "recovery occurs for a substantial proportion of subjects in the initial 3 months after the accident but after this time recovery rates level off. Pain and disability symptoms also reduce rapidly in the initial months after the accident but show little improvement after 3 months have elapsed." For more on this report go the National Institutes of Health Public Library. Minor car accidents such as fender benders and other low impact accidents often result in what is commonly known as whiplash injuries. The injuries occur due to sudden extension and flexion of the neck and surrounding parts of the body.

Whiplash Symptoms

These are the most common symptoms of whiplash:
  1.  Neck pain
  2. Headaches.
  3. Burning or prickling
  4. Shoulder, arm or hand pain
  5. Neck stiffness, soreness or reduced ranged of motion
  6. Muscle spasms in your neck
Beyond physical symptoms, individuals may also experience nervousness/irritability, sleep disturbances and fatigue as well.

Treating Whiplash

Initial Doctor Visit

Your doctor will likely use a detailed history and description of your symptoms to reach a diagnosis.  Modern medical equipment like x-rays, CT Scans or MRIs may be used as well though it is unlikely if it is a soft tissue injury. .

Treating Injuries

Typically, the physician may prescribe pain medication,anti-inflammatory drugs, muscle relaxers, rest, ice, heat and physical therapy. For more significant injuries, it may take several weeks of physical therapy to see significant improvement.

Healing Time

Most individuals will find that symptoms resolve in a matter o days. For others, however, recovery could be 3 months away according to the National Institute of Neurological Disorders and Strokes. However, about 1 of every 4 people with whiplash report symptoms for up to a year, and about 1 in 10 patients report permanent symptoms as a result of their whiplash injuries.  

Proof & Defenses in Criminal Cases

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Protection of the Interest of the Investor

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Local Government Tort Claims Act

180 Day Deadline to Notify Defendant Local Government of Injury - Local Government Tort Claims Act

As an experienced Maryland personal injury lawyer, it is important to highlight the fact that claims against local governments such as your county or city have stringent and different requirements that other personal injury cases. The first requirement that can easily destroy any claims you may have is missing the deadline for notifying the local authorities. Under Section 5-304 of the Local Government Tort Claims Act, claimants must file a written notice with an explanation of  the time, place, and cause of the injury within 180 days of the occurrence. SEcondly, notice must be sent via certified mail, return receipt requested, bearing a postmark from the United States to the proper persons. Alternatively, notice can be given in person. The proper person to give notice to is identified based on the jurisdiction you are in. Here is a list of where notice should be sent if an occurrence occurs in that jurisdiction.
  •  In Baltimore City, to the City Solicitor;
  • In Howard County, to the County Executive; and
  • In Montgomery County, to the County Executive.
  • In Anne Arundel County, Baltimore County, Harford County, and Prince George’s County, the notice shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county solicitor or county attorney.
To illustrate how important it is notify the local government in accordance with the above rule see the case below involving a tort claim raised by a used car dealership.   Dehn Motor Sales, LLC et al. v. Joseph Schultz et al., No. 94, Sept. Term, 2013 LOCAL GOVERNMENT TORT CLAIMS ACT – NOTICE REQUIREMENT- SUBSTANTIAL COMPLIANCE WITH NOTICE REQUIREMENT A used-car business which filed tort claims asserting violations of Articles 19, 24, and 26 of the Maryland Declaration of Rights against police officers who seized vehicles from its sales’ lot without a court order or warrant did not substantially comply with the notice requirement when, more than two years earlier, it had filed an action for replevin seeking return of the vehicles and loss-of-use damages. The replevin action did not forewarn, as a notice of claim must, either explicitly or implicitly, that a subsequent suit for unliquidated damages would follow. SECTION 1983 OF TITLE 42 OF THE UNITED STATES CODE – CONSTITUTIONAL TORTS – QUALIFIED IMMUNITY Police officers who ordered the towing of vehicles from a used-car lot without a court order or warrant under the belief that the vehicles posed environmental and fire hazards were entitled to qualified immunity, because there was no clearly-established law that prohibited the towing of vehicles under such circumstances. Circuit Court for Baltimore City, Maryland Case No: 24-C-08-002096 Argued: June 5, 2014 IN THE COURT OF APPEALS OF MARYLAND No. 94 September Term, 2013 DEHN MOTOR SALES, LLC, et al. v. JOSEPH SCHULTZ, et al. Barbera, C.J. Harrell Battaglia Greene Adkins McDonald Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ. Opinion by Battaglia, J. Filed: July 22, 2014 In this case we are called upon to explore, once again, what actions may constitute substantial compliance with Section 5-304 of the Courts and Judicial Proceedings Article, Maryland Code (1974, 2006 Repl. Vol., 2008 Supp.),1 the notice requirement of the Local Government Tort Claims Act (LGTCA or the Act), which requires a claimant suing a local government2 or its employees to provide a written notice of claim to the government within 180 days of the alleged injury. We also must decide whether two Baltimore City police officers, Officer Joseph A. Schultz, Jr. and Sergeant Anthony Proctor, Respondents, are entitled to qualified immunity from federal constitutional claims asserted by Petitioners, Dehn Motor Sales, LLC, et al. (Dehn Motor)3 under Section 1983 of Title 42, 1 Section 5-304 of the Courts and Judicial Proceedings Article, Maryland Code (1974, 2006 Repl. Vol., 2008 Supp.), in effect at the time these proceedings were instituted, provided in relevant part: (b) Notice required. –(1) Except as provided in subsections (a) and (d) of this section, an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section is given within 180 days after the injury. * * * (3) The notice shall be in writing and shall state the time, place, and cause of the injury. All references to the Maryland Code are to the Courts and Judicial Proceedings Article, Maryland Code (1974, 2006 Repl. Vol., 2008 Supp.), unless otherwise noted. 2 The Local Government Tort Claims Act (“LGTCA”) includes “[t]he Baltimore City Police Department.” Section 5-301(d)(21) of the Courts and Judicial Proceedings Article. 3 We utilize “Dehn Motor” to refer to all of the Petitioners herein consistent with the nomenclature used by the parties throughout the trial court and appellate proceedings. The Petitioners include Farzan Mohamed, Dehn Motor Sales, LLC, Progressive Car Rental, LLC, and Brooklyn Progressive Auto Paint Group. United States Code.4 Specifically, we granted certiorari to consider: I. Whether the Court of Special Appeals erred in affirming the dismissal of the state law claims against the respondents because adequate notice was allegedly not given under the Local Government Tort Claims Act even though a replevin action filed by the petitioners gave notice of constitutional violations by the police and where the City Solicitor litigated the replevin action for three years, thus ensuring an adequate investigation, and where the respondents cooperated with the City Solicitor during the course of the three year investigation prior to the filing of the underlying case in this matter? II. Whether the Court of Special Appeals committed error in affirming summary judgment when it concluded that the respondent police officers were constitutionally justified in seizing the petitioners’ 67 vehicles without a warrant or other court order because of an alleged emergency, when that fact was disputed as a pretext by the petitioners and where the trial court expressly stated that exigent circumstances were not present? Dehn Motor v. Schultz, 435 Md. 266, 77 A.3d 1084 (2013). The genesis of the instant matter occurred when Dehn Motor5 filed an action for replevin in the District Court of Maryland, sitting in Baltimore City, against Alford H. 4 Section 1983 of Title 42 of the United States Code provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 5 Brooklyn Progressive Auto Paint Group did not participate in the replevin action. 2 Foxx, the Director of the Baltimore City Department of Transportation; Richard Hooper, Acting Tow Manager of the Baltimore City Department of Transportation; and the Mayor and City Council of Baltimore. The complaint for replevin specifically alleged that Dehn Motor owned and operated a used car business at the address of 330-334 East Patapsco Avenue, Baltimore, Maryland and 3550-3554 Fourth Street, Baltimore, Maryland. On April 1, 2005, according to the complaint, ten to twenty Baltimore City police officers allegedly entered Dehn Motor’s lots and initiated the towing of sixty-seven vehicles that Dehn Motor lawfully owned as part of the used car sales business, without a court order or warrant. The complaint further averred that the City would not return the vehicles unless Dehn Motor agreed to pay $6,600 for the cost of towing: 1. The Plaintiffs legally operate a used car business at the address of 330-334 East Patapsco Avenue, Baltimore, Maryland 21225 and 3550-3554 Fourth Street, Baltimore. Maryland 21225..[sic] 2. The Plaintiffs’ location has been continuously used to sell used cars for more than fifty years. 3. The Plaintiffs’ two lots are private property. 3554 Fourth Street is surrounded by a chain link fence about eight feet high with lattice sheets. 4. On or about April 1, 2005, about 10 to 20 Baltimore City police officers came to the Plaintiffs’ place of business without a warrant and without a prior Court order and they, with the help of many tow trucks of the City of Baltimore, entered into the private property of the Plaintiffs’ place of business and towed from the Plaintiffs’ place of business about sixty-seven (67) automobiles that were lawfully owned by the Plaintiff in the operation of it’s [sic] business. Attached hereto and marked Plaintiffs’ Exhibit Number One is a list of the vehicles taken from the Plaintiffs’ place of business and vehicle identification number of the automobiles that were illegally seized. 5. The Defendants seized about six (6) more automobiles which they did not provide a list of to the Plaintiff. 6. The Baltimore City Police officers never showed a warrant and/or a Court order to Plaintiffs and/or its agents, servants or employees, that the police had a right in fact and in law, to enter on the private property of the Plaintiff and to forcibly seize sixty-seven (67) automobiles lawfully owned 3 by the Plaintiff and lawfully stored on it’s [sic] private property. 7. The Plaintiffs on April 1, 2005, was [sic] not served or given any citations of any alleged violation of the law concerning the sixty-seven (67) cars that the defendants illegally seized from the Plaintiffs’ place of business and unjustly detains. 8. The Plaintiffs made an effort to recover some of it’s [sic] automobiles, but they were told they could not have the automobiles they requested without paying about $6,600.00. 9. The Defendants do not claim title and/or ownership of the seized automobiles. 10. The Defendants unjustly detain the automobiles of the Plaintiffs they illegally seized from the Plaintiffs. (emphasis in original). As a result of the alleged unlawful detention of the vehicles, Dehn Motor sought return of the cars, as well as $60,000 to cover loss of use: 11. The Plaintiffs believe that the automobiles illegally seized by the Defendants have a value to the Plaintiffs of about Sixty Thousand Dollars ($60,000.00) plus the damages caused to the Plaintiffs by the loss of use of it’s [sic] automobiles since these automobile have been unjustly detained by the Defendants. The Plaintiffs cannot sell or prepare the seized automobile for sale while they are unjustly detained by the Defendants. 12. The Plaintiffs request that the sixty-seven (67) automobiles illegally seized by the Defendants be returned immediately to the Plaintiffs at the expense of the Defendants. 13. The Plaintiffs request damages, that are fair and reasonable, that the Plaintiffs suffered because of the illegal seizure of the sixty-seven (67) automobiles from the possession of the Plaintiffs and the illegal detention of said automobiles by the Defendants. Subsequently, after the action was joined, District Court Judge Miriam B. Hutchins entered an order that the vehicles be returned to Dehn Motor, on the condition that they not be stored where the cars originally had been. On March 28, 2008, almost three years after the vehicles were towed, Dehn Motor initiated another action in the Circuit Court for Baltimore City; this second action was 4 instituted against Sergeant Proctor and Officer Schultz, inter alia,6 identifying them as the police officers who allegedly initiated the towing of the vehicles. The impetus for the towing occurred, according to the suit, when the Baltimore City Police Department received complaints from Brooklyn & Curtis Bay Coalition,7 a local neighborhood improvement association, leading Officer Schultz to conduct “his own inspection and observation of the used car business”. The complaint alleged that Officer Schultz, with the knowledge of his supervisor, Sergeant Proctor, planned to have the vehicles towed days prior to April 1, 2005 and, on April 1, 2005, executed that plan. Dehn Motor sought $500,000 in compensatory damages and $1,000,000 in punitive damages, alleging that the warrantless towing of the vehicles without a prior hearing violated Articles 19,8 24,9 and 6 Dehn Motor also sued Frederick Bealefeld, the Police Commissioner of the Baltimore City Police Department; the Mayor and City Council of Baltimore City; and Brooklyn & Curtis Bay Coalition, although claims against these parties were dismissed during the proceedings and those orders are not challenged on appeal. 7 Officer Schultz testified in his deposition that the complaints the Police Department received regarding Dehn Motor pertained primarily to vehicles that were parked out on the street that did not contain license plates and others that were parked in a manner blocking a nearby alleyway. 8 Article 19 of the Maryland Declaration of Rights provides: That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land. 9 Article 24 of the Maryland Declaration of Rights provides: That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his 5 2610 of the Maryland Declaration of Rights as well as Section 1983 of Title 42 of the United States Code based on violations of the Fourth11 and Fourteenth12 Amendments to the United States Constitution: 17. The illegal seizure of the automobiles and automobile parts owned by the Plaintiffs and possessed by the Plaintiffs, violated the rights of the Plaintiffs as guaranteed by the Fourth Amendment and Fourteenth Amendment to the United States Constitution and 42 USC 1983 for which defendant police officers . . . are individually liable. . . . The Defendant police officers . . . also violated the rights of the Plaintiffs guaranteed to them under Articles 19, 24, and 26 of the Maryland Declaration of Rights and such other articles of the Maryland Declaration of Rights as may be implicated through the course of these proceedings. life, liberty or property, but by the judgment of his peers, or by the Law of the land. 10 Article 26 of the Maryland Declaration of Rights provides: That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted. 11 The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 12 The Fourteenth Amendment to the United States Constitution provides, in relevant part: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 6 18. That at all times described herein Police Officer Joseph A. Schultz, Jr. and Sergeant A. Proctor of the Baltimore City Police Department and the Baltimore City Police Department, who were agents, servants, and employees of the Baltimore City Police Department and the Mayor and City Council of Baltimore City acted under the color of statutes, customs and usage of the State of Maryland and the City of Baltimore. . . . 19. As a direct and proximate result of the Defendants’ conduct and actions as alleged herein, the Plaintiff had to retain counsel to file suit in the District Court of Maryland for Baltimore City to regain possession of the automobiles and the automobile parts of which they legally possess to the great and emotional upset and discomfort to Farzan Mohamed and to his great expense for attorneys fees and costs to prosecute said replevin action. Officer Schultz and Sergeant Proctor, thereafter, generally denied the allegations and asserted, as affirmative defenses, that their “actions were privileged because the Defendant[s] w[ere] performing lawful duties as . . . member[s] of the Baltimore Police Department and [they are] entitled to and claims all common law, statutory, and qualified immunities.”13 13 Prior to either party filing an Answer, the case was removed to the United States District Court for the District of Maryland. The case, however, was subsequently remanded to the Circuit Court for Baltimore City after United States District Court Judge Catherine C. Blake determined that the removal had been untimely. Additionally, before Officer Schultz was served with the Complaint, Sergeant Proctor had moved to dismiss the state law claims against him, asserting, inter alia, that they were barred because Dehn Motor failed to file a notice of claim, as required by the Local Government Tort Claims Act. The judge who heard the motion disagreed, reasoning that the replevin action constituted substantial compliance with the notice provision: While I suspect I’ll hear more of that discussion in a moment, as to this, the court does not find that the city has indicated where there has been substantial harm to it in its ability to in fact properly prepare the case. The court does note, if you would please, is that under the circumstances is that the activity and circumstances of the initiation of the claim, the aggravated circumstance, if you will, as to the calling of the tow trucks and the taking of the cars, were clearly notified as to potential 7 After discovery was completed, the parties filed cross-motions for summary judgment. In its motion, Dehn Motor urged that the undisputed facts showed that Officer Schultz and Sergeant Proctor had entered private property without a warrant or court order and towed Dehn Motor’s vehicles, which entitled it to judgment as a matter of law on all claims. Officer Schultz and Sergeant Proctor disagreed and filed a joint cross-motion for summary judgment, in which they asserted that they were entitled to judgment as a matter of law because the State constitutional claims were barred by the notice provision of the Local Government Tort Claims Act. They argued, specifically, that Dehn Motor had not filed a notice of claim with Baltimore City within 180 days of the date of the towing, and, moreover, that filing the replevin action was inadequate to constitute substantial compliance, because, inter alia, “Proctor and Schultz were not defendants or listed as parties to the Replevin action” and because the replevin action did not put the City on notice that Dehn Motor’s alleged injuries emanated from State and federal constitutional violations. Officer Schultz and Sergeant Proctor posited that the federal constitutional claims also must fail, because the undisputed facts showed that many of the vehicles were towed defendants as to what plaintiffs’ actions may be, albeit if the initial - - or initial action of plaintiff was in a replevin action; that under the circumstances the court does believe that there was substantial notice given the parties and that there was substantial compliance. Judge Evelyn Omega Cannon concluded otherwise, however, when she granted Sergeant Proctor’s and Officer Schultz’s joint motion for summary judgment. 8 to remedy environmental and fire hazards, and therefore, the police officers were not required to obtain a warrant because they were engaged in a “community caretaking function.”14 In support of their assertion that the vehicles posed environmental and fire 14 The “community caretaking function” was first announced by the United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973), in which the Court opined that police officers, acting as “community caretakers”, did not violate the Fourth Amendment when they searched and seized the vehicle of a Chicago police officer without probable cause who had been pulled over for drunk driving. The police conducting the search were aware that Chicago police officers were required to carry a service revolver, and thus, had searched the vehicle in an attempt to locate the revolver. In upholding the search, the Court opined that the search was reasonable because it was “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute” and because the search was aimed at ensuring the safety of the general public, rather than uncovering evidence related to crime detection. Cady, 413 U.S. at 441, 447, 93 S.Ct. at 2528, 2531, 37 L.Ed.2d at 714-15. The Court further iterated: Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Id. at 441, 93 S.Ct. at 2528, 37 L.Ed.2d at 714-15 (emphasis added). In Wilson v. State, 409 Md. 415, 435, 975 A.2d 877, 888 (2009), in which we embraced the community caretaking doctrine, we described its function, in part, as “as a general public welfare rule or what is sometimes known as the ‘public servant’ exception. When the police act to protect the public in a manner outside their normal law enforcement function, many courts have applied the doctrine to validate many warrantless searches and seizures, and in a variety of circumstances.” 9 hazards, they attached portions of Officer Schultz’s deposition in which he testified that, upon arriving at the Dehn Motor lots, there were a number of vehicles that were stored in a manner causing fluids to seep out of the cars and into the ground: [OFFICER SCHULTZ]: [A] lot of them were like half cars, cars with the motor sticking out, leaking fluids. They were physically - - you could see the fluids leaking out of the motors, you could see the antifreeze coming out of the radiators . . . Officer Schultz also appended other portions of his deposition in which he stated that he was informed by a member of the “Environmental Crimes Unit”15 that the vehicles were “supposed to be parked on a hard surface, not on a grass or dirt area.” Officer Schultz and Sergeant Proctor also specifically urged that they acted with “actual justification” for the towing because of various provisions of the Baltimore City Code. Specifically, they relied on Officer Schultz’s deposition testimony in which he stated that a number of vehicles were parked in a manner that obstructed an alleyway adjacent to the Dehn Motor lot. Accordingly, the officers posited that the cars were parked in violation of Article 19, Section 50-2(a) of the Baltimore City Code, prohibiting a person from obstructing an alley16 and Article 31, Section 6-3 of the Baltimore City Code, 15 Officer Schultz did not elucidate further regarding the “Environmental Crimes Unit”. 16 Article 19, Section 50-2(a) provides: (a) Prohibited conduct. Except as specifically provided in this section, no person may in any manner obstruct any street, lane, sidewalk, footway, or alley in the City or any of their gutters. 10 providing that, “no vehicle shall be so parked or otherwise stopped as to prevent the free passage of other vehicles or street cars in both directions at the same time”. To the joint motion also was appended Dehn Motor’s “Permit Application” filed with the Baltimore City Department of Housing and Community Development that stated that 3550 Fourth Street was a “vacant” lot to be used for the “storage of licensed and unlicensed vehicles”, when, in fact, according to Officer Schultz and Sergeant Proctor, 3550 Fourth Street was actually a “grass lawn which abutted a home.” As a result, they argued, the vehicles were stored in violation of unspecified zoning regulations, permitting the City, pursuant to Article 31, Section 31-8(d)(2) of the Baltimore City Code,17 to tow the vehicles. Officer Schultz and Sergeant Proctor urged, finally, that they were entitled to “qualified immunity”, because, they argued, they did not violate any clearly established statutory or constitutional rights.18 Dehn Motor failed to file a response within the time set forth in the scheduling order 17 Article 31, Section 31-8(d)(2) provides in pertinent part: The vehicle is deemed abandoned and may be towed or otherwise removed, as provided for vehicles found abandoned on public property, if: * * * (iii) the storage of the vehicle is in violation of the zoning laws or regulations of the City. 18 The qualified immunity doctrine, as described by the United States Supreme Court, provides that, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). 11 in the case. Rather, when Dehn Motor filed its opposition on the day before the motions hearing, the Circuit Court judge struck the pleading. Judge Cannon also denied Dehn Motor’s motion for summary judgment, but granted Sergeant Proctor’s and Officer Schultz’s joint motion for summary judgment. In granting Sergeant Proctor’s and Officer Schultz’s motion for summary judgment, Judge Cannon concluded that the State constitutional claims were barred by the Local Government Tort Claims Act, reasoning that the filing of the replevin action did not constitute substantial compliance with the notice requirement, because it did not put the City on notice that a claim would be filed against the police officers for money damages:19 I am going to grant the defendants’ motion for summary judgment for several reasons. For one, plaintiff did not comply with Section 5-304 of the Local Government Tort Claims Act. The filing of the replevin action against the City and the other individuals was not notice to anyone, certainly at all that there was a claim against these two officers, a claim for money damages. It just simply - - it does not work as a claim for that at all. And so there’s no way that that filing of that answer, that could be working as substantial compliance. Turning to the federal constitutional claims, the Circuit Court judge concluded that Officer Schultz and Sergeant Proctor were entitled to summary judgment because they had qualified immunity, as they were acting pursuant to various provisions of the Baltimore City Code: I’m not convinced that a claim has been stated. I mean what - - again, and I don’t have anything that - - that addresses this from the other 19 The trial court judge also determined that Dehn Motor had not shown good cause for waiver of the notice requirements of the LGTCA. The issue of good cause is not before us. 12 side. I mean what the - - what the officers have proffered and testified, I proffered they testified. And this is the evidence now, of course, that they were acting under the provisions of the City Code. The articles that were cited of the City Code are Article 19, Section 50-11, which talks about removing cars that are obstructing the passageways of streets, lanes, or alleys, Article 31, Section 31-6 which talks about that a person can’t use a city street to park, stop, store, operate a car in such a way as to obstruct or impede the free flow of traffic. Now, I think that in fairness this would not apply, because the determination by the commissioner such a vehicle is actually obstructing traffic shall be considered prima facie evidence of a violation. I don’t know if that determination - - it doesn’t say a determination needs to be made in advance. But there are other sections, Article 31, Section 6-3 which talks about obstructing free passage. And Article, I guess it’s Section - - oh, same section, 50-2 which talks about it also. And this may not have been the best way to go about doing it. And also this article - - there’s another one - - Article 31, Section 31-8. I mean there’s all of these articles. And again, there’s nothing - - there’s been no response that has addressed either one of those in any way, shape, or form to say that the Court should disregard that. So I mean and I went through, and as far as I figured out, it’s not saying that each one of them applied. But there’s enough that’s involved that it certainly raised it to qualified immunity, I mean to show that it was not clearly established. She expressly declined, however, to determine that the police officers were acting as “community caretakers” that justified the warrantless seizure of the vehicles. The Circuit Court judge subsequently entered a written order in which she granted summary judgment in favor of Officer Schultz and Sergeant Proctor.20 20 Dehn Motor, thereafter, filed a motion to alter or amend the judgment, which was denied. In its motion, Dehn Motor challenged the assertion that the police officers had “actual justification” for the towing and argued that Judge Hutchins, in a memorandum opinion in the replevin action addressing whether Dehn Motor’s replevin action was barred for failure to exhaust administrative remedies, concluded that the City did not act properly pursuant to the Baltimore City Code. Accordingly, Dehn Motor argued, the issue of 13 Dehn Motor, thereafter, noted a timely appeal to the Court of Special Appeals, challenging the propriety of the trial court’s decision to grant summary judgment. In a reported opinion, the Court of Special Appeals affirmed. Dehn Motor Sales, LLC v. Schultz, 212 Md. App. 374, 69 A.3d 61 (2013). The court first concluded that the filing of the replevin action did not constitute substantial compliance with the notice requirement of the Local Government Tort Claims Act, because the replevin action failed to forewarn the City that an action for unliquidated damages would follow; rather, the court opined, it suggested that Dehn Motor only sought the return of its vehicles. Id. at 387, 69 A.3d at 69. Likewise, the court concluded, “the replevin complaint gave no warning, expressed or implied, that the officers might be future defendants in a more substantial and thus more threatening action in an altogether different court involving constitutional claims and that the City could also face additional and substantial damage claims, far greater than those that could be advanced in a replevin action.” Id. at 388, 69 A.3d at 69-70. Our intermediate appellate court also concluded, with respect to the federal claims, that the Circuit Court did not err in granting summary judgment on the grounds that Sergeant Proctor and Officer Schultz were acting in accordance with the Baltimore City Code, because Dehn Motor had failed to address the argument: Nonetheless, at the hearing on the parties’ cross-motions for summary judgment, the court asked Dehn Motor’s counsel what his response was to the officers’ reliance on the Baltimore City Code in their joint motion, but no response specifically addressing that query was forthcoming. In the absence of a response, the circuit court found that the officers “were acting under the compliance with the Baltimore City Code should not have been re-litigated; Dehn Motor did not advance this argument on appeal. 14 provisions of the City Code” when they towed the vehicles in question. The code provisions cited by the officers prohibited the obstruction of streets and alleys, authorized the towing of obstructing vehicles, and permitted the removal of vehicles stored on private property in violation of zoning laws. Given the failure of Dehn Motor to dispute the officers’ claim that they acted pursuant to the Baltimore City Code, the circuit court did not err in granting summary judgment as to Dehn Motor’s Fourth and Fourteenth Amendment claims. Id. at 390, 69 A.3d at 71 (footnotes omitted). The intermediate appellate court reasoned, alternatively, unlike the trial court, that the police officers’ actions did not violate the Fourth Amendment, because of its conclusion that Officer Schultz and Sergeant Proctor “were acting as community caretakers when they had Dehn Motor’s vehicles towed. Their purpose in doing so, as the undisputed facts showed, was to safeguard the community from the immediate and significant fire and chemical hazards that the cars posed.” Id. at 391, 69 A.3d at 71-72. The Court of Special Appeals, finally, affirmed the judgment of the Circuit Court on the grounds that the officers were entitled to qualified immunity, reasoning that, Dehn Motor had failed to cite any “cases remotely suggest[ing] that officers must obtain a warrant or court order before towing vehicles that pose a danger to the community.” Id. at 396, 69 A.3d at 73. We begin by addressing whether Dehn Motor’s claims are barred by the notice provision of the Local Government Tort Claims Act. The Local Government Tort Claims Act, codified at Sections 5-301 to 5-304 of the Courts and Judicial Proceedings Article,21 21 Section 5-301 of the Courts and Judicial Proceedings Article sets forth the various definitions as used in the Local Government Tort Claims Act. Section 5-302 provides, generally, that “[e]ach local government shall provide for its employees a legal defense in any action that alleges damages resulting from tortious acts or omissions committed by an 15 provides that a local government is liable for judgments rendered against its employees arising from tortious acts or omissions committed without malice and within the scope of employment, upon certain conditions. In relevant part, the Act provides: (b) When government liable. – (1) Except as provided in subsection (c) of this section, a local government shall be liable for any judgment against its employee for damages resulting from tortious acts or omissions committed by the employee within the scope of employment with the local government. (2) A local government may not assert governmental or sovereign immunity to avoid the duty to defend or indemnify an employee established in this subsection. Section 5-303(b) of the Courts and Judicial Proceedings Article. One of the necessary conditions to maintaining an action under the LGTCA is notice. 5-304(b) of the Courts and Judicial Proceedings Article.22 Under Section 5-304 of the Act, a written notice detailing the time, place, and cause of the injury must be sent by certified mail or “in person” to the appropriate person identified in Section 5-304(c) within 180 days of the alleged injury: (b) Notice required. – Except as provided in subsections (a) and (d) of this section, an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section is given within 180 days after the injury. (c) Manner of giving notice. –(1) Except in Anne Arundel County, Baltimore County, Harford County, and Prince George’s County, the notice employee within the scope of employment with the local government” and elucidates various exceptions. Section 5-303, inter alia, sets limits on liability, including a prohibition on a local government being liable for punitive damages. Section 5-304 contains the notice provision. 22 The Local Government Tort Claims Act would apply to tortious conduct allegedly committed by Baltimore City police officers. See, e.g., Smith v. Danielczyk, 400 Md. 98, 110-113, 928 A.2d 795, 802-03 (2007). 16 shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county commissioner, county council, or corporate authorities of a defendant local government, or: (i) In Baltimore City, to the City Solicitor; (ii) In Howard County, to the County Executive; and (iii) In Montgomery County, to the County Executive. (2) In Anne Arundel County, Baltimore County, Harford County, and Prince George’s County, the notice shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county solicitor or county attorney. (3) The notice shall be in writing and shall state the time, place, and cause of the injury. The notice requirement serves the purpose of apprising a local government “of its possible liability at a time when it could conduct its own investigation, i.e., while the evidence was still fresh and the recollection of the witnesses was undiminished by time, sufficient to ascertain the character and extent of the injury and its responsibility in connection with it.” Rios v. Montgomery Cnty., 386 Md. 104, 126, 872 A.2d 1, 14 (2005) (internal citations and quotations omitted). Filing notice is a “condition precedent” to suit so that failure to comply with notice bars the subsequent action. Id. at 127, 872 A.2d at 14.23 The failure to precisely conform with the statutory rubric has not necessarily barred a claimant’s action, however. In Jackson v. Board of County Commissioners of Anne Arundel County, 233 Md. 164, 195 A.2d 693 (1963), in which we interpreted a predecessor statute to Section 5-304 of the Courts and Judicial Proceedings Article, that being Section 23 For claims against Baltimore City and its employees, a notice of claim must be filed with the Baltimore City Solicitor. Section 5-304(c) of the Courts and Judicial Proceedings Article. 17 18 of Article 57, Maryland Code (1957),24 we explained the notion that “substantial compliance” with the notice requirement was adequate to enable suit against the local government to proceed. In Jackson, the Petitioner, Ms. Jackson, who was an injured passenger in an automobile accident allegedly caused by a county employee operating a dump truck, through her attorney, “sent a letter by ordinary mail to the County Commissioners of Anne Arundel County”, which stated the time, place and cause of her injuries, providing: We represent Phyllis and William A. Jackson, Jr., and their collision insurance carrier, Interstate Insurance Company, in a claim for damages against Anne Arundel County Public Works arising out of a collision occurring on January 18, 1962, at Solley Road and Powhatan Beach Road with a County Roads truck operated by Joseph Frank Havranek. ‘Please contact us promptly or if you carry liability insurance, have your insurance carrier contact us concerning payment of our claim.’ Id. at 166-67, 195 A.2d at 694-95. After summary judgment had been granted in favor of Anne Arundel County by the trial court, we reversed, rejecting the local government’s argument that the claim was barred for failure to comply with the notice requirement. We observed that Anne Arundel County had actually received the letter so that the purpose of the statute was served, that being that “the claimant furnish the municipal body with sufficient information to permit it to make an investigation in due time, sufficient to 24 Section 18 of Article 57, Maryland Code (1957) provided in relevant part: No action shall be maintained and no claim shall be allowed . . . for unliquidated damages for any injury or damage to person or property unless . . . written notice thereof setting forth the time, place or cause of the alleged damage, loss, injury or death shall be presented . . . to the county commissioners . . . . 18 ascertain the character and extent of the injury and its responsibility in connection with it.” Id. at 167, 195 A.2d at 695. Examining what we described as the “great weight of authority” from our sister jurisdictions, we determined that “[i]f the purpose of the statute[] is fulfilled, the manner of the accomplishment of the fulfillment has not generally been tested too technically.” Id. at 168, 195 A.2d at 695. Accordingly, we concluded that Ms. Jackson had substantially complied with the notice requirement. Since Jackson, we have had occasion to explore the parameters of the substantial compliance doctrine. In Faulk v. Ewing, 371 Md. 284, 808 A.2d 1262 (2002), we concluded that a claimant who had been injured in a motor vehicle accident by an employee of the Town of Easton, and thereafter, had sent a letter detailing that injury and an expectation of compensation to a private insurance company, which provided insurance to the local government, substantially complied with the notice requirement. We reasoned that the purpose of the notice requirement had been satisfied, particularly because the Town’s insurer had stated that it had conducted an investigation into the cause of the injury and made an assessment of the Town’s legal liability. Likewise, in Moore v. Norouzi, 371 Md. 154, 807 A.2d 632 (2002), we determined that a claimant who was injured while riding a Montgomery County bus substantially complied with the notice requirement when his attorney wrote and notified Montgomery County’s third-party claims administrator, Trigon, of the claim. We reasoned that, due to the significant control the County exercised over Trigon, substantial compliance with the statute had been demonstrated. 19 In Smith v. Danielczyk, 400 Md. 98, 928 A.2d 795 (2007), the claimant filed suit against members of the Baltimore City Police Department within 180 days of the alleged injury. After the City complained it had not received a notice of claim, the claimant sent a separate written notice of claim to the City, prior to the expiration of the 180-day window for filing the notice. The police officers who had been sued moved to dismiss the complaint, alleging that the claimants had not complied with the notice requirement. The Circuit Court judge dismissed the complaint and we reversed, concluding that, because the filing of the complaint and notice both occurred within the relevant 180-day window, the City had been informed of the necessary facts to conduct a proper investigation. Substantial compliance, however, was not found in Ellis v. Housing Authority of Baltimore City, 436 Md. 331, 82 A.3d 161 (2013),25 involving a negligence claim brought against the Housing Authority of Baltimore City by one of the Petitioners, Tyairra Johnson, who had allegedly contracted lead-paint poisoning as a result of residing in housing owned and operated by the Housing Authority. Ms. Johnson’s mother had orally complained to a Housing Authority property manager about chipping paint and threatened to sue the Housing Authority if the condition was not abated. The Circuit Court for Baltimore City granted summary judgment in favor of the Housing Authority, concluding that the mother’s actions did not constitute substantial compliance with the notice requirement of 25 In Ellis v. Housing Authority of Baltimore City, 436 Md. 331, 344, 82 A.3d 161, 168 (2013), we addressed two cases in one opinion—Ellis v. Housing Authority of Baltimore City and Johnson v. Housing Authority of Baltimore City. Both cases involved suits brought against the Housing Authority of Baltimore City after the Plaintiffs had contracted lead-paint poisoning. Our discussion pertains only to Johnson’s case. 20 the Local Government Tort Claims Act. We affirmed the judgment of the Circuit Court, agreeing that the oral threat to sue the Housing Authority as a result of the chipping and peeling paint was inadequate to constitute substantial compliance. In so concluding, we reasoned that the oral threat did not indicate, implicitly or otherwise, that a lead paint action seeking compensatory damages was forthcoming, but rather, threatened only a suit more akin to a landlord-tenant action in which the only relief sought was remediation of the chipping paint: First, Johnson’s mother threatened to sue HABC if it did not fix the chipping paint; thus, Johnson’s mother essentially advised that the threatened action against HABC would be a landlord-tenant action (in which Johnson’s mother sought that HABC fix the chipping paint), not a lead paint action (in which Johnson sought damages for her alleged injury resulting from exposure to lead paint). Simply put, through her alleged oral complaint, Johnson’s mother neither explicitly nor implicitly indicated that she intended to sue HABC regarding any injury. A plaintiff does not substantially comply with the LGTCA notice requirement where the plaintiff demands that a local government fix a defect, but neither explicitly nor implicitly indicates that the plaintiff intends to sue the local government regarding an injury resulting from the defect Id. at 345, 82 A.3d at 169 (emphasis added). We further iterated that a plaintiff does not provide the requisite notice “where the plaintiff simply demands that the local government fix a defect.” Id. at 346 n.8, 82 A.3d at 169 n.8. In Ellis, we relied upon the Court of Special Appeals’s opinion in Halloran v. Montgomery County Department of Public Works, 185 Md. App. 171, 968 A.2d 1104 (2009), in which the appellant, Karen Halloran, wrote a letter to the Montgomery County Department of Public Works and Transportation, in which she detailed the date, time, and cause of her injury; stated the amount of time she missed at work; provided pictures of her 21 injured ankle; and requested that the “pavement [be] repaired immediately to make the concave area flush with the rest of the roadway.” Id. at 178, 968 A.2d at 1109. The letter, according to the Court of Special Appeals, did not constitute substantial compliance, because “[n]owhere in the letter did Halloran state that she had a ‘claim’ against the County” and thus, “the County had no reason to, and did not in fact, start ‘an investigation into a tort claim for damages involv[ing] . . . legal defenses, the nature and extent of the actual injuries sustained, the causal relationship of the injuries to the alleged misconduct, the likelihood of an award of compensatory and/or punitive damages, the necessity and cost of expert testimony, and litigation strategy.’” Id. at 187-88, 968 A.2d at 1114, quoting Wilbon v. Hunsicker, 172 Md. App. 181, 204, 913 A.2d 678, 692 (2006). In the instant case, Dehn Motor does not contest that it had not sent a letter by certified mail to the Baltimore City Solicitor’s office advising the City of its claims against Sergeant Proctor and Officer Schultz, but contends that the filing of its replevin action in District Court fulfilled the purpose of the Local Government Tort Claims Act notice requirement. Not only did the City Solicitor defend the replevin claim, Dehn Motor claims, but it further asserts that the replevin action set forth “the time, place and cause of injury”, and was litigated for almost three years. Dehn Motor concludes, therefore, that the City “had ample time to do the normal investigatory work to protect its interests and those of its employees.” Officer Schultz and Sergeant Proctor, of course, disagree, because they were not named in the replevin action, and therefore, “there was no indication that Dehn Motor 22 would assert constitutional claims, or any claims at all, against Proctor and Schultz.” They further argue that the replevin action could “neither address the manner in which property was seized, nor adjudicate complex issues of constitutional magnitude”, and thus, “did not forewarn, as a notice of claim must, that an action for unliquidated damages may follow.” The Circuit Court and the Court of Special Appeals both accepted this argument, concluding that the replevin complaint did not warn the City of a future suit for unliquidated damages, and moreover, did not identify Officer Schultz and Sergeant Proctor as potential parties. We agree with our sister courts that the replevin action did not act as substantial compliance, but do so on the basis that the replevin action did not forewarn the City of the constitutional claims.26 The replevin action filed in the District Court differed substantially from the constitutional tort claims filed against Officer Schultz and Sergeant Proctor in the Circuit Court. In a replevin action, a party seeks basically to recover specific goods and chattels to which he or she asserts an entitlement to possession. See Wallander v. Barnes, 341 Md. 553, 561, 671 A.2d 962, 966 (1996). “[W]hoever is entitled to possession, whatever may be his title in other respects, may maintain or defeat the action of replevin; his right to success in the action of replevin depends entirely on his right to possession.” Shorter v. Dail, 122 Md. 101, 104 , 89 A. 329, 330 (1913). To prevail under any claim alleging violations of Maryland constitutional rights, 26 Because the Local Government Tort Claims Act does not require a claimant to identify with specificity the party who allegedly committed the tortious act in its notice, we do not rest our decision on the failure to identify Officer Schultz and Sergeant Proctor in the replevin action. 23 however, proof must be adduced: 1) That the defendant-officer engaged in activity that violated a right protected under the Maryland Constitution; and 2) The defendant-officer engaged in such activity with actual malice toward the plaintiff. Paul Mark Sandler and James K. Archibald, Pleading Causes of Action in Maryland 538 (5th ed. 2013). Specifically, under Article 24 of the Maryland Declaration of Rights, “a plaintiff must demonstrate that he or she (1) had a protected property interest, (2) was deprived of that interest by the state, and (3) was afforded less procedure than was due.” Id. at 533. A violation of Article 26 occurs, inter alia, when the state engages in an unreasonable search or seizure of a person’s property. See Liichow v. State, 288 Md. 502, 509 n.1, 419 A.2d 1041, 1044 n.1 (1980).27 As we explained in Ellis, to substantially comply with the notice requirement, a claimant must provide some indication, either explicitly or implicitly, that a subsequent suit for unliquidated damages will follow. The replevin action did not do so. Rather, by filing a replevin complaint, Dehn Motor communicated to the City that it sought return of the vehicles and loss-of-use damages. The replevin action, thus, was much like the threat of a landlord-tenant action seeking remediation of chipping paint that we concluded was inadequate to constitute substantial compliance in Ellis; effectively, by filing the replevin complaint, Dehn Motor “demanded that the local government fix . . .” a problem by 27 Article 19 of the Maryland Declaration of Rights does not necessarily support a private cause of action and monetary remedies. Article 19, rather, guarantees a citizen the opportunity to seek judicial redress of a wrong. See, e.g., Doe v. Doe, 358 Md. 113, 127-28, 747 A.2d 617, 624-25 (2000). 24 returning the vehicles and making it whole through loss-of-use damages. See Ellis, 436 Md. at 345, 82 A.3d at 169. Due to the narrow relief sought through the replevin action, the City had only reason to research the fact that cars had been removed and what use had been lost. It did not have any reason to investigate whether “actual malice” was in issue as well as the process afforded to Dehn Motor, all of which are crucial aspects of the constitutional tort claims asserted in the Circuit Court. In sum, as the Court of Special Appeals aptly described in Halloran, only asking for return of the vehicles did not put the City on notice to “start an investigation into . . . the nature and extent of the actual injuries sustained, the causal relationship of the injuries to the alleged misconduct, the likelihood of an award of compensatory and/or punitive damages, . . . and litigation strategy”, that would be later in issue in the second case. Halloran, 185 Md. App. at 187-88, 968 A.2d at 1114 (quotations and citations omitted). Accordingly, Judge Cannon correctly concluded that Dehn Motor’s constitutional claims asserted in the second suit were barred for failure to comply with the notice provision of the LGTCA.28 Having determined that the State law claims are barred by the Local Government Tort Claims Act, we turn now to the federal constitutional claims asserted pursuant to 28 Dehn Motor devotes a substantial portion of its argument as to why the City was not prejudiced by Dehn Motor’s failure to file a notice of claim. We need not address the issue of prejudice because prejudice only becomes relevant if the issue being addressed is good cause for failing to file a notice of claim, which Dehn Motor is not relying upon. See Ellis, 436 Md. at 352 n.11, 82 A.3d at 173 n.11 (concluding that we need not address prejudice after determining that there was no substantial compliance because “[p]rejudice to a local government due to lack of notice is at issue only if a plaintiff shows good cause for the plaintiff’s failure to comply with the LGTCA notice requirement”). 25 Section 1983 of Title 42 of the United States Code, which provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. Judge Cannon concluded that the officers were entitled to qualified immunity because of various provisions of the Baltimore City Code, which, she reasoned, may not have necessarily authorized the towing, but were sufficient to support such a finding. The Court of Special Appeals concluded that the federal claims were barred for three separate reasons—the community caretaking function justified the seizure of the vehicles, the Baltimore City Code authorized the towing, and the police officers did not violate any clearly established law, and therefore, were entitled to qualified immunity. We agree that Officer Schultz and Sergeant Proctor were entitled to qualified immunity and explain.29 29 The Court of Special Appeals determined that Officer Schultz and Sergeant Proctor were entitled to judgments as a matter of law, because they were acting as “community caretakers”, a ground expressly rejected by the trial judge. While the court recognized the oft-cited principle of appellate review that we generally review summary judgment only on the grounds upon which the trial court relied, the court invoked the exception that “the grant of summary judgment will be affirmed on a ground not relied upon by the circuit court if the alternative ground is one that the motions judge would have had no discretion to reject.” Dehn Motor Sales, 212 Md. App. at 392 n.26, 69 A.3d at 72 n.26. We need not 26 Qualified immunity is a doctrine mired in federal law: “[m]ost public officials carry out executive and administrative functions for which they enjoy qualified immunity from personal liability for money damages.” Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Claims and Defenses, 338 (3d ed. 1997). The qualified immunity doctrine protects public officials from “personal monetary liability so long as their actions do not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known” and its application “turns on the objective legal reasonableness of the official’s conduct.” Id. (alteration in original) (quotation, citations and footnotes omitted). In Harlow v. Fitzgerald, 457 U.S. 800, 813, 102 S. Ct. 2727, 2736, 73 L. Ed. 2d 396, 407 (1982),30 the United States Supreme Court determined that a former executive aide to address the community caretaker function, because of our affirmance on the circuit court judge’s basis for qualified immunity. 30 The Supreme Court in Harlow, apparently, revised the standard under which qualified immunity was to be analyzed: Prior to Harlow v. Fitzgerald, the civil rights claim under § 1983 had both an objective and a subjective component. The qualified immunity defense was originally a “good faith” defense, available to all public officials without absolute immunity. The common law form of qualified immunity was limited to official actions taken in subjective good faith. In Harlow, the United States Supreme Court announced a revised standard for the qualified immunity defense. Harlow eliminated the subjective element. As a result the intent of the defendant was no longer at issue. The motivation behind this change was to preserve the immunity from suit that summary judgment provides. The Court noted that “questions of subjective intent . . . rarely can be decided by summary judgment.” The subjective standard therefore conflicted with the Court's statement in Butz v. Economou that “insubstantial claims should not proceed to trial.” 27 President Nixon was entitled to qualified immunity, rather than absolute immunity, from constitutional Bivens claims31 asserted by an employee who had been terminated by the Department of the Air Force, according to the Court. In determining that the aide was entitled to qualified immunity, the Court explained the competing interests that the qualified immunity doctrine seeks to serve. See id. at 813-14, 102 S Ct. at 2736, 73 L. Ed.2d at 407-08. On the one hand, civil actions may be the only recourse to vindicate violations of constitutional rights; on the other hand, such actions impose a number of burdens on government officials, including the expense of litigation and diversion of time from an official’s public duties. Id. at 814, 102 S. Ct. at 2736, 73 L. Ed.2d at 407-08. Likewise, a civil suit may inhibit a public official from executing his or her job, because of fear of being sued: In situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees. Butz v. Economou, supra, at 506, 98 S. Ct., at 2910; see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S., at 410, 91 S. Ct., at 2011 (“For people in Bivens' shoes, it is damages or nothing”). It is this recognition that has required the denial of absolute immunity to most public officers. At the same time, Heather Meeker, “Clearly Established” Law in Qualified Immunity Analysis for Civil Rights Actions in the Tenth Circuit, 35 Washburn L.J. 79, 81 (1995) (footnotes omitted). 31 Section 1983 of Title 42 of the United States Code is limited to federal constitutional claims asserted against state actors. Bivens actions are limited to federal actors. “Bivens” refers to the case of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), in which the United States Supreme Court judicially created a cause of action to redress a federal official’s violation of a constitutional right. Black’s Law Dictionary 191 (9th ed. 2009). Although in Harlow, the Plaintiff asserted a Bivens action against a defendant employed by the federal government, the Supreme Court has iterated on numerous occasions that “the qualified immunity analysis is identical under either cause of action.” Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 1696, 143 L.Ed.2d 818, 827 (1999). 28 however, it cannot be disputed seriously that claims frequently run against the innocent as well as the guilty—at a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will “dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.” Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949), cert. denied, 339 U.S. 949, 70 S. Ct. 803, 94 L.Ed. 1363 (1950). Id. To address these competing values, the Court announced an objective legal reasonableness standard, by which an official is entitled to immunity from suit if her conduct was reasonable in light of established constitutional and statutory law; “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S. Ct. at 2738, 73 L. Ed.2d at 410.32 Accordingly, even if a court determines that the conduct violated constitutional norms, if the unconstitutionality of the conduct was not “clearly established” at the time the official engaged in such conduct, the official is entitled to immunity from suit. See id.at 818, 102 S. Ct. at 2738, 73 L. Ed.2d at 410-11. Because one of the goals of the qualified immunity defense is to limit the financial and time burdens attendant to a law suit, the Court has iterated that qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation” or “immunity from suit” itself, Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed.2d 411, 32 Although applied to a presidential aide in Harlow, the Supreme Court has recognized that law-enforcement officers are also entitled to qualified immunity. See, e.g., Pearson v. Callahan, 555 U.S. 223, 227, 129 S.Ct. 808, 813, 172 L.Ed.2d 565, 570 (2009). 29 425 (1985) (emphasis in original), so that the Supreme Court has “stressed the importance of resolving immunity questions at the earliest possible stage in litigation,” such as summary judgment. Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed.2d 589, 595 (1991). The gravamen of a qualified immunity analysis is whether the government official’s conduct is reasonable in light of the state of the law in existence at the time of the conduct. See, e.g., Pearson v. Callahan, 555 U.S. 223, 244, 129 S. Ct. 808, 822, 172 L. Ed.2d 565, 580-81 (2009). Accordingly, when statutory law expressly authorizes the government actor’s conduct, qualified immunity is generally appropriate. Pierson v. Ray, 386 U.S. 547, 555, 87 S. Ct. 1213, 1218, 18 L. Ed.2d 288, 295 (1967) (noting that a police officer would be “excus[ed] from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional on its face or as applied”)33; accord Swanson v. Powers, 937 F.2d 965, 969 (4th Cir. 1991) (“Reliance upon the presumptive validity of state law may be ‘the paradigm’ of objectively reasonable conduct that the grant of immunity was designed to protect.”). Should a government official have acted in contravention of “clearly established” statutory or constitutional rights, however, qualified immunity is not afforded. See Mitchell, 472 U.S. at 530, 105 S. Ct. at 2817, 86 L. Ed.2d at 428; see, e.g., Hope v. Pelzer, 33 Although Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L. Ed.2d 288 (1967) was decided prior to Harlow, courts have continued to adhere to the principle that a police officer is generally entitled to qualified immunity when he or she relies on an enacted statute or ordinance. See, e.g., Swanson v. Powers, 937 F.2d 965, 969 (4th Cir. 1991). 30 536 U.S. 730, 741-42, 122 S. Ct. 2508, 2516, 153 L. Ed.2d 666, 679-80 (2002) (concluding that prison guards who twice handcuffed a prisoner to a “hitching post” for disruptive conduct were not entitled to qualified immunity from claims asserted under Section 1983 alleging deprivation of Eighth Amendment rights, because of, inter alia, “binding Eleventh Circuit precedent, an Alabama Department of Corrections regulation, and a DOJ report informing” the prison guards “of the constitutional infirmity in the use of the hitching post.”). In the sarcomere between law expressly authorizing an act and that which would prohibit that act, the Supreme Court has, on a case-by-case basis, generally afforded qualified immunity to government officials in both Section 1983 and Bivens actions, because the official under scrutiny did not violate “clearly established law.” In Reichle v. Howards, 566 U.S. __, 132 S. Ct. 2088, 2091, 182 L. Ed.2d 985, 990 (2012), for example, a mall patron, Reichle, had approached former Vice President Richard Cheney, commenting that the latter’s “policies in Iraq are disgusting”, and proceeded to touch the Vice President’s shoulder. The Secret Service, thereafter, interrogated Reichle and transferred him to the custody of the local Sherriff’s department, where he was arrested on charges of harassment, which were eventually dismissed. Id. at __ , 132 S. Ct. at 2092, 182 L. Ed.2d at 990. Reichle later filed a Bivens action against the Secret Service agents, asserting, inter alia, that he had been arrested in retaliation for criticizing the Vice President, in violation of his First Amendment right to free expression. Id. at __ , 132 S. Ct. at 2092, 182 L. Ed.2d at 990-91. The Secret Service agents asserted a qualified 31 immunity defense, contending that it was not “clearly established” that a retaliatory arrest would have violated the First Amendment. Id. at __, 132 S. Ct. at 2092, 182 L. Ed.2d at 991. The United States District Court denied the motion, and the United States Court of Appeals for the Tenth Circuit affirmed. Id. In reversing the judgment of the Tenth Circuit Court of Appeals, the Supreme Court reasoned that, the “Tenth Circuit’s precedent governing retaliatory arrests was far from clear”, and thus, concluded that the Secret Service agents were entitled to qualified immunity. Reichle, 566 U.S. at __ , 132 S. Ct. at 2095, 182 L. Ed.2d at 993. Similarly, in Pearson, 555 U.S. at 227-28, 129 S. Ct. at 813, 172 L. Ed.2d at 570-71, in an undercover sting operation, police officers arrested the respondent, Alton Callahan, inside of his home and searched his home incident to arrest after he attempted to sell methamphetamine to a police informant. Callahan filed a Section 1983 action against the police officers, alleging that the warrantless entry into his home violated the Fourth Amendment. Id. at 228-29, 129 S. Ct. at 814, 172 L. Ed.2d at 571. The District Court granted summary judgment in favor of the officers on the basis of qualified immunity, reasoning that many other federal district and circuit courts had adopted the “consent-once-removed doctrine”, which “permits a warrantless entry by police officers into a home when consent to enter has already been granted to an undercover officer or informant who has observed contraband in plain view”, and thus, the District Court reasoned, the officers reasonably could have believed their conduct was lawful. Id. at 229, 129 S. Ct. at 814, 172 L. Ed.2d at 571-72. The United States Court of Appeals for the 32 Tenth Circuit reversed, concluding that it was “clearly established” that warrantless entries into the home were presumptively unreasonable. Id. at 230, 129 S. Ct. at 814, 172 L. Ed. 2d at 572. Reversing, the Supreme Court observed that there was a circuit split regarding the “consent-once-removed doctrine”, and concluded, “[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.” Id. at 245, 129 S. Ct. at 823, 172 L. Ed. 2d at 581 (citation and quotation omitted). In another Section 1983 claim alleging a violation of Fourth Amendment rights, the Supreme Court in Wilson v. Layne, 526 U.S. 603, 616, 119 S. Ct. 1692, 1700, 143 L. Ed.2d 818, 831 (1999) concluded that officers who had brought media members into the home of a suspect while executing a warrant had violated the Fourth Amendment, but concluded that the police officers were entitled to qualified immunity. In so doing, the Court observed that, at the time of the media ride-a-long, “there were no judicial opinions holding that this practice became unlawful when it entered a home.” Id. Accordingly, “[g]iven such an undeveloped state of the law, the officers in this case cannot have been expected to predict the future course of constitutional law”, and therefore, were entitled to qualified immunity. Id. at 617, 119 S. Ct. at 1701, 143 L. Ed.2d at 832 (citation and quotation omitted). In considering just where on the spectrum of qualified immunity the government official’s actions have fallen, particularly in the context of alleged Fourth Amendment violations, the Supreme Court has recognized that consideration must be given to the 33 factual circumstances the official confronted. Anderson v. Creighton, 483 U.S. 635, 640-41, 107 S. Ct. 3034, 3039-40, 97 L. Ed.2d 523, 531 (1987). In Anderson, a federal agent, Russell Anderson, conducted a warrantless search of the Creighton family home in search of a man suspected of committing a bank robbery. Id. at 637, 107 S. Ct. at 3037, 97 L. Ed.2d at 529. The Creightons, thereafter, filed a Bivens action against Anderson asserting a violation of their Fourth Amendment rights; the United States District Court dismissed the claim and the Eighth Circuit reversed, concluding that Anderson was not entitled to qualified immunity because “the right Anderson was alleged to have violated—the right of persons to be protected from warrantless searches of their home unless the searching officers have probable cause and there are exigent circumstances—was clearly established.” Id. at 637-38, 107 S. Ct. at 3038, 97 L. Ed.2d at 529. The Supreme Court reversed the Eighth Circuit, concluding that it had erred by refusing “to consider the argument that it was not clearly established that the circumstances with which Anderson was confronted did not constitute probable cause and exigent circumstances.” Id. at 640-41, 107 S. Ct. at 3039, 97 L. Ed.2d at 531. Accordingly, the Court remanded the case to the Eighth Circuit and instructed the court to consider the relevant inquiry, which it deemed to be, the “objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed.” Id. at 641, 107 S. Ct. at 3040, 97 L. Ed.2d at 532 (emphasis added). Not surprisingly, in the instant case, the parties assert that the conduct in issue falls 34 at different points on the qualified immunity spectrum. Officer Schultz and Sergeant Proctor not only assert that the Baltimore City Code affirmatively authorized their conduct, but they also contend that there is no clearly established law prohibiting “the seizure of vehicles when the vehicles are illegally parked and present multiple dangers to the environment and public safety.” Dehn Motor disagrees, arguing that the Baltimore City Code did not authorize the towing, and instead, takes the position that pursuant to Duncan v. State, 281 Md. 247, 378 A.2d 1108 (1977); Huemmer v. Mayor and City Council of Ocean City, 632 F.2d 371 (4th Cir. 1980); and Associates Commercial Corp. v. Wood, 22 F. Supp. 2d 502, 504 (D. Md. 1998), “[i]t strains credulity that two police officers, presumably trained in the constitutional rights afforded under the Fourth and Fourteenth Amendment, could reasonably believe that they could simply seize and impound 67 automobiles without a court order or warrant”. Judge Cannon concluded that the Officers’ actions fell in the sarcomere between law which expressly authorized the officers’ conduct and that which affirmatively prohibited it. While she referenced various Baltimore City Ordinances,34 she stated that she was not concluding that “each one of them applied.” Earlier in the hearing, she also 34 As discussed in greater detail, supra, Judge Cannon referenced Article 31, Section 6-3 of the Baltimore City Code, providing that, “[n]o vehicle shall be so parked or otherwise stopped as to prevent the free passage of other vehicles or street cars in both directions at the same time”; Article 19, Section 50-2 of the Baltimore City Code, which provides that, “no person may in any manner obstruct any street, lane, sidewalk, footway, or alley in the City or any of their gutters”; and Article 31, Section 31-8 of the Baltimore City Code, which permits the towing of vehicles deemed abandoned by operation of law when the vehicle is stored in violation of zoning regulations. 35 stated that counsel for Dehn Motor had not directed her to any law “that says that a car can’t be towed without a warrant.” As the Supreme Court dictated in Anderson, to analyze a qualified immunity defense, we must consider the circumstances with which the officers were confronted. Anderson, 483 U.S. at 640-41, 107 S. Ct. at 3039, 97 L. Ed.2d at 531. Viewing the facts in a light most favorable to the non-moving party, as we must on a motion for summary judgment, Jones v. Mid-Atl. Funding Co., 362 Md. 661, 667, 766 A.2d 617, 620 (2001), we note that both officers testified in their deposition that the vehicles were towed because they were illegally parked on the street and because the vehicles parked on the Dehn Motor lots posed environmental and fire hazards, as they were leaking fluids into the ground.35 35 In its brief, Dehn Motor asserts that the officers offered these justifications only as a pretext. Pretext, however, is irrelevant in a qualified immunity analysis in which the sole inquiry is whether the officer’s actions were objectively reasonable under the circumstances. In Wullschleger v. Peters, 28 F.Supp.2d 549 (D. Neb. 1998), Wullschleger brought a Section 1983 action against city police officers, deputy sheriffs, and state troopers who executed two search warrants of his residence, asserting that police officers violated his Fourth Amendment rights when they took property not identified by the search warrant. Id. at 552-53. The officers urged that they were entitled to qualified immunity, because, they argued, the items seized were seized pursuant to the “plain view doctrine.” Id. at 558. In an attempt to defeat the qualified immunity claim, Wullschleger argued that the search warrant, which had been issued to search for allegedly stolen items in one investigation, was actually a “pretext” or a “ruse” to search for evidence in another investigation. Id. In rejecting this argument, the District Court Judge reasoned, inter alia, “an officer’s subjective beliefs are not relevant to qualified immunity analysis”, and therefore, “the officers’ hope of finding incriminating evidence of another crime when executing the search warrant does not preclude the qualified immunity defense.” Id. at 559; see also, e.g., Bridgewater v. Caples, 23 F.3d 1447, 1449 (8th Cir. 1994) (reasoning that an officer was entitled to qualified immunity from Section 1983 claims asserting violations of Fourth Amendment rights under circumstances in which officer did not believe he had probable cause to make an arrest, because an officer’s subjective intent is irrelevant as long as an objectively reasonable officer could have concluded that probable 36 Dehn Motor directs us to no judicial opinion or statute, nor have we discovered any, that would affirmatively prohibit the towing of the vehicles leaking fluids that the officers believed created fire or environmental hazards. Indeed, in Duncan, 281 Md. 247, 378 A.2d 1108, a case upon which Dehn Motor relies, we opined that the warrantless search and seizure of a vehicle during the course of a criminal investigation violated the Fourth Amendment, in part, because there had been no showing that the seized vehicle posed a public safety hazard. In Duncan, police officers engaged in a warrantless search and impoundment of a vehicle parked on the lawn of a private residence during the course of a criminal investigation. The Court of Special Appeals concluded that the police actions were reasonable, because they were acting as community caretakers. On certiorari, we reversed; in so doing, we reviewed the Supreme Court’s jurisprudence relative to the community caretaking function and observed that “[a]ctivities concerning automobiles carried out by local police officers in the interests of public safety . . . frequently result in the automobile being taken into custody.” Id. at 256, 378 A.2d at 1114. We nevertheless concluded that the officers’ actions violated the Fourth Amendment, because, inter alia, “[t]he evidence is clear that the automobile was parked on private property, not on a public highway or street,” and moreover, the vehicle “was not impeding traffic or threatening public safety and convenience.” Id. at 259, 378 A.2d at 1116.36 Our own jurisprudence, cause existed). 36 The remaining cases upon which Dehn Motor relies as creating “clearly established rights” are even more attenuated from the facts of the present case, and thus, unavailing. In Huemmer v. Mayor and City Council of Ocean City, 632 F.2d 371 (4th Cir. 1980), the 37 thus, supports the notion that towing vehicles from private property that would threaten public safety could be permissible, without a warrant. Taking into consideration the circumstances about which the officers testified that they confronted and the absence of statutory and case law prohibiting their actions without a warrant when they ordered the towing of vehicles leaking fluids that they believed constituted environmental and fire hazards, we determine that the threshold for qualified immunity has been met, and they are entitled to its protection. United States Court of Appeals for the Fourth Circuit determined that an ordinance providing that “‘[a]ny property owner . . ., when a vehicle is illegally parked upon his private property (to) notify any authorized towing agency and request removal of said vehicle” was unconstitutional because “[n]o opportunity was presented for notice and a hearing to establish whether or not the initial removal of the vehicle was rightful or wrongful.” Huemmer, 632 F.2d at 372 (alterations in original). Likewise, in Associates Commercial Corp. v. Wood, 22 F. Supp. 2d 502, 504, 506 (D. Md. 1998), the United States District Court for the District of Maryland, relying on Huemmer, determined that a Maryland statute permitting “any person on whose property a totally inoperable vehicle more than 8 years old has remained for more than 48 hours without the consent of the owner of the property [to] transfer the vehicle for scrap without a certificate of title or notification” was unconstitutional, because it failed to provide notice and a hearing before seizure of the vehicles. These cases, however, only addressed the seizure of vehicles when there is no threat to public health or safety. 38 JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONERS. 39