Employer Liability when an Employee Causes an Auto Accident

Employer Liability when an Employee Causes an Auto Accident

In Maryland, the doctrine of respondeat superior means that an employer to be held liable for the negligent acts of an employee if "they were in furtherance of the employer's business and were ‘authorized’ by the employer.” Sawyer v. Humphries, 322 Md. 247, 587 A.2d 467, 470 (1991). When an employee unlawfully causes an accident that injures another, the employer is liable if he or she has either expressly or impliedly authorized the employee to use the vehicle in the furtherance of the employer's business, and the employee is in fact engaged in such work at the time of the accident.   IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND STACIA LYNN KERNS * * v. * Civil No. CCB-07-1006 * UNITED STATES OF AMERICA * * * ****** MEMORANDUM Plaintiff Stacia Lynn Kerns brought this action against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). Her claims arise from an automobile accident caused by the allegedly negligent conduct of Debra Scott (“Scott”) that resulted in the death of the plaintiff’s husband, Dennis Kerns, Jr. (“Kerns”). The United States now moves to dismiss her claims or for summary judgment on the grounds that Scott was not acting within the scope of her employment at the time of the accident. Kerns has filed a cross-motion for summary judgment or, in the alternative, for certification of questions of law to the Maryland Court of Appeals. The issues have been fully briefed and no oral argument is necessary. See Local Rule 105.6. For the reasons stated below, the defendant’s motion will be granted, and the plaintiff’s motion will be denied. BACKGROUND At approximately 9:30 p.m. on June 24, 2005, Scott and Kerns were involved in a traffic accident on Maryland Route 175 near the Fort Meade Army Base in Anne Arundel County, Maryland. Kerns subsequently died from injuries sustained in the accident. The Anne Arundel County Police concluded that the accident was caused by Scott’s negligent driving and failure to yield to oncoming traffic when turning left from Route 175 into a parking lot. (See Fatal Accident Report, Def.’s Ex. 5.) 2 At the time of the accident, Scott was in Maryland to attend the 99th Regional Readiness Command’s (“RRC”) Key Volunteer and Staff Training Meeting, which was being held from June 24 to June 26, 2005. (See Wilson Email & Meeting Agenda (June 15, 2005) (“Agenda”), Def.’s Ex. 2, at Scott 002.) Scott was invited to attend in her capacity as a contract employee of the RRC. On April 27, 2005, she received an email from her supervisor, Barbara Wilson, regarding the meeting. It discussed three forms of transportation attendees might use to travel from their homes to the Radisson Hotel in Annapolis, Maryland, where the meeting was to take place. They could fly to Baltimore-Washington International Airport (“BWI”). Alternatively, an attendee could drive to the hotel in his or her personal automobile or a rental car. The email suggested that those flying into BWI could travel from the airport to the hotel using the “Super Shuttle,” which would cost twenty-nine dollars per person or, “[i]f there [were] sufficient persons flying, a van may be rented for all to travel to the hotel.” Those planning to rent a car were instructed to “fill out the registration form accordingly,” and all attendees’ travel plans were to be “reflected on [their] orders.” (25-26 June Key Vol Training Meeting Email Chain (“Wilson Email”), Def.’s Ex. 1, at Scott 007–08.) Scott received invitational travel orders, dated May 20, 2005, to travel from her home in Pennsylvania to the Radisson Hotel in Annapolis. The orders instructed that “[i]f traveling by non-government procured commercial transportation, the maximum reimbursement will be limited to the least costly service which would have permitted satisfactory completion of the mission.” Although they did not specify how Scott was to travel from BWI to the hotel, the orders expressly stated, “Rental car is not authorized.” (Scott Travel Voucher, Def.’s Ex. 7, at US 00290.) 3 On June 24, Scott flew from Pittsburgh International Airport to BWI, landing at approximately 1:06 p.m. (Scott Decl., Def.’s Ex. 9, ¶ 3.) She could not check into the Radisson until 4:00 p.m., and there were no events related to the meeting scheduled for that day. (Wilson Email at Scott 008; Agenda at Scott 002.) Prior to the flight, Scott had a conversation with Barbara Wilson and Thomas Cannon, a coworker, in which they asked Scott if she would like to rent a car or be listed as a driver on one of their rental cars. (Wilson Dep. 33:4–33:8, June 11, 2010; Cannon Dep. 20:13–20:18, Apr. 14, 2010.) Wilson reports that Scott declined because she was going to “do her own thing with her own rental car.” (Wilson Dep. 33:10–33:11; see also id. at 68:18–68:21.) After her flight landed, Scott picked up a rental car from Alamo Rent-a-Car; in order to receive the government rate, she had previously reserved the vehicle through the Carlson Wagonlit travel office at Fort Dix. (Scott Dep. 57:1–57:13, Apr. 14, 2010.) Scott paid for the rental car, which was expected to cost $132.00, with her personal credit card. (Scott’s Alamo Contract, Def.’s Ex. 4.) At the time Scott rented the car, it was not authorized under her travel orders, but the parties dispute whether, had the accident not occurred, the orders would have been amended. On previous occasions, travel orders that initially provided that a rental car was not authorized were later amended to permit the rental of a vehicle. (Scott Dep. 48:21–49:12, 76:20–77:9; Wilson Dep. 25:17–26:7; Cannon Dep. 24:17–25:11.) Indeed, Cannon’s May 20, 2005, travel orders for the meeting did not authorize him to rent a car, but, on June 24, the orders were amended to authorize a rental car. At BWI, Cannon rented a car, which he used to transport multiple people to and from the airport, and he was reimbursed for the cost of the rental. (Cannon Travel Voucher, Def.’s Ex. 13, at US 00314–17; Wilson Dep. 39:8–39:14; Cannon Dep. 39:3–39:13.) Scott’s travel orders, however, were never amended, and she did not request or receive 4 reimbursement for her rental car. In her deposition, she claimed she failed to request reimbursement because she was involved in the accident, but she insisted she would have received reimbursement had she requested it. (Scott Dep. 53:20–54:4, 74:2–75:2.) Nevertheless, she acknowledged that in prior instances in which she was reimbursed for a rental car not initially authorized under her travel orders, she had used it to transport multiple people or perform a job-related task. (Id. at 99:8–100:4.) Unlike Cannon, Scott did not use her rental car to transport other attendees to the conference. Rather, after renting a car at BWI at 1:34 p.m. (Scott’s Alamo Contract, Def.’s Ex. 4), she proceeded directly to Baltimore’s Inner Harbor to sightsee and shop. Between 5:00 and 5:30 p.m. that afternoon, Scott left Baltimore and began to drive to Annapolis. Encountering heavy traffic, she decided to stop at the Fort Meade PX, to which she had access because her husband was a member of the military. She did not purchase anything while there, and at no point after leaving BWI did she purchase any supplies for the RRC meeting or perform any other job-related task. (Scott Dep. 60:16–62:15.) She left Fort Meade shortly after 9:00 p.m., intending to drive to the Radisson Hotel in Annapolis. At approximately 9:30 p.m., while attempting to turn into a parking lot to look at a map, she drove directly in front of Kerns’s motorcycle. (Id. at 63:3–67:15.) Kerns later died from his injuries. After the accident, Scott took a taxi to the Radisson in Annapolis. She was too upset to participate in the meeting, so the following morning she took a taxi to BWI and returned to Pittsburgh. (Id. at 69:11–70:6.) Subsequently, she requested and received reimbursement for the mileage between her home and the Pittsburgh airport and the cost of the taxis to and from the Radisson. She was not reimbursed for the rental car. (Scott Travel Voucher, Def.’s Ex. 7, at US 00287–92.) 5 Ms. Kerns brought suit against the United States on April 19, 2007. On February 2, 2008, this court granted the defendant’s motion to dismiss for lack of jurisdiction on the grounds that the plaintiff failed to show Scott was acting in the scope of her employment, as required under 28 U.S.C. § 1346(b). The Fourth Circuit, on appeal, held that this question was sufficiently intertwined with the merits that the plaintiff should be permitted to conduct discovery. See Kerns v. United States, 585 F.3d 187 (4th Cir. 2009). Having now completed discovery, both parties move for summary judgment. STANDARD OF REVIEW Federal Rule of Civil Procedure 56 provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).1 The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S. Ct. 2505 (1986) (emphasis in original). Whether a fact is material depends upon the substantive law. Id. at 248. “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. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (internal quotation marks and citation omitted) (alteration in original). 1 The United States has moved to dismiss pursuant to Rule 12(b)(1) or for summary judgment. The Fourth Circuit held that, in this context, dismissal under Rule 12(b)(1) is inappropriate. Kerns, 585 F.3d at 192. Therefore, I will consider this as a motion for summary judgment. 6 The court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion,’” Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769 (2007) (alteration in original) (quoting United States v. Diebold, 369 U.S. 654, 655, 82 S. Ct. 993 (1962)), but the court also must abide by the “affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.” Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993) (internal quotation marks omitted). ANALYSIS Where a plaintiff has been injured as a result of the tort of a federal employee acting within the scope of her employment, the United States is liable under the FTCA to the extent a private person in the same position would be liable under state law. 28 U.S.C. § 1346(b); FDIC v. Meyer, 510 U.S. 471, 477, 114 S. Ct. 996 (1994). Here, the plaintiff asserts that, under Maryland law, the United States is vicariously liable for Scott’s negligence. In Maryland, “[t]he doctrine of respondeat superior . . . allows an employer to be held vicariously liable for the tortious conduct of its employee when that employee was acting within the scope of the employment relationship.” Oaks v. Connors, 339 Md. 24, 660 A.2d 423, 426 (1995) (citations omitted). The only question presented at this time, therefore, is whether Scott was acting within the scope of her employment when the accident occurred. Generally, Maryland courts will find an employee’s tortious acts to be within the scope of her employment if “they were in furtherance of the employer's business and were ‘authorized’ by the employer.” Sawyer v. Humphries, 322 Md. 247, 587 A.2d 467, 470 (1991). In the context of automobile accidents, however, this rule has been narrowed: “It is now held by the great weight of authority that a master will not be held responsible for negligent operation of a servant’s automobile, even though engaged at the time in furthering the master’s business unless the master expressly or impliedly 7 consents to the use of the automobile, and . . . had the right to control the servant in its operation, or else the use of the automobile was of such vital importance in furthering the master’s business that his control over it might reasonably [be] inferred.” Oaks, 660 A.2d at 426 (quoting Dhanraj v. Potomac Elec. Power Co., 305 Md. 623, 506 A.2d 224, 226 (1986)) (omission and alteration in original). Otherwise stated, a plaintiff may successfully invoke the doctrine of respondeat superior only if “an employer has either expressly or impliedly . . . authorized the [employee] to use [the] vehicle in the execution of his duties, and the employee is in fact engaged in such endeavors at the time of the accident.” Id. at 427 (internal quotation marks, emphasis, and citations omitted). The evidence here cannot reasonably give rise to an inference that the government authorized Scott to use a rental car during the conference. Her travel orders explicitly stated that a rental car was not authorized. Although it was not uncommon for orders to be amended, there is no reason to believe this would have occurred with Scott’s orders. Notably, the orders for the other RRC staff member to rent a car, Cannon, had already been amended to authorize the rental of a car. It is not reasonable to infer that RRC commanders altered Cannon’s orders on the morning of June 24th but decided to wait until after the conference to similarly amend Scott’s travel orders. Furthermore, Scott’s insistence that she would have been reimbursed by the government for the rental car is belied by the fact that she never requested reimbursement for the car, while she did submit and receive reimbursement for the taxi rides to and from the Radisson. In light of the instruction in her travel orders that reimbursement would be capped by the “least costly service which would have permitted satisfactory completion of the mission,” a fact-finder could not reasonably conclude that, after opting to fly rather than drive to the meeting, Scott would be authorized to rent a car solely for her own use. (Scott Travel Voucher, Def.’s Ex. 7, at US 00290.) Scott’s rental car was expected to cost $132.00, more than double the $58.00 that 8 the Super Shuttle would have charged to transport one person to and from the airport. For a rental car to be cost effective, as was required by the travel orders, it would be necessary for the car to be used to transport multiple people—as occurred with Cannon’s car. Indeed, Wilson and Cannon attested that they did not expect each person flying into BWI to rent his or her own vehicle. (See Wilson Dep. 52:18–53:3; Cannon Dep. 38:20–39:11.) The evidence permits no genuine dispute as to whether Scott’s rental car was authorized by the government; it was not. Moreover, even if one could reasonably conclude that the rental car was authorized, summary judgment for the government would be appropriate because Scott was not actually engaged in executing job-related duties at the time of the accident. Oaks v. Connors, 660 A.2d 423, is instructive as to when Maryland courts consider an employee to be “actually performing . . . designated job responsibilities.” Id. at 427. While driving to work, Oaks was involved in an accident with the plaintiff, who sued Oaks’s employer on a theory of vicarious liability. Id. at 425. The Maryland Court of Appeals concluded that the employer was not liable because, although it “required Oaks to have a vehicle available for use in the execution of his duties,” his only job assignments were related to providing security to automated teller machines, and he was not performing this type of task at the time of the accident. Id. at 427. In the present action, Scott’s job-related duties were limited to performing administrative tasks and training RRC volunteers. (See Scott Dep. 18:3–21:9.) She was not engaged in these duties at the time of the accident. She had not been instructed to go to Baltimore or Fort Meade by her superiors, and she was not shopping for anything related to the conference. (Id. at 91:18–92:10.) The mere fact that she was driving towards Annapolis to attend the RRC meeting is not sufficient to find that she was engaged in the execution of job-related duties. 9 The Maryland Court of Appeals has also emphasized the importance of “[t]he ‘right to control’ concept . . . to a respondeat superior analysis in the motor vehicle context.” Oaks, 660 A.2d at 426–27. The RRC, however, had no control over Scott’s use of the rental car. It dictated neither her route nor her means of transportation. See Dhanraj, 506 A.2d at 227 (concluding that an employer was not vicariously liable for its employee’s automobile accident, which occurred while he was traveling to a training course, even though the employer paid a travel allowance because the employee “could travel to and from the facility as he pleased, by any means or route he chose” and the employer’s “only concern was that he take the course, not how he got there”); Sheets v. Chepko, 83 Md. App. 44, 573 A.2d 413, 416–17 (Ct. Spec. App. 1990) (finding “no indication” that an employer controlled an employee while he was driving to work where the employee “could take any route and any means of transportation”). Indeed, Scott traveled north to Baltimore from BWI—away from Annapolis—before she stopped at Fort Meade and, finally, departed for the Annapolis Radisson. She also rented her own car, despite being encouraged by her employer to take the Super Shuttle or share a vehicle with other conference attendees. In view of these facts, Scott’s employer did not have the requisite “right of control” to impose vicarious liability. The plaintiff urges that this case is indistinguishable from Regal Laundry Co., Inc. v. A.S. Abell Co., 163 Md. 525, 163 A. 845 (1933), mandating the imposition of vicarious liability. In Regal Laundry, however, a Baltimore Sun reporter was involved in an accident while returning to Baltimore from a meeting on which he was assigned to report. The Court of Appeals held that the Sun had implicitly authorized the use of the reporter’s personal automobile because his editor knew the reporter would be driving to and from the meeting and the reporter received reimbursement for his mileage. Id. at 847. It also found that the reporter was still engaged in the 10 execution of his duties, which included returning to the Sun’s headquarters in Baltimore for a new assignment, at the time of the accident and that there was “no deviation from the route or instructions” by the reporter. Id. at 848. Here, in contrast, Scott’s use of the automobile was not authorized, and she did not receive reimbursement. Further, she did not proceed directly from BWI to the meeting site, but rather deviated from a direct route so that she could sightsee in Baltimore and shop at Fort Meade. The facts here are distinct from those present in Regal Laundry, and it is not controlling. The plaintiff further contends that this court should import the traveling-employee, see Mulready v. Univ. Research Corp., 360 Md. 51, 756 A.2d 575 (2000), and special-mission, see Coats & Clark’s Sales Corp. v. Stewart, 39 Md. App. 10, 383 A.2d 67 (Ct. Spec. App. 1978), doctrines from workers’ compensation cases to find that Scott was acting within the scope of her employment for vicarious liability purposes. As explained in this court’s prior opinion in this case, under Maryland law, “an ‘analysis of scope of employment for workers’ compensation purposes is not apposite to the analysis of scope of employment for establishing liability under respondeat superior,’” which is a narrower test. Kerns v. United States, 534 F. Supp. 2d 633, 639 (D. Md. 2008) (quoting Henderson v. AT&T Info. Sys., Inc., 78 Md. App. 126, 552 A.2d 935, 941 (Ct. Spec. App. 1989)), rev’d on other grounds, 585 F.3d 187. Maryland courts, including the Court of Appeals, have declined to apply workers’ compensation doctrines in analyzing the vicarious liability of an employer for its employees’ acts. See, e.g., Dhanraj, 506 A.2d at 227–28; Henderson, 552 A.2d at 941.2 2 The plaintiff argues that this court should certify questions of state law—including questions regarding the applicability of scope-of-employment doctrines from workers’ compensation cases to cases of vicarious liability—to the Maryland Court of Appeals rather than granting the defendant’s motion for summary judgment. The “available state law,” however, is not so “insufficient” that certification is appropriate in the present action. Roe v. Doe, 28 F.3d 404, 407 11 In sum, the only reasonable inference supported by the evidence is that Scott was not acting within the scope of her employment at the time of the accident. Accordingly, judgment will be entered in favor of the defendant. March 28, 2011 /s/ Date Catherine C. Blake United States District Judge (4th Cir. 1994). The Maryland Code permits the Court of Appeals to answer questions certified to it only if “there is no controlling appellate decision,” Md. Code Ann., Cts. & Jud. Proc. § 12- 603, and as discussed above, Maryland appellate courts have rejected the application of these doctrines in vicarious-liability cases. See Sheets, 573 A.2d at 418 (“[I]n Dhanraj, the Court of Appeals specifically rejected the application of principles of Worker’s Compensation to a determination of whether a particular activity was within the scope of employment for purposes of establishing vicarious liability of an employer.”); see also Buckingham v. United States, 124 F. Supp. 2d 943, 944–45 (D. Md. 2000) (declining to certify to the Maryland Court of Appeals a question regarding the applicability of the special-mission doctrine in the respondeat superior context). 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND STACIA LYNN KERNS * * v. * Civil No. CCB-07-1006 * UNITED STATES OF AMERICA * * * ****** ORDER For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that: 1. The defendant’s motion to dismiss or for summary judgment (ECF no. 31) is GRANTED; 2. The plaintiff’s cross-motion for summary judgment or, in the alternative, to certify questions of law to the Maryland Court of Appeals (ECF no. 38) is DENIED; 3. Judgment is entered in favor of the defendant against the plaintiff; and 4. The Clerk of the Court shall CLOSE this case. March 28, 2011 /s/ Date Catherine C. Blake United States District Judge

Lead Poisoning Rates Remain Steady

Lead Poisoning Rates Remain Steady 

2,622 youngsters up to age 6 were found to have harmful levels of lead in their blood last year, according to an annual report just released by the Maryland Department of the Environment. That's down 4 percent from 2012, though the number of children with seriously elevated lead levels grew slightly, from 364 to 371. Source Baltimore Sun Landlords are required to ensure there is no peeling, chipping or flaking paint that might be ingested by infants or toddlers.

Introduction into Class Actions

Introduction into Class Action Cases

Marylanders are more familiar with class action litigation than perhaps before given the recent medical malpractice related class actions emanating from area hospitals. First, there was the stent litigation with St. Joseph Medical Center which settled for $37 million dollars and now the eponymous Dr. Nikita Levy class action. In the latter, Dr. Levy is alleged to have violated the privacy of his female patients by videotaping them without their knowledge of consent during medical procedures while he worked for Johns Hopkins.

A. Class Settlement Certification

To obtain class certification, the plaintiffs must meet several requirements aimed at ensuring that a class action advances the interests of those impacted by alleged harm and does so in a fair manner.
  1. Numerosity - As to numerosity, the parties have put forth sufficient evidence that the proposed classes will amount to large amount of people and that joinder of all members is impractical.
  2. Commonality - The named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected.
  3. Typicality - Usually considered along with commonality. The harm and claims suffered the by the class are similar and thus the class representative can adequately protect the rest of the members.
  4. Adequacy of representation - This goes the ability and experience of the lead attorneys representing the class as well ensuring the class representative's interest reflect those of the other class members.
  5. That “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Class actions usually settle, but probably not as quick as Johns Hopkins Hospital and the plaintiff's reached a settlement of a jaw dropping $190,000.00. The settlement has to be approved by the Courts before it can become final. Both plaintiff's included in the class action and the Judge could object to the settlement for a variety of reasons.

B. Approving a Settlement

  • Fairness
Maryland is in the Fourth Circuit Court of Appeals which has has held that a class action  settlement should be approved if it is both “fair” and “adequate.” In re Jiffy Lube Sec. Litig., 927 F.2d 155, 158-59 (4th Cir. 1991). To determine if a settlement is fair the court looks to make sure that the agreement was the result of a bargain and that there was no collusion among those at the bargaining table. In order to accomplish this, the law requires a series of inquiries aimed at sniffing out impropriety by the parties involved.
  1. What was the posture of the case at the time settlement was proposed
  2. How much discovery was completed
  3. Circumstances surrounding the negotiations
  4. Counsel's experience in class action litigation - there are specialists as you can imagine who command top dollar for handling class action litigation which can last for what seems like a lifetime in complex cases.
  • Adequacy
The “adequacy”prong looks at the meat of the settlement relative to the following factors:
  1. How strong is the plaintiffs’ case
  2. Difficulty in proving an essential part of the case or overcoming a potential defense if the case goes to trial t
  3. the anticipated duration and expense of trial
  4. Are the defendant in a financial position to pay a judgment
  5. Is there substantial opposition to the settlement.
Class Notice Required by Due Process All potential Settlement Class members must be notified of the lawsuit, the pending settlement, and the final fairness hearing. The notice should also include information on how to object, opt out of the class if applicable as well as whom and how to contact for more information.

Attorneys’ Fees and Other Expenses are Subject to Court Approval

Once the Class Settlement Agreement is approved, the Court must render a ruling on Class Counsel’s request for attorneys’ fees and reimbursement of expenses.

A. Methods of Fee Calculation

There are two primary methods of calculating attorneys’ fees:
  1.  Lodestar method
Requires the multiplication of the number of hours worked by a reasonable hourly rate.       2.   Percentage This is commonly referred to as contingency fee common in personal injury cases. The difference here is that the court determines what is fair and reasonable fee.  The average fee is between 25%-35% of the recovery according to Class Action Litigation Information. To determine  the reasonableness of the fees, the court evaluates the following factors:
  1. Time and labor expended
  2. Novelty and difficulty of the questions raised
  3. the skill required to handle the case
  4. the attorneys’ opportunity costs inpressing the instant litigation
  5. the customary fee for like work
  6. the attorneys’ expectations at the outset of the litigation
  7. the time limitations imposed by the client or circumstances
  8. the amount in controversy and the results obtained
  9. the experience, reputation and ability of the attorney
  10. the undesirability of the case within the legal community in which the suit arose
  11. the nature and length of the professional relationship between attorney and client;
  12. attorneys’ fees awards in similar cases.
C. Incentive Payment Named plaintiffs also known as class representatives may receive compensation over and above the recovery of other class members known as an incentive payment. This payment is subject to reasonableness as determined by the court relative to amount of effort expended in the case.


As you can see, class actions are a completely different type of case and often requires a significant investment of resources to obtain a fair settlement or win at trial. Class actions offer the average joe an opportunity to right wrongs that on his own might be economically unfeasible by spreading the risk among thousands or more claimants. Taking on a big car company like GM may not be practical for a consumer who vehicle has diminished value due manufacturing defects, but combine ten thousand claimants and you are more likely to get GM's attention. Class actions also help conserve resources for our judicial system by addressing similar claims in an orderly fashion instead of taking each case separately. Imagine the Maryland Courts had to consider claims from Dr. Levy one at a time. The courts may not have time for much else. It would take that much longer to get a hearing on other cases.

3 Serious Accidents in Harford County

A 43-year-old man was killed Saturday night when he was hit by a car in Edgewood, the sheriff's office said.The accident happened on the 1700 block of Trimble Road. The pedestrian was walking along Trimble Road when he was hit by a dark colored Ford Explorer, according to a press release from the sheriff's office.

In another incident, a young man was killed in a three car accident.

Read more: http://www.baltimoresun.com/news/maryland/harford/fallston-joppa/ph-ag-edgewood-pedestrian-fatal-0917,0,4516051.story#ixzz3DQRZcrPc

Product Liability Claims Requirements

Product Liability - Requirements of Successful Claim

In order to recover under a strict liability theory, Plaintiffs must show that: (1) The product was in a defective condition at the time it left the possession or control of the seller; (2) The product was unreasonably dangerous to the user or consumer; (3) The product was expected to and did reach the user or consumer without substantial change in its condition; and (4) The defect was the cause of his injuries. The elements of a negligence action in the products liability context are essentially the same, except that in a negligence action the plaintiff must show a breach of a duty of care by the defendant, while in a strict liability context the plaintiff must show that the product was unreasonably dangerous. Polansky v. Ryobi America Corp., 760 F. Supp. 85, 87 (D. Md. 1991) (applying Maryland law).
  1. Defective as it left seller - Plaintiff must show that the defect existed while the product was under the sellers control. For example, GM's problematic ignition switches can be show to have being defective from the point they were installed in GM vehicles under its control.
  2. No substantial change in product - Plaintiff must show that the product was received in its original condition without modifications.
  3. Damages - Plaintiff must show that but for the product he or she would not have suffered injuries and other issues
  4. Defective condition can be show in one of three ways:
  •  Defect in the manufacturing process
  • Defective design
  • that the product when used as intended is is inherently dangerous
Characteristics that are essential parts of a product such as the fact that gas is flammable are not proof that a product is defective. See In Dudley, the Maryland Court of Special Appeals rejected the plaintiff's argument that natural gas was defective because it is flammable and highly explosive. 632 A.2d at 502. Maryland recognizes that certain conditions are inherently defective including  steering mechanism that would cause a car to swerve off the road, a drive shaft of a vehicle that would separate from the car when driven in a normal fashion. Phipps v. General Motors Corp., 363 A.2d 955, 959 (Md. 1976). The GM ignition switch problem squarely falls in this category because the switch was liable to shut off the vehicle unexpectedly from the time it was installed and it is not supposed to function that way. Click on the link for more on the GM recall and settlement fund. Proof of a safer commercially viable option: A products liability claim requires a plaintiff to plead and prove the presence of a safer, commercially reasonable, alternative. See Nissan Motor Co., Ltd. v. Nave, 740 A.2d 102 (Md. Ct. Spec. App. 1999); Nicholson v. Yamaha Motor Co., Ltd., 566 A.2d 135, 147 (Md. Ct. Spec. App. 1990).  

Hearsay Exception for Medical Diagnosis and Treatment Statements

Hearsay Exception for Medical Diagnosis and Treatment Statements

  A significant part of my work as a personal injury attorney in Baltimore is to review and parse out information from my clients medical records. These medical records are a crucial part of any personal injury claim especially where there has been significant injuries or there was pre-existing conditions. With that in mind, these records can become battle grounds both before and during litigation. One area of contention regards the admissibility of part or all of the medical records. A common objection is based on allegations of hearsay. Hearsay is a statement made outside of the current trial  that is offered in evidence to prove the truth of the issue contained in the statement and  is generally inadmissible in federal court. Fed. R. Evid. 801(c); id. 802. Hearsay includes spoken, written or non verbal conduct.  Id. 801(a).

A. Medical Treatment Exception

As stated above, hearsay is inadmissible, but there are plenty of statements that are hearsay that are essential to achieving justice in a case. As a result, the law has created over twenty different exceptions to the hearsay rule. One key exception for personal injury plaintiffs is Under Rule 803(4) which states that a statement that "is made for—and is reasonably pertinent to— medical diagnosis or treatment” and that “describes medical history; past or present symptoms or sensations; their inception; or their general cause” is not “excluded by the rule against hearsay.”Id. 803(4). The premise here is that someone seeking medical treatment is more likely than not to tell the truth because his or her well being depends on it. To be admissible under Rule 803(4) a statement must undergo a two-part test: “‘(1) the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and, (2) the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.’” Willingham, 412 F.3d at 562 (quoting Morgan v. Foretich, 846 F.2d 941, 949 (4th Cir. 1988)). Under part one, injury victims like any other patients must be able to express what they are experiencing in terms symptoms or sensations and as long as those are necessary for a doctor to make a diagnosis then they pass muster. Accident victims can also talk about what caused injuries such as stating the other vehicle struck the driver side door.  But, if a personal injury victim's statements go beyond seeking treatment such as stating the other driver failed to stop at the stop violate this rule because they assign fault and become in admissible. Ramrattan v.Burger King Corp., 656 F. Supp. 522, 530 (D. Md. 1987).

Business Records Exception

Another important exception for medical records is the business records exception in Federal Rule of Evidence 803 which provides that, “regardless of whether the declarant is available as a witness,” certain records of a regularly conducted activity “are not excluded by the rule against hearsay.” Fed. R. Evid. 803(6). To qualify as a business record, the record must:
  1. It was made at or near the time by—or from information transmitted by—someone with knowledge.
  2. It is kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit.
  3. It was made a part of  a regular practice.
  4. Testimony by a custodian or qualified witness or certification is required as the first three elements.
  5.  Both the method of preparation and source must be trustworthy.
The Fourth Circuit has stated that business records are reliable because businesses depend on these records and that the routine creation of such records increase their reliability.Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 204–05 (4th Cir. 2000)

B. Foundation Testimony

Testimony from the custodian of the records or any other qualified witness is required as foundation for admission of a business record.  The custodian or witness quality to lay foundation of a document if they prove that they are familiar with the record keeping process. In addition, they have to be able to testify that the record was made as part of the the regular activity of the business and it was done near the time of the the event in question. Personal knowledge of the particular record is not required.

C. Certification

As an alternative to bringing a witness to court, which is often very expensive, injury victims can obtain either a sworn or unsworn statement from a custodian or qualified witness to lay the foundation of the document. The statement must include the facts that that preparer knows that the documents are regularly kept in the business at issue and understands the process by which such a document is created.  The witness is allowed to gain this information by discussing the business processes with others and it does not have to be limited to personal knowledge. T

D. Records prepared in anticipation of litigation are inadmissible

Records prepared with an eye toward litigation lack trustworthiness because of the bias inherent in such an endeavor. The person creating the document has a position he or she in advocating with the goal to prevail at trial.  See Fed. R. Evid. 803(6)(D).

Defective Product Claims Require Expert Testimony

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND LOUVINIA JONES * Plaintiff * vs. * CIVIL NO. H-01-2815 REICHERT JUNG, INC. * Defendant * * * * o0o * * * MEMORANDUM OPINION In this civil action, plaintiff Louvinia Jones (“Jones”) has sued defendant Reichert Jung, Inc. (“Jung”) seeking damages for personal injuries. Jones lives in Baltimore City, and Jung is a corporation with its principal office in Buffalo, New York. Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332. Maryland law is therefore controlling in this case. For many years, plaintiff was employed at Johns Hopkins Hospital (“the Hospital”) in Baltimore, Maryland. In part, her duties included the use and operation of the Frigocut 2800 cryostat, a microtome machine designed to slice frozen tissues so that slides may be made. Defendant Jung was the manufacturer of the Frigocut 2800. Plaintiff alleges that as a result of her operation of the machine, she suffered bilateral cubital tunnel syndrome and bilateral carpal tunnel syndrome requiring surgical 2 repair. The complaint is in three counts. Count I asserts a claim of breach of the warranty of merchantability. It is alleged that the machine at issue was not merchantable and that defendant’s breach of the warranty of merchantability with regard to the sale of the machine which contained design and manufacturing defects was the proximate cause of the injuries sustained by plaintiff. Count II seeks a recovery for breach of the warranty of fitness. It is alleged that the machine was not fit for the purpose for which it was manufactured because of design and manufacturing defects. Count III asserts a claim of negligence in the design and/or manufacture of the machine. It is alleged that defendant, with knowledge of the negligent design and/or manufacture of the machine, failed to warn plaintiff and others of the dangers of injury from use of the machine. Compensatory damages in the amount of $13,600,000 are sought by plaintiff. Pursuant to Scheduling Orders entered by the Court, the parties have engaged in and completed discovery. Now pending is defendant’s motion to preclude plaintiff’s experts and for summary judgment. In support of that motion, defendant has submitted numerous exhibits, including affidavits and excerpts from a deposition taken during discovery. Plaintiff in turn has filed an opposition to defendant’s pending motion and has also submitted a number of exhibits. Recently, after defendant had replied to plaintiff’s opposition, a hearing on defendant’s motion was held in open court. Following due consideration of the memoranda, exhibits and 3 arguments of counsel, this Court has concluded that defendant’s motion to preclude experts must be granted and that defendant’s motion for summary judgment must also be granted. In the absence of admissible expert testimony indicating that the Frigocut 2800 cryostat machine was defectively designed or defectively manufactured, plaintiff is not entitled to proceed to trial in this case. Accordingly, summary judgment in favor of defendant will be entered. I Background Facts Plaintiff Jones was employed as a technician in the pathology lab at the Hospital from March 1995 through January 2001. As a part of her job, Jones operated a microtome, namely the Frigocut 2800 cryostat machine manufactured by defendant. This machine is used to slice frozen tissue samples, after which slides are made from the samples for pathologists to study. In using the machine, plaintiff would sit in front of it, operating a hand crank while looking down into the machine to make the cuts. In time, plaintiff while operating the machine began experiencing pain, numbness and tingling in her right arm, wrist and hand. She was diagnosed by her treating physician as having bilateral cubital tunnel syndrome and carpal tunnel syndrome. As a result, surgical procedures were undertaken to correct the problem. According to plaintiff, her medical problems were caused by her operation of the machine, which she alleges was designed and/or manufactured defectively. In response to plaintiff’s claim that her injuries resulted 1Plaintiff also intends to call Dr. Robert Lavin, her treating physician, to testify as to the issue of causation. 4 from her use of the machine, the Hospital directed an employee, James Bukowski (“Bukowski”), to conduct an ergonomic study of plaintiff’s operation of the machine. Bukowski has been conducting ergonomic studies at the Hospital since 1995. He met with plaintiff in July of 2000, observed her operation of the machine, completed an Ergonomic Analysis Survey Form, and prepared a report dated July 19, 2000. Bukowski made three recommendations in his report for the improvement of plaintiff’s work environment. Bukowski recommended: (1) rotating cutting duties among several employees; (2) contacting the manufacturer to determine if the handle could be lengthened and the diameter enlarged and padded; and (3) contacting the manufacturer to see if the gearing on the control wheel could be changed so that it required fewer revolutions for a given amount of cutting. In a draft of the proposed Pretrial Order prepared by her attorney, Roger N. Powell, Esq., plaintiff has identified two liability experts whom she intends to call to testify at the trial, namely Bukowski and Edward J. Bernacki (“Bernacki”).1 Bukowski is an Assistant Environment Health Officer for the Health, Safety and Environment Department at the Hospital. Bernacki is Associate Professor and Director, Occupational Medicine, Johns Hopkins University School of Medicine, and is the Executive Director of the Health, Safety and Environment Department at the Hospital. 2Pursuant to the Second Revised Scheduling Order, depositions and all other discovery had to be completed by June 14, 2002. 5 After the close of discovery,2 counsel for defendant approached Bukowski and Bernacki and obtained affidavits from them. In his affidavit dated June 21, 2002, Bukowski states that he had never concluded that the machine, the handle or the gearing were defectively or negligently designed or manufactured in any way. He also states that he never concluded that the machine was dangerous to use in its current configuration, that he made no determination if the machine contributed to plaintiff’s injuries in any way and that he was rather in his report merely making recommendations to improve the working conditions of plaintiff and others. Bukowski further asserts that at no time has he agreed to testify as an expert witness in this case on behalf of the plaintiff and that he does not hold himself out as an expert on the design and manufacture of cryostat machines like the Frigocut 2800. In his affidavit also dated June 21, 2002, Bernacki states that he reviewed and approved the report submitted by Bukowski, but that he did not participate in the ergonomic study. According to Bernacki, he has never conducted an ergonomic study of the Frigocut 2800. He further states that he has never made a determination or assessment that the machine at issue was defectively or negligently designed or manufactured in any way, nor did he determine that the machine caused plaintiff’s injuries. Bernacki also asserts that he has not agreed to be an expert witness in this case on behalf of plaintiff. II 6 Defendant’s Motion Defendant Jung has first moved to preclude plaintiff’s experts. It is argued that plaintiff has failed to comply with Scheduling Orders of this Court and with Rule 26(a)(2)(B), F.R.Civ.P., in designating and identifying her liability experts and in providing necessary written reports. It is next argued by defendant that the experts now named by plaintiff are not qualified to render opinions that the machine at issue was defectively designed or manufactured, and that their opinions do not properly establish a causal link between plaintiff’s use of the Frigocut 2800 and her injuries. Defendant contends that, in the absence of relevant expert testimony both as to defect and causation, this Court should grant its motion for summary judgment. In opposing defendant’s pending motion, plaintiff asserts that she should not be barred from the use of her experts on the basis of the timeliness and the form of her disclosures of their identities and the reports provided. According to plaintiff, there are on the record here disputes of material fact as to whether the machine at issue was defectively designed or defectively manufactured and defendant maintains that such disputes should be resolved by the jury. III Summary Judgment Principles It is well established that a defendant moving for summary judgment bears the burden of showing the absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th 7 Cir. 1984). Where, as here, the nonmoving party will bear the ultimate burden of persuasion at trial, "the burden on the moving party [at the summary judgment stage] may be discharged by 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). One of the purposes of Rule 56 of the Federal Rules of Civil Procedure is to require a plaintiff, in advance of trial and after a motion for summary judgment has been filed and properly supported, to come forward with some minimal facts to show that the defendant may be liable under the claims alleged. See F.R.Civ.P. 56(e). If the nonmoving party "fail[s] to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof," then "the plain language of Rule 56(c) mandates the entry of summary judgment." Catrett, 477 U.S. at 323. While the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the party opposing the motion, Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), "when the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "'A mere scintilla of evidence is not enough to create a fact issue; there must be evidence on which a jury might rely.'" Barwick, 736 F.2d at 958-59 (quoting Seago v. North Carolina Theaters, Inc., 42 F.R.D. 627, 640 (E.D.N.C. 1966), aff'd, 388 F.2d 987 (4th Cir. 1967), cert. denied, 390 U.S. 959 (1968)). Moreover, 8 only disputed issues of material fact, determined by reference to the applicable substantive law, will preclude the entry of summary judgment. "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In the absence of the necessary minimal showing by the plaintiff that the defendant may be liable under the claims alleged, the defendant should not be required to undergo the considerable expense of preparing for and participating in a trial. See Catrett, 477 U.S. at 323-24; Anderson, 477 U.S. at 256-57. Indeed, the Fourth Circuit has stated that, with regard to motions for summary judgment, the district courts have "an affirmative obligation . . . to prevent 'factually unsupported claims and defenses' from proceeding to trial." Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (quoting Catrett, 477 U.S. at 323-24). Applying these principles to the facts of record here, this Court has concluded that defendant’s motion for summary judgment must be granted. IV Applicable Law In products liability litigation like this case, the plaintiff 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. Jensen v. American Motors Corp., Inc., 50 Md. App. 226, 234 (1981). To recover on an implied warranty or negligence claim, 9 a plaintiff must prove the existence of a defect at the time that the product leaves the manufacturer. Ford Motor Co. v. General Accident Ins. Co., 365 Md. 321, 334 (2001). To allow a jury to decide whether there was a breach of warranty, there must be some evidence beyond mere speculation which would enable the jury to rationally decide that it is more probable than not that the defect existed at the time of the sale. Id. Maryland courts have adopted the general rule that expert testimony is required when the subject of the inference that a product is defective is particularly related to some science or profession that it is beyond the ken of the average layman. Wood v. Toyota Motor Corp., 134 Md. App. 512, 516-17 (2000). In Wood, the issue was whether the plaintiff had been injured due to the defective design of an air bag. The Court there held that the correct resolution of that issue required the application of science, mechanics and engineering rather than the application of matters which jurors would be aware of by virtue of common knowledge. Id. at 518. The holding of the Court in Wood was that a products liability plaintiff claiming to have been injured due to the defective design of an air bag must present expert testimony to generate a jury issue on whether the air bag was defective. Id. at 518. The Court of Special Appeals affirmed the trial court’s decision to exclude plaintiff’s expert witness and to grant summary judgment in favor of the defendant because expert testimony was required. Id. at 514. In Moser v. Agway Petroleum Corp., 866 F.Supp. 262, 264 (D. Md. 1994), Judge Smalkin of this Court held that a heater involving mechanical parts and electrical circuits is 10 not so simple a device that the average layperson’s understanding and knowledge permit proceeding without expert testimony. V Discussion (a) Preclusion of Experts Defendant first contends that plaintiff failed to timely designate her liability experts as required by the Court’s Scheduling Order of October 17, 2001 and that she insufficiently identified her liability experts as required by Rule 26(a)(2). The Court’s Scheduling Order required plaintiff to provide Rule 26(a)(2) disclosures on or before December 17, 2001. It was not until January 22, 2002 that plaintiff named Bukowski and Bernacki as her experts. Later, plaintiff provided defendant with a copy of Bukowski’s ergonomic survey dated July 19, 2000. It was that survey which made certain recommendations concerning the use of the Frigocut 2800 at the Hospital. Defendant maintains that neither Bukowski nor Bernacki should be permitted to testify at the trial because of plaintiff’s failure to comply with the Court’s Scheduling Order and with Rule 26(a)(2). On the record here, the Court will not exclude these two proposed expert witnesses of plaintiff because of procedural defaults. The participation of Bukowski and Bernacki as proposed experts in this case is indeed somewhat unusual. Neither one of them has been retained by plaintiff as an expert, and neither one has agreed to testify as an expert witness on behalf of plaintiff 11 Jones. Although counsel for plaintiff corresponded with both Bukowski and Bernacki, they were not personally interviewed, and their depositions have not been taken. It was not until counsel for defendant obtained affidavits from these two witnesses that the nature of their proposed testimony was revealed. Although for the reasons stated hereinafter, Bukowski and Bernacki will not be permitted to testify in this case as liability experts, their testimony will not be precluded because of plaintiff’s procedural defaults. Defendant has not been prejudiced by plaintiff’s failure to strictly comply with the Court’s Scheduling Order or with Rule 26(a)(2). Indeed, once counsel for defendant learned the identity of these two witnesses, arrangements were made for the signing by them of affidavits which, as explained hereinafter, have a conclusive effect on the outcome of this litigation. Defendant next argues that the two individuals whom plaintiff intends to call as liability experts are not qualified to render expert opinions in this case and that they should therefore be precluded from testifying. On the record here, this Court would agree. The Frigocut 2800 is a cryostat frozen tissue slicer. Since its components include rotating blades and a cryostat chamber, it is clearly a complex piece of machinery. Expert testimony is required in this case because the liability issues require the application of science, mechanics and engineering rather than ordinary matters which jurors would be aware of by virtue of common knowledge. Wood, 134 Md. App. at 518. To prevail, plaintiff must 3In Count III of the complaint, plaintiff has alleged that defendant having knowledge of the negligent design and/or manufacture of the machine failed to warn plaintiff of the dangers of injury from the use of the machine. Since neither Bukowski nor Bernacki is qualified to present evidence that the Firgocut 2800 was in any way defective, they would not be entitled to testify in support of the claim of failure to warn asserted by plaintiff in Count III of the complaint. See Higgins v. Diversey Corp., 998 F.Supp. 598, 605 (D. Md. 1997), aff’d., 135 F.3d 769 (4th Cir. 1998). 12 prove that a design or manufacturing defect existed in the machine at the time of its sale. Ford Motor Co., 365 Md. at 334. The resolution of the liability issues in this case requires consideration of complex machinery and knowledge of complicated matters such as mechanics, electricity, engineering and metallurgy. See Holzhauer v. Saks & Co., 346 Md. 328, 341 (1997). The affidavit of Bukowski establishes that he does not hold himself out as an expert on the design and manufacture of cryostat machines like the Frigocut 2800. In the course of his ergonomic study, he did not conclude that the machine at issue was defectively or negligently designed or manufactured in any way. In his affidavit, Bernacki similarly stated that he had at no time ever made any determination or assessment that the Frigocut 2800 machine was defectively or negligently designed or manufactured. Bernacki never inspected the Frigocut 2800 machine or participated in any other way in the ergonomic study made by Bukowski. He merely reviewed and approved Bukowski’s report. These two affidavits conclusively establish that neither Bukowski nor Bernacki is qualified to give expert testimony in this case.3 In arguing that both Bukowski and Bernacki should be permitted 13 to testify as experts in this case, plaintiff places heavy reliance on the written report dated July 19, 2000, which was prepared by Bukowski and approved by Bernacki. But this report merely makes recommendations for improvements of the working conditions of hospital employees using the Frigocut 2800. Although the report contained the suggestion that the Hospital contact the manufacturer of the machine to see if certain changes could be made in order to simplify its operation, the report did not conclude that the Frigocut 2800 had been defectively designed or manufactured. At the hearing on defendant’s motion, the Court expressed some concern that the two affidavits in question had been obtained after the close of discovery. The Court offered counsel for the plaintiff the opportunity to depose these two individuals and present evidence to the Court which might counter statements in their affidavits. However, Mr. Powell declined the Court’s offer and stated that he was satisfied that Bukowski’s report and other evidence here constituted sufficient proof to raise an issue of material fact as to liability and defeat defendant’s motion for summary judgment. The Court is satisfied, however, that the report in question, when considered together with the affidavits of Bukowski and Bernacki, is not sufficient to permit these two individuals to testify as expert witnesses in this case. Proof of a defect must arise above surmise, conjecture or speculation, and a plaintiff’s right to a recovery may not rest on any presumption resulting from the happening of an injury. Jensen, 50 Md. App. at 232. In her opposition to defendant’s pending motion, counsel for 4Inasmuch as the two individuals named by plaintiff as liability experts will be precluded from testifying as to liability, there is no need for the Court to consider defendant’s further argument that Dr. Robert Lavin, plaintiff’s treating physician, should not be permitted to testify that there was a causal link between the alleged defect and plaintiff’s injuries. 14 plaintiff complained that the ex parte contact of defendant’s attorneys with Bukowski and Bernacki was improper. However, no party to litigation has anything resembling a proprietary right to a particular witness’s evidence. Doe v. Eli Lilly & Co., Inc., 99 F.R.D. 126, 128 (D.D.C. 1983). Absent a privilege, no party is entitled to restrict an opponent’s access to a witness by insisting upon some notion of allegiance. Id.; Felder v. Wyman, 139 F.R.D. 85, 88 (D. S.C. 1991). Application of this principle is particularly pertinent in this case, since neither Bukowski nor Bernacki was ever retained by plaintiff to testify as experts at the trial of this case. It was therefore not improper for counsel for defendant to contact them and obtain affidavits from them. Since both Bukowski and Bernacki are not qualified to testify as experts in this case, defendant’s motion to preclude will be granted.4 (b) Summary Judgment In the absence of competent expert testimony establishing that the Frigocut 2800 was in any way defective at the time of sale, plaintiff may not proceed to trial on any of the claims asserted in her complaint. Indeed, at the hearing, counsel for plaintiff conceded that in the absence of the testimony of Bukowski and 5A similar concession was made by plaintiff in the memorandum filed by her in opposition to defendant’s pending motion. It was there conceded that if defendant by virtue of its motion “is able to eliminate Plaintiff’s experts, then, clearly, no issue of fact can be raised.” (Memorandum in Opposition at p. 5). 6Defendant has also argued that it is entitled to summary judgment on Counts I and II because these claims of plaintiff are barred by limitations. Since the Court has concluded that defendant’s motion for summary judgment must be granted in its entirety for other reasons, it is not necessary to consider defendant’s other arguments. 15 Bernacki there would not be sufficient evidence in the record to create a genuine issue of material fact as to liability.5 This Court concludes on the record here that plaintiff has not produced competent evidence of the existence of a defect in the Frigocut 2800 machine at the time of its sale. The warranty claims asserted by plaintiff in Count I and Count II must therefore fail. Moreover, there is no evidence in this record indicating that defendant Jung was negligent in the design and/or manufacture of the machine. Since defendant therefore had no duty to warn plaintiff that one using the machine would be exposed to the danger of injury, plaintiff is also not entitled to proceed to trial on Count III of the complaint. Summary judgment in favor of defendant Jung will therefore be entered.6 VI Conclusion For all the reasons stated, this Court concludes that plaintiff is not entitled to rely in this case on the proposed liability experts named by her. Since these individuals may not testify at the trial, defendant’s motion to preclude will be 16 granted. In the absence of expert testimony presenting proof of defendant’s liability, defendant’s motion for summary judgment will also be granted. An appropriate Order will be entered by the Court. Senior United States District Judge DATED: July , 2002

State Pension Benefits May be the only Remedy for on-the-line of Duty Death

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND VIRGINIA DEAN SLAUGHTER, et al. : Plaintiffs : v Civil Case No. L-10-1157 : MAYOR AND CITY COUNCIL OF BALTIMORE, et al. : Defendants : o0o MEMORANDUM This case arises out of the tragic death of Racheal Wilson, a Baltimore City firefighter recruit in training, during a “live burn” training exercise. Ms. Wilson’s family and personal representative (“Wilson’s Estate”) brought suit against the Mayor and City Council of the City of Baltimore, as well as three individual members of the Baltimore City Fire Department. Now before the Court is the Defendants’ Motion to Dismiss the Amended Complaint. Docket No. 25. The issues have been fully briefed, and on November 8, 2010 the Court held a hearing. For the reasons stated herein, the Court will, by separate Order, GRANT the Motion to Dismiss with respect to Plaintiffs’ § 1983 claim and DISMISS the remaining counts for lack of jurisdiction. I. FACTUAL BACKGROUND The following facts are alleged in Plaintiffs’ Amended Complaint. On February 9, 2007, Racheal Wilson participated in a “live burn” training exercise, wherein recruits battle a live blaze purposely set by Fire Department instructors. Wilson was a member of the first team to enter 145 South Calverton, a three-story rowhouse. Her assignment was to carry the hose nozzle for her 2 team, though her hose was not “charged” with water pressure. Despite the presence of fires on the first and second floors, Wilson’s team was instructed to bypass them and proceed directly to the third floor. On their way upstairs, the team encountered severe conditions that required them to stop and confine another fire before proceeding. Upon arriving on the third floor, the team was confronted with a conflagration so powerful that evacuation became the only option. The recruits began to escape through a small window in the back of the third floor that opened onto a section of the second-story roof. Though Wilson’s teammates were able to make it out onto the roof, Wilson had trouble getting through the window. Three times a fellow recruit tried to pull her through, only to have her slip back into the house. Finally, a crew member still inside managed to lift Wilson by the legs and others pulled her, unconscious and unresponsive, onto the roof outside. Teammates administered CPR, but to no avail. The Amended Complaint alleges that conditions inside 145 South Calverton were wholly inappropriate for the exercise conducted there, and that the planning and execution of the exercise failed to conform to requirements promulgated by both the National Fire Prevention Association and the Baltimore City Fire Department. Defendants, the Complaint charges, recklessly created an inferno that quickly burned out of control. Among other conditions, the Plaintiffs cite that some walls and ceilings were torn down to expose the framing and allow the fire to spread more quickly, an accelerant (excelsior) was stuffed behind other walls, the building was not cleared of inflammable debris, and at least seven separate fires were set. Wilson’s Estate similarly takes issue with the recruits’ gear and training, claiming that many participants were not given a proper breathing apparatus or protective clothing, that the water pressure was inadequate to address the number and strength of the fires, that there was no evacuation plan, and 3 that the recruits were never given a pre-burn walkthrough or even instructed as to the basic construction of the building. Finally, the Complaint alleges that the instructors in charge of the exercise were similarly unprepared: they were not equipped with radios to report developing problems, several had never been trained in live fire training exercises, they were unfamiliar with the recruits, they set the fires before confirming that the recruits were ready to begin, three instructors left their crews, and those with the authority to terminate the exercise failed to do so when it became clear that lives were in danger.1 Wilson’s Estate sues under 42 U.S.C. § 1983, claiming that the Defendants’ conduct violated Wilson’s Fourteenth Amendment right to life. Analogous State Constitutional claims are advanced under Article 24 of the Maryland Declaration of Rights. Finally, Wilson’s Estate brings wrongful death and survival actions under Maryland tort law. The Defendants have moved to dismiss all counts for failure to state a claim. II. STANDARD OF REVIEW To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead plausible, not merely conceivable, facts in support of his claim. See Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). The complaint must state “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 1965. The court must, however, “assume the veracity [of well-pleaded factual allegations] and then determine whether they plausibly give rise to an entitlement of relief.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). 1 Defendants deny that the training exercise was poorly planned. Because of the procedural posture of the case, a motion to dismiss, the Court must accept as true the allegations in the complaint. This means crediting the allegation that the exercise was recklessly conceived and carried out. 4 III. DISCUSSION Wilson’s Estate has brought a § 1983 action to which it appends a number of state claims. The viability of this action in federal court hinges on the viability of the § 1983 count. If the federal count falls short, the Court will dismiss the entire case due to the lack of a federal connection.2 The Court notes initially that Wilson’s Estate applied for and received pension benefits from the Fire and Police Employees’ Retirement System as a result of her line-of-duty death. Where a state provides for such compensation, it will normally be the exclusive remedy for injury or death occurring on the job. Section 1983 was never intended as a federal means of redress for those injured by the negligence of so-called “state actors.” Rather, it creates a federal cause of action in favor of individuals whose constitutional rights have been abridged by those acting under color of state law. Consequently, in order to prevail, Wilson’s Estate must demonstrate that the Defendants’ conduct rose to the level of a constitutional violation. The Due Process Clause of the Fourteenth Amendment is violated by executive action only when it “can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128 (1992). Section 1983, therefore, does not create a cause of action for negligent conduct. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Either an intent to harm or deliberate indifference is required. See Waybright v. Frederick Cnty., MD Dep’t of Fire and Rescue Servs., 528 F.3d 199, 206 (4th Cir. 2008). Wilson’s Estate does not allege that the City intended to harm Ms. Wilson.3 It does, however, contend that the fire exercise was shockingly ill-conceived 2 Because this case is at such an early stage, with no discovery having been conducted, the Court would decline to exercise supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c)(3). 3 While the Plaintiffs’ Amended Complaint and Opposition to the Motion to Dismiss both make reference to “intentional acts” and an intent to subject Wilson to extreme and hazardous conditions, Plaintiffs admit “that the 5 and ill-executed. Plaintiffs maintain that the Defendants' deliberate indifference to the dangers posed to the recruits is actionable under § 1983 because it "shocks the conscience." The case law uniformly holds that mere negligence is insufficient to state a cause of action under § 1983. The case law diverges, however, concerning when a Defendant's deliberate indifference can suffice. One line of cases holds that deliberate indifference is actionable if the governmental actors had an opportunity to deliberate before acting and their conduct is severe enough to shock the conscience. See, e.g., Estate of Owensby v. City of Cincinnati, 414 F.3d 596, 602 (6th Cir. 2005); Wilson v. Lawrence Cnty., 260 F.3d 946, 956–57 (8th Cir. 2001). A second line of cases finds that deliberately indifferent conduct may rise to the level of a constitutional violation when the state itself creates the danger that causes injury. See, e.g., DeShaney v. Winnebago Cnty. Dept. of Social Services, 489 U.S. 189 (1989); Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995). A third line of cases requires a "special relationship" between the plaintiff and the defendant in order to trigger deliberate indifference liability. See, e.g., Waybright, 528 F.3d 199 at 207; Rivera v. Rhode Island, 402 F.3d 27, 34 (1st Cir. 2005). This special relationship is all but synonymous with a custodial relationship, and exists when “[s]ome sort of confinement” is present, such as occurs when the plaintiff is incarcerated, institutionalized, or the like. Pinder, 54 F.3d at 1175. The Fourth Circuit Court of Appeals has rejected the "opportunity to deliberate" line of cases, holding that “the case law as a whole is against a general rule that time to deliberate transforms negligent error into constitutionally shocking conduct.” Waybright, 528 F.3d 199 at 206. In this Circuit, therefore, the opportunity to deliberate, standing alone, is insufficient to create liability under the deliberate indifference test. Amended Complaint does not allege a specific intent to harm . . . .” Pls.’ Resp. 12. Plaintiffs’ counsel also conceded at oral argument that, while the Defendants deliberately created the conditions that caused Ms. Wilson’s death, they did not intend for her to be injured or killed. 6 This Circuit does approve of the "special relationship" exception, which has its origins in DeShaney. In that case, the Supreme Court found that an affirmative duty to protect an individual from harm inflicted by third parties may arise “when the state by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself . . . .” 489 U.S. at 200. The appeals court has applied the exception narrowly. It applies only when there is “some sort of confinement of the injured party—incarceration, institutionalization, or the like . . . .” Pinder, 54 F.3d at 1175. The theory behind the exception is that the state, by confining the injured person, has deprived him of the opportunity to protect himself. The Fourth Circuit comprehensively discusses this exception in Pinder. In that case, a police officer arrived at the home of Carol Pinder to find Pinder’s abusive, violent ex-boyfriend subdued by a neighbor after physically abusing Pinder and threatening her life and the lives of her children. The officer arrested the ex-boyfriend, and assured Pinder that he would be detained overnight, meaning that it would be safe for Pinder to return to work that evening. Despite this assurance, the officer charged the ex-boyfriend only with two apparently non-incarcerable misdemeanors, and as a result he was released on his own recognizance. Once free, the exboyfriend returned to Pinder’s house and set fire to it, killing the three children who were asleep inside. Id. at 1172. Pinder brought a § 1983 action charging, inter alia, that the officer and the city had violated their affirmative duty to protect her and her children and so had deprived them of their Due Process rights. The Fourth Circuit, relying heavily on DeShaney, held that the lack of a custodial relationship between Pinder and the state was the deciding factor, and that without such a limitation on her liberty Pinder “was due no affirmative constitutional duty of protection from 7 the state . . . .” Id. at 1174–75. The court reached this conclusion even though Pinder would have remained home that night to protect her children but for the officer's assurance that the exboyfriend would be detained. In the instant case, Wilson’s Estate relies on the authority that the Defendants had over Wilson, but it does not argue that Ms. Wilson and the City had a qualifying special relationship. Moreover, the D.C. Circuit in a similar case persuasively rejected the idea that the state has a heightened obligation towards firefighters, even when local law restricted their ability to terminate their employment or to leave the District of Columbia. See Phillips v. D.C., 455 F.3d 397, 405 (D.C. Cir. 2006). In that case, two firefighters died while battling a multi-alarm blaze, allegedly due to the fire chief’s deliberate indifference to his duty to see that the department complied with its own standard operating procedures. The Phillips court ruled that the restrictions placed on firefighters, which distinguish them from at-will employees “are not imposed; rather, a firefighter agrees to them as conditions of employment.” Id. at 405 n. 10. The Plaintiffs cannot, therefore, avail themselves of the “special relationship” line of cases. The Fourth Circuit Court of Appeals has also approved the "state created danger" exception, which can operate outside of the traditional custodial context. For example, in Pullium v. Ceresini, 221 F. Supp. 2d 600 (D. Md. 2002), a county police officer brought the plaintiff’s estranged and visibly intoxicated husband to her home and, against her protests that she feared for her safety, forced her to let the husband enter. As soon as the officer departed, the husband assaulted Mrs. Pullium. The Court denied the defendants’ motion to dismiss, finding that “[w]hile the Fourth Circuit may be reluctant to impose liability on police officers whose omissions create increased dangers from third parties, there is no indication that the court would 8 have the same reluctance where it is an officer's affirmative conduct that creates the danger.” Id. at 605. The Fourth Circuit has been careful, however, to limit the state-created danger exception to cases in which the state has compelled the injured person to encounter the danger. See Waybright v. Frederick Cnty., MD Dep’t of Fire and Rescue Servs., 475 F. Supp. 2d 542, 553 (D. Md. 2007). This limiting principle operates in workplace safety cases. Section 1983 does not require the state to provide a workplace that is free from unreasonable risks of harm. Collins, 503 U.S. at 128 (“We . . . are not persuaded that the city’s alleged failure to train its employees, or to warn them about known risks of harm, was an omission that can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.”). If the employee voluntarily encounters the risk, the exception does not apply. The D.C. Circuit also addressed the state-created danger exception in Phillips. Confronted with the plaintiffs’ argument that the D.C. fire department’s failure to follow standard procedure constituted “avoidable state-created additional risk,” the court held that while the fire chief’s deliberate indifference may have increased the firefighters’ exposure to risk, “the risk itself—injury or death suffered in a fire—is inherent in their profession. . . . [T]he District is not constitutionally obligated by the Due Process Clause to protect public employees from inherent job-related risks.” 455 F.3d at 407. Whatever the theory of recovery, the principles of federalism counsel that federal courts tread lightly when the plaintiff’s claims arise in areas traditionally regulated by the states. The Fourth Circuit admonishes that “where a claim sounds both in state tort law and substantive due process, state tort law is the rule and due process the distinct exception.” Waybright, 528 F.3d 9 199 at 205. Because of this principle, a strong presumption exists against recognizing § 1983 claims that overlap state tort law claims. Id. With this background in mind, the Court turns to the Plaintiffs’ case. This case presents factors of the type that have, on occasion, prompted other courts to recognize a § 1983 cause of action. Plaintiffs allege that the City created a shockingly dangerous condition to which Wilson was subjected. As an inexperienced trainee, she was not in a position to evaluate the risk. Because the exercise was designed to present unexpected situations, perils were deliberately hidden from Wilson and her fellow trainees. Unlike Pinder, this is not a case in which the state failed to protect an individual from harm caused by a third person. The state itself created the exercise and lit the fires. Based on these allegations, the Plaintiffs urge the Court to deny the Motion to Dismiss and permit the case to proceed to discovery. While the Court is cognizant of these factors, they do not combine to create a § 1983 claim as recognized in this Circuit. Because Ms. Wilson voluntarily participated in the exercise, the Plaintiffs cannot satisfy the "state-created danger" test even if the City acted with deliberate indifference. The theory behind the state-created danger exception is that a state actor should be liable when that actor affirmatively puts a victim in harm’s way without giving the victim a choice about whether to face the peril or not. The Court recognizes that the training exercise was not optional. Had Wilson refused to participate, she would not have graduated. Nevertheless, in a § 1983 case Wilson’s option of declining to participate is sufficient to defeat the claim. In such a situation, the Court cannot say that the actions of the Fire Department, however reckless they may have been, rise to the level of a constitutional violation. In reaching this conclusion, one Fourth Circuit case is particularly instructive. In Waybright v. Frederick County, MD Department of Fire and Rescue Services, 528 F.3d 199 (4th 10 Cir. 2008), Andrew Waybright, a Frederick County firefighter recruit, died of heat stroke during a training session conducted in 84-degree weather without water. Waybright’s parents filed a § 1983 claim against the county, the fire department, the supervising firefighter, and others. After rejecting the opportunity-to-deliberate line of cases and finding that Waybright’s status as a firefighter trainee was insufficient to invoke the “special relationship” exception, the Fourth Circuit considered whether the state-created danger theory might provide a path to recovery. Waybright’s parents argued that “the training session should qualify as a state-created danger because [the supervising firefighter] had used his authority to create an opportunity for danger that otherwise would not have existed and thereby knowingly put Waybright in harm’s way.” Id. at 207 (internal quotations omitted). In denying the claim, Judge Wilkinson, writing for a unanimous panel, invoked the Supreme Court’s holding in Collins v. Harker Heights that due process does not impose a duty on municipalities to provide their employees with a safe workplace or warn them against risks of harm. Id. Rachael Wilson’s case differs from Andrew Waybright’s in several respects. The dangers of hyperthermia are well known, but the full dangers awaiting Wilson were hidden from her. Waybright could have stopped exercising when he began to feel dizzy, but manfully insisted on finishing with his class. Once inside the building, Wilson could not have extricated herself from the live burn exercise, and certainly not without leaving her teammates in greater danger, battling the blaze without her. Despite these differences, however, Judge Wilkinson’s reasoning is equally applicable to this case. Both Waybright and Wilson, in essence, claim “an unsafe workplace that caused a prospective employee harm.” Id. The Fourth Circuit has deliberately narrowed the circumstances under which such non-intentional injury is actionable. The Waybright court was 11 justifiably worried that a broader exception would result in “federal displacement of state authority over state activities, for it would potentially set up a federal question whenever an accident happens during activities sponsored by the state.” Id. at 208. This ruling, it should be noted, does not leave the Plaintiffs without a remedy. As mentioned, they retain all rights afforded under the Workers’ Compensation system, the Fire and Police Employees’ Retirement System, state tort law, and Article 24 of the Maryland Declaration of Rights. The Court's ruling today concerns only whether Plaintiffs are entitled to take advantage of § 1983, which applies primarily to cases in which the harm was intended and only tangentially to cases in which the defendant acted recklessly but without the intent to injure. IV. CONCLUSION For the foregoing reasons, the Court will, by separate Order of even date, GRANT Defendants’ Motion to Dismiss (Docket No. 25) with respect to Plaintiffs’ § 1983 claim and DISMISS the remaining counts for lack of jurisdiction. Dated this 3rd day of December, 2010. /s/ _______________________________ Benson Everett Legg United States District Judge 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND VIRGINIA DEAN SLAUGHTER, et al. : Plaintiffs : v Civil Case No. L-10-1157 : MAYOR AND CITY COUNCIL OF BALTIMORE, et al. : Defendants : o0o ORDER Now before the Court is Defendants’ Motion to Dismiss the Amended Complaint. Docket No. 25. The issues have been fully briefed, and on November 8, 2010 the Court held a hearing. For the reasons stated in the Memorandum Opinion of even date, the Court hereby GRANTS the Motion with respect to Plaintiffs’ § 1983 claim and DISMISS the remaining counts for lack of jurisdiction. The Clerk is directed to CLOSE the case. SO ORDERED this 3rd day of December, 2010. /s/ _______________________________ Benson Everett Legg United States District Judge

Destructive Testing in Products Liability Cases

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND * NARESH MIRCHANDANI, et al., Plaintiffs, * v. * Civil Action No. BPG-04-1099 * HOME DEPOT, U.S.A., Inc., et al., * Defendants. * * * * * * * * * * * * * * MEMORANDUM AND ORDER The above-referenced products liability case has been referred to me for all proceedings with the consent of the parties pursuant to 28 U.S.C. § 636(c). Plaintiffs, Naresh and Cheryelona Mirchandani, seek damages arising from plaintiff Naresh Mirchandani’s fall from an allegedly defective ladder that was manufactured by defendant Krause Inc. (Krause) and sold to plaintiffs by defendant Home Depot, U.S.A., Inc. (Home Depot). Plaintiffs allege that the ladder, a 16-foot “Multi-matic” articulated ladder, collapsed as plaintiff Naresh Mirchandani was climbing it due to a failure in one or both of the hinges between the first and second sections of the four-sectioned ladder. Plaintiffs’ theory attributes the failure of the hinges to a defectively designed or manufactured locking bolt. Specifically, plaintiffs allege that one or more of the ladder’s locking bolts were composed of a zinc alloy that allowed the bolt to become 2 scarred and eventually to migrate from the “locked” to the “unlocked” position, because it was too soft and porous to withstand compressive forces exerted upon it when the ladder was put to normal use. Plaintiffs have requested the opportunity to substantiate their theory by conducting metallurgical and hardness tests on one of the two bolts in the relevant hinges. Because such testing would irreversibly alter the bolt subjected to testing, and consequently, the composition of the ladder at issue in this case, plaintiffs’ motion may be characterized as a motion for “destructive testing.” For reasons stated on the record during a hearing on this issue held on April 26, 2006, plaintiffs’ motion was granted. The purpose of this Memorandum and Order is to detail the basis of the undersigned’s previous oral ruling. I. The Discovery Rules Applicable to Plaintiffs’ Motion The primary dispute presented by plaintiffs’ motion is whether plaintiffs may permanently alter a component of the product alleged to be defective in this lawsuit, through testing that they submit will allow them to prove their case against defendants. Federal Rule of Civil Procedure 34(a)(1) provides that a party may make a request for production to “inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b).” In turn, Federal Rule of Civil Procedure 26(b) provides that “[p]arties may obtain discovery regarding any 3 matter, not privileged, that is relevant to the claim or defense of any party.” Several courts have recognized that production of “tangible things” for purposes of destructive testing falls under the scope of Rule 34. Spell v. Kendall-Futuro Co., 155 F.R.D. 587, 587 (E.D. Tex. 1994); Dabney v. Montgomery Ward & Co., Inc., 761 F.2d 494, 498 (8th Cir. 1985); Ostrander v. Cone Mills, Inc., 119 F.R.D. 417, 419 (D. Minn. 1988); see also 7 James Wm. Moore et al., MOORE’S FEDERAL PRACTICE ¶ 34.14[6], pp. 81-82 (3d ed. 2005) (collecting cases). In this case, however, plaintiffs do not require production of the ladder for testing as they are already in possession of it. Accordingly, as a purely technical matter, plaintiffs’ motion is more properly viewed as a motion for protective order under Federal Rule of Civil Procedure 26(c). Had plaintiffs proceeded to destructively test components of the ladder without first seeking guidance from the court, they would have risked the consequences that may befall a litigant deemed to have engaged in spoliation of evidence, such as an adverse inference instruction to the jury, Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155-57 (4th Cir. 1995), or even outright dismissal of their case, Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001). Whether the motion is made under Rule 34 or Rule 26, however, the applicable standard for considering their proposed testing remains the same. 4 II. The Standard for Allowance of Destructive Testing The standard for evaluating requests to perform destructive testing appears to have initially been developed in Petruk v. South Ferry Realty Co., 157 N.Y.S.2d 249 (N.Y. App. Div. 1956). In Petruk, a window washer was injured when the bolt on a safety anchor that protruded from the building he had been working on broke. Id. at 251. The window washer sued the owner of the building, alleging that the bolt did not meet regulatory standards. Id. The owner, who brought the installer of the bolt into the case as a third-party defendant, sought to destructively test the bolt by cutting out a section of the bolt, and subjecting the excised section to a strength test, chemical analysis, and microscopic examination. Id. at 251-52. The installer of the bolt challenged the proposed testing, arguing (without elaboration) that it would be prejudiced if it could not show the bolt to the jury in its unaltered state. Id. at 253. The court allowed for the destructive testing after zeroing in on the fact that the installer could not demonstrate how it would be prejudiced if the destructive testing were to take place prior to the bolt being shown to the jury. Id. The court observed that the unaltered, pretesting state of the bolt could be preserved by photographing it and the fact that all parties were permitted to examine the bolt prior to the destructive testing. Id. With these safeguards in place, the balance was found to have tipped in favor 1 The reasoning of Petruk was squarely reaffirmed in Foster- Lipkins Corp. v. Suburban Propane Gas Corp., 339 N.Y.S.2d 581 (N.Y. App. Div. 1973) (permitting destructive testing of several components of a propane gas cylinder); see also Edwardes v. Southampton Hospital Ass’n, 278 N.Y.S.2d 283 (Sup. Ct. 1967) (allowing destructive testing of an intramedullary pin); and 1 Weinstein, Korn & Miller, et al., NEW YORK CIVIL PRACTICE ¶ 3120.25 (2d ed. 2004)(collecting cases). For a collection of cases from all jurisdictions, see Annotation, Propriety of Discovery Order Permitting “Destructive Testing” of Chattel in Civil Case, 11 A.L.R.4th 1245 (2004). 5 of allowing the defendant-owner to obtain the scientific evidence that the court characterized as crucial to the third-party case (and indeed the primary case).1 Id. Building on Petruk, the Supreme Court of Colorado elaborated on the issue of destructive testing in Cameron v. District Court, 565 P.2d 925 (Colo. 1977). Cameron involved an allegedly defective tire that injured the plaintiff while he was attempting to mount it himself at a service station. Id. at 927. As plaintiff was attempting to “seat the tire bead,” that is, fitting the tire bead – the ring of steel and rubber that allows the tire to grip the rim and the mounting wheel – the bead ruptured and the tire exploded, injuring the plaintiff. Id. To aid his suit against the retailer, the plaintiff proposed excising a portion of the tire, to metallurgically test the inner wire strands of the bead near the ruptured area. Id. at 927-28. After a thorough analysis of the issue, the court allowed for the destructive testing. Id. at 931. The court framed the issue as requiring a balancing between the costs of irreversibly altering the object and the benefits of 6 obtaining the evidence sought in the case. Id. at 929. The court observed that the costs of alteration can be lessened by providing for safeguards, such as by photographing the object in its original state. Id. The court also observed that alternative nondestructive means of obtaining the evidence should be considered. Id. The parties agreed that the proposed test was “reasonable and necessary to proof of [plaintiff’s] case.” Id. Accordingly, the court did not expound on the “reasonable and necessary” factor, but was careful to list it as an important inquiry. Id. After applying this balancing test, the Cameron court allowed for the destructive testing. Its ruling was primarily based on the fact that the condition of the tire could be captured photographically and that any evidentiary value that would be lost by virtue of the inability to present the tire to the jury in its unaltered state was insufficient to deny the development of plaintiff’s expert’s opinion. Based on the discussion in Cameron, the undersigned identifies four specific inquiries relevant to the balancing test. They are: 1) Whether the proposed testing is reasonable, necessary, and relevant to proving the movant’s case; 2) Whether the non-movant’s ability to present evidence at trial will be hindered, or whether the non-movant will be prejudiced in some other way; 3) Whether there are any less prejudicial alternative methods of obtaining the evidence sought; and 4) Whether there are adequate safeguards to 7 minimize prejudice to the non-movant, particularly the non-movant’s ability to present evidence at trial. III. Application of the Four Factors to Plaintiffs’ Proposals In this case, plaintiffs seek to determine the composition of one of the two locking bolts contained within the hinges between the first and second sections of the accident ladder. Plaintiffs theorize that, as the result of either a manufacturing or design defect, one or more of the locking bolts were too weak to withstand compressive forces exerted upon it as plaintiff Naresh Mirchandani climbed up the rungs of the ladder. As a result, the locking bolt was “squeezed” out of place, causing the ladder to collapse. The hardness and metallurgical tests proposed by plaintiffs involve removing the locking bolts from the hinges in which they are encased. The bolts would then be cleaned and polished for purposes of conducting the “hardness” test. To perform a metallographic examination of the selected bolt, a section of the bolt would be excised. The ladder would then be reconstructed using an exemplar bolt. A. Reasonable, Necessary, and Relevant The first inquiry under the four-pronged analysis is whether the proposed testing is reasonable, necessary, and relevant. Several decisions following Cameron have expanded upon this first prong. In Dabney v. Montgomery Ward & Co., Inc., 761 F.2d 494, 498-99 (8th Cir. 1985), the Eighth Circuit upheld the trial court’s 8 decision not to allow destructive testing of furnace louvers. In upholding the trial court’s decision, the appellate court noted that the trial court had permitted destructive testing of other portions of the furnace, and that the movant had not stated that testing the louvers would provide evidence necessary for its defense. Id. at 498. More importantly, the motion for destructive testing was made after the first trial of the action, for which the movant’s expert had been able to offer an opinion without the evidence requested. Id. at 499. Accordingly, the court held that the evidence was not necessary and affirmed the trial court’s order prohibiting the testing. See also Hawthorne v. Michelin Tire Corp., 1996 WL 640481 (9th Cir. 1996) (prohibiting destructive testing of a tire as unnecessary because plaintiffs’ expert had formed his opinion in the case almost two years before the destructive testing was requested); In re Newman, 782 F.2d 971, 974 (Fed. Cir. 1986) (prohibiting the Patent and Trademark Office from submitting a patent-applicant’s invention to destructive testing because such testing was not necessary to determine whether the invention worked, i.e., whether it was patentable). These cases demonstrate that a party may not use destructive testing merely to bolster an expert opinion or to gain other potentially intriguing, albeit irrelevant, information. The evidence sought must be integral to proving the movant’s case and do more than strengthen an already established claim or defense. 9 Here, defendants argue that plaintiffs’ proposed testing is not necessary, because their theory of liability is speculative and because their experts have already formed their opinions in this case. In the first instance, defendants’ arguments are at loggerheads with one another. It cannot be that the theory proposed by plaintiffs is too speculative and unsubstantiated as to not warrant discovery, and also be the case that plaintiffs’ experts have substantiated their theory to the point that their opinions have already been “formed” such that additional discovery would merely bolster their opinions. Accordingly, defendants have not shown that the proposed testing is unnecessary. Secondly, the argument that a party’s claim or defense is too weak to warrant discovery that has the potential (in this case a great potential) of substantiating its claim or defense, is misplaced here. While plaintiffs must show that the evidence sought through destructive testing is necessary to prove their case (a more stringent standard than that applied to more routine discovery requests), the burden is not so high as to require definitive proof that plaintiffs’ hypothesis will prove correct. In other words, plaintiffs need not prove their case for the opportunity to prove their case. The fact that defendants’ experts do not believe that the proposed destructive testing will enable plaintiffs to prove their case is irrelevant at this stage of the litigation. “When experts disagree on the relevancy of certain 10 evidence, it would be unjust to select the view of one of those experts with the result that another party’s discovery is thereby barred.” Ostrander v. Cone Mills Corp., 119 F.R.D. 417, 420 (D. Minn. 1988) (allowing destructive testing of fabric swatches of nightwear alleged to have failed federal flammability standards). Accordingly, plaintiffs have shown that their proposed testing is relevant, reasonable, and necessary. B. Prejudice to Defendants The second area of inquiry is the potential prejudice to defendants. The Cameron court recognized that the question whether to allow for destructive testing “becomes especially difficult where the object to be tested is unique and one side intends to use it in its ‘original’ state at trial.” Cameron, 565 P.2d at 929. This issue was squarely addressed in Sarver v. Barrett Ace Hardware, Inc., 349 N.E.2d 28 (Ill. 1976), a case decided the year before Cameron. Sarver involved a suit against the manufacturer and retailer of a hammer that was alleged to have injured the plaintiff’s eye after a piece of metal chipped off of the face of the hammer during use. Id. at 29. The defendants sought to perform a metallurgical analysis of the hammer that required that three quarter-inch holes be drilled into the side of the hammer and that a wedge-shaped section be excised from the face of the hammer. Id. In allowing for the testing, the court observed that the jury 11 would still be able to view the hammer and the “general condition” of its striking face. Id. at 30-31. In addition, the original condition of the striking face was to be preserved by macrophotographs that would also be available for presentation to the jury. Id. at 31. See also Ostrander, 119 F.R.D. at 419 (allowing for destructive testing of a portion of fabric, but carefully noting that the result may differ “[i]n instances where the entire piece of evidence will be consumed by testing”). These cases demonstrate that a material change in the appearance of the object, even when the non-movant plans to present the object at trial, is insufficient to categorically prohibit destructive testing. In this case, defendants argue that they will be prejudiced by the inability to conduct a live presentation in front of the jury involving the subject ladder. Specifically, plaintiffs propose to set the ladder up in the courtroom and demonstrate that a person may climb the ladder without it collapsing. While such a demonstration could certainly be relevant at trial, defendants have already conducted similar experiments in the laboratories of their expert witnesses. More importantly, each of these experiments has been videotaped. The question then, is whether the deprivation of the ability to make a live presentation to the jury – as opposed to showing the jury a videotaped presentation – is enough to outweigh the benefits of providing plaintiffs the ability to test the 2 It should be observed that defendants’ proposed demonstration, while relevant, would not provide definitive proof that plaintiffs’ theory of the case is incorrect. Plaintiffs do not contend that the ladder will collapse each and every time that an individual attempts to climb it. 12 hardness and composition of the locking bolts.2 Here, even after the destructive testing, defendants will still have the opportunity to present their defense to the jury by videotaped presentation and the testimony of their experts who have examined the ladder at length. Accordingly, the undersigned concludes that any prejudice to defendants caused by the destructive testing is minimal, particularly when compared with the benefits potentially derived from the discovery sought. Moreover, because the ladder will be reconstructed with all but one of its original parts, the jury will still be able to observe the ladder in its “general condition.” Sarver, 349 N.E.2d at 31. Therefore, consideration of the potential prejudice to defendants weighs in favor of allowing the testing proposed by plaintiffs. C. Non-destructive Alternative Methods The third area of inquiry is whether there are any nondestructive alternative methods of testing. Defendants propose two alternative methods that they contend will yield the same data as would plaintiffs’ proposed testing. There do not appear to be any cases that have turned on the validity of alternative nondestructive methods of obtaining the evidence sought. It is apparent, however, that this prong encourages the party opposing 13 destructive testing to suggest less destructive and less prejudicial counter-proposals, and appears to be limited only by the imagination of the non-movant. As alluded to in Ostrander, an order approving destructive testing should seek to preserve as much of the object as possible. A non-movant’s counter-proposals may aid in the effort to minimize the degree of destruction of evidence. In this case, defendants first suggest that, in lieu of dismantling the ladder and destructively testing one of the locking bolts, plaintiffs photograph the bolts inside the hinges by using a boroscope. No form of photography, however, regardless of its level of sophistication, can be used to determine the composition and hardness of the allegedly defective locking bolt. Accordingly, because the evidence sought by plaintiffs could not be obtained through photography, defendants’ photography proposal does not qualify as a reasonable alternative. Secondly, defendants suggest that only the end of one of the bolts be excised for testing, a method that would spare the need to disassemble the ladder. Plaintiffs respond that the end of the bolt is not necessarily representative of its main sections and would, therefore, provide an inadequate sample of the rest of the bolt. Because the condition and composition of the bolt’s main portions are at issue in this case, this proposed alternative will not yield the same data sought by plaintiffs and, therefore, is 14 rejected. In sum, defendants have not proposed viable alternatives to plaintiffs’ proposed destructive testing. D. Adequate Safeguards The final inquiry of the four-pronged test involves consideration of the safeguards that may be put in place to minimize the potential for prejudice to the non-movants. The court in Cameron provided an extensive list of possible safeguards. This list includes: (1) [A]dequate opportunities for the [non-movants] to photograph or otherwise record the character and condition of the [object to be tested] prior to the destructive testing, (2) notice to the [non-movants] of the time, place, and exact manner of the destructive testing, (3) reasonable opportunity for the [non-movants] and their experts to observe and record the procedures involved in the destructive testing, (4) the right of the [non-movants] to conduct or participate in similar tests with a portion of the sample to be tested, (5) provision for discovery of the results of the [movant's] tests, (6) allocation of costs as justice may require. Cameron, 565 P.2d at 931. Other courts have elaborated upon the above-noted safeguard regarding the ability to record the procedures involved in the destructive testing. In Ostrander, 119 F.R.D. at 421, the court’s order provided that the non-movants could videotape or photograph the destructive testing proceedings as they deemed appropriate, subject to a finding that such recording unfairly compromised the 15 testing. In addition, the court imposed an affirmative duty upon the movants to “fully videotape each test from its inception to its conclusion.” Id.; accord Spell v. Kendall-Futuro Co., 155 F.R.D. 587, 588 (E.D. Tex. 1994) (imposing the same duty). As an additional safeguard, the Ostrander and Spell courts also provided the non-movants leave to depose the movant’s experts about the testing procedures and the results of the tests. Ostrander, 119 F.R.D. at 421; Spell, 155 F.R.D. at 588. The orders also provided the non-movants with the opportunity to show cause why “any other persons substantially involved in the performance of the testing” should also be deposed. Ostrander, 119 F.R.D. at 421; Spell, 155 F.R.D. at 588. In this case, numerous safeguards are in place to minimize any potential prejudice to defendants resulting from the destructive testing. As noted, defendants have already been afforded the opportunity to fully inspect the ladder and to conduct experiments on it. The original state of the ladder has been preserved through videotape and photography. Defendants will be able to attend the testing and all of the testing procedures will be photographed. In addition, plaintiffs have produced a detailed protocol explaining all of the procedures involved with the testing they intend to perform and ensuring that any modifications to the evidence are to be kept to a minimum. In sum, adequate safeguards are in place to minimize the potential for prejudice to defendants. 16 IV. Conclusion Based upon the foregoing, the undersigned concludes that consideration of the relevant factors detailed above aptly demonstrates that the balance is tipped in favor of permitting the limited destructive testing proposed by plaintiffs, in accordance with the protocol and safeguards proposed by plaintiffs. For the foregoing reasons, as stated in the April 26, 2006 hearing, it is HEREBY ORDERED this 31st day of May, 2006, that Plaintiffs’ Motion to Conduct Inspection and Testing (Paper No. 127) is GRANTED. /s/ __________________ Beth P. Gesner United States Magistrate Judge

Spoliation of Evidence and Sanctions

1 Although Judge Quarles referred the two motions discussed in this Memorandum Opinion for a Report and Recommendation (“R&R”) (Paper No. 122), an R&R is not necessary as the manner in which the motions are resolved herein is not case dispositive. 2 In addition to the two motions discussed here, there is also pending plaintiff’s Motion in Limine to Exclude Evidence Regarding Plaintiff’s Unsatisfactory Job Performance (Paper No. 79), which will be addressed in a separate order. 3 Defendant filed a Motion for Leave to File a Surreply to plaintiff’s Second Motion for Sanctions, which is ripe for my consideration (Paper Nos. 123, 124, 125). In support of its Motion, defendant maintains that plaintiff’s Reply to the Second Motion for Sanctions “asserted new arguments” and “attached documents not previously discussed or relied upon.” (Paper No. 125 at 1.) The Court agrees and grants defendant’s Motion for Leave to File a Surreply (Paper No. 123). IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND INA SAMPSON, * Plaintiff, * v. * Case No.: WDQ-06-1819 CITY OF CAMBRIDGE, MARYLAND * Defendant. * * * * * * * * * * * * * * MEMORANDUM OPINION This case has been referred to me for the resolution of discovery disputes.1 28 U.S.C. § 636. Currently pending2 are: (1) Plaintiff’s Motion to Sanction Defendant for Spoliation of Evidence and to Grant Default Judgment or Adverse Jury Instruction (“First Motion for Sanctions”) with supporting Memorandum of Law, plaintiff’s Supplement, defendant’s Response in Opposition, and plaintiff’s Reply (Paper Nos. 62, 63, 85, 114, 115); and (2) Plaintiff’s Motion to Sanction Defendant for Suppression of Relevant Evidence (“Second Motion for Sanctions”), defendant’s Response in Opposition, plaintiff’s Reply, and defendant’s Surreply.3 (Paper Nos. 4 Defendant relies on the standard from Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277 (4th Cir. 2004) to argue that, in order to hold defendant liable for discrimination, plaintiff must present evidence that the actual decisionmaker had a discriminatory animus that affected the adverse employment decision. Evidence that the actual decisionmaker’s influential subordinate had a discriminatory animus is not sufficient to establish the defendant’s liability for employment discrimination. Hill, 354 F.3d at 291. The Court is of the view, however, that regardless of whether Pritchett or Mayor Rippons was the actual decisionmaker under the Hill standard, Pritchett’s emails and other documents could be relevant for the purposes of discovery. See Sawicki v. Morgan State Univ., WMN-03-1600, 2005 WL 5351448, at *11 (D. Md. Aug. 2, 2005) (holding that Hill required the court to consider whether an influential subordinate’s actions and omissions raised a reasonable inference of discrimination, considering the great frequency with which the actual decisionmaker followed the subordinate’s recommendations regarding promotion decisions). 2 116, 119, 121, 123 Attach. 1). The court held a motions hearing on March 4, 2008. Based on the entire record in this case, including the motions hearing, the court denies plaintiff’s First and Second Motions for Sanctions. I. Factual Background In this action, plaintiff Ina Sampson (“plaintiff”) asserts claims under Title VII of the Civil Rights Act of 1964 alleging race discrimination and discrimination under the Americans with Disabilities Act (“ADA”) based on defendant City of Cambridge’s (“defendant”) failure to promote her to the position of Assistant Director of the Department of Public Works (“DPW”) and for retaliation. (Paper No. 70 at 1-2.) Plaintiff alleges that David Pritchett (“Pritchett”), the then Director of the DPW, exhibited a discriminatory animus against plaintiff on the basis of her race and medical condition, which affected his decision not to promote her. (Paper No. 81 at 13- 14, 23.) In response, defendant argues that it was Cleveland Rippons, Mayor of the City of Cambridge, Maryland, not Pritchett, who was responsible for the decision whether to promote plaintiff, and plaintiff has not produced any evidence suggesting that Mayor Rippons had any discriminatory animus against plaintiff.4 (Paper No. 70 at 27-28.) 3 A. Allegations of Spoliation On June 26, 2006, plaintiff’s counsel sent an electronic evidence preservation letter to defendant, stating that “all electronic and non-electronic evidence related to this complaint must be preserved.” (Paper No. 63, Ex. 1 at 1.) Plaintiff then initiated suit on August 15, 2006. (Paper No. 63 at 3 n.1.) According to deposition testimony, defendant had no formal process for preserving electronic data in anticipation of litigation and no formal means to back up email communications. (Paper No. 63 at 5.) There is no evidence that defendant implemented such a process after receiving the electronic preservation letter. Defendant’s Geographic Information Systems Specialist, Dale Price, testified that he instructed the two people he believed to be most relevant to the case, Pritchett and Oden Wheeler, defendant’s Risk Manager, not to delete their emails. (Paper No. 63 at 5-6.) At the December 7, 2006 deposition of David Pritchett, plaintiff asked defendant to search the DPW employees’ computer hard drives for relevant evidence, including emails, using the terms “Ina Sampson,” “discrimination,” “race,” “disability,” and “grievance.” (Paper No. 114 at 2-3.) Price searched the individual DPW employees’ computers on January 8 and 9, 2007 and produced the emails with the relevant terms. (Paper No. 114 at 2.) Defendant did not produce any email from Pritchett’s computer because no email existed on Pritchett’s hard drive as of at least January 9, 2007. (Paper No. 63 at 4; Paper No. 114 at 3.) Defendant was able to produce some emails written by Pritchett that had been obtained from other employees’ computers. (Paper No. 63 at 3.) Around the time Price searched the computer for relevant terms, Wheeler sent the computer to an outside computer company named Automated Computers to verify that there were no emails on the hard drive. (Paper No. 63 at 7; Paper No. 5 At the motions hearing, defendant clarified that this statement referred to the lack of emails on the hard drive, but that there were other types of recoverable documents on the hard drive. 4 63, Ex. 4 at 37-38.) In April 2007, defense counsel indicated to plaintiff’s counsel that there was “nothing on” Pritchett’s hard drive.5 (Paper No. 63 at 4.) On June 18, 2007, plaintiff retained Kroll Ontrack, a data recovery company, to examine Pritchett’s hard drive. (Paper No. 63 at 2.) Kroll Ontrack issued their report (“Kroll Report”) on August 15, 2007. Kroll Ontrack found that the “David Pritchett” profile existed on the hard drive at one time, but was no longer active, and that the active profile was that of “Bob Phillips,” which was written in January or February 2007. (Paper No. 85, Ex. 1 at 3.) It also confirmed that there were no email messages on the hard drive. (Paper No. 85, Ex. 1 at 3.) The Kroll Report indicated, however, that there was no evidence that a wiping utility feature had been installed or used on the computer. (Paper No. 85, Ex. 1 at 3.) Along with other types of computer activity, the Kroll Report did find evidence of files being sent to the computer’s recycle bin between January 18 and February 13, 2007 and that the disk defragmenter program, which can be used to overwrite files, was run on January 9, 2007. (Paper No. 85, Ex. 1 at 3.) Plaintiff later asked Kroll Ontrack to examine the hard drive a second time because of confusion over the results of the first exam and defendant’s statement its Opposition to the First Motion for Sanctions that “[i]n an effort to accommodate [an] employee who needed a computer, Defendant removed the hard drive from [Pritchett’s] laptop and installed a new hard drive. Defendant preserved the hard drive for review and inspection by Plaintiff.” (Paper No. 114 at 5.) Knoll Ontrack issued its second report on October 19, 2007 and was not able to determine how the defendant’s statement could be completely true, given the evidence of two profiles existing 5 on the hard drive. (Paper No. 115, Ex. 2 at 3-4.) At the motions hearing, defense counsel advised that his previous statements in the Opposition were wrong and confirmed that the hard drive that was produced for plaintiff’s inspection was Pritchett’s when he was employed with DPW, but that a new profile had been added to that same hard drive to accommodate a new employee, Bob Phillips. Phillips used this hard drive from some point in January until February 21, 2007, when that hard drive was removed and given to plaintiff to inspect, at which time Phillips was given a new hard drive. At the March 4th hearing, neither expert was able to offer an expert opinion as to why there were no emails on Pritchett’s hard drive. Dale Price testified on behalf of the defendant that he expected to find emails on Pritchett’s computer when he conducted the search in January 2007, but he did not find any emails at that time. Price also testified that individual employees could set the automatic deletion settings on their own computers’ email system, including setting the computer to delete selected emails automatically upon closing the email program without the computer saving any record of the emails. Brian Rydstrom of Kroll Ontrack testified on behalf of the plaintiff that, after searching the programs that DPW uses for office email, he determined that there were no email messages on Pritchett’s hard drive. Rydstrom observed that, ordinarily, adding an additional profile to the hard drive, like when Price added Phillips’s profile, should not result in the deletion of documents from the original profile. To illustrate this point, Rydstrom likened the hard drive to a bank of school lockers, in which each student has his own locker or profile, and his own combination or password to gain access. Like the lockers, two profiles can exist side-by-side and different users can use the same space to store different information, gaining access only to their own information. In order for Rydstrom to assess whether 6 In the papers, plaintiff at one time suggested that Pritchett returned to the DPW facility after his resignation to delete files from his computer, but there has been no evidence presented to substantiate this claim. (Paper No. 63 at 10.) 6 Pritchett’s profile was completely overwritten or whether any of Pritchett’s emails remain on the hard drive, he would need to search the drive’s unallocated space, at a cost of approximately $2,200. Rydstrom stated that he doubted this search would yield anything but the “breadcrumbs” of whatever documents used to be in Pritchett’s profile. B. Plaintiff’s First Motion for Sanctions In the First Motion for Sanctions, plaintiff maintains that she is entitled to a default judgment or, in the alternative, an adverse inference jury instruction because defendant irreparably prejudiced her ability to present her case by failing to preserve electronic data on the hard drive of Pritchett, the person whom plaintiff alleges discriminated against her. Because of what plaintiff characterizes as defendant’s bad faith in permanently destroying relevant evidence, plaintiff claims that she has been substantially prejudiced and is effectively denied the ability to litigate her case, which necessitates a default judgment or, at least, an adverse inference instruction. Plaintiff refined her argument regarding how defendant breached its duty to preserve relevant evidence as different facts became available in the papers supporting this motion and at the March 4th hearing.6 At the hearing, plaintiff’s counsel argued that defendant’s failure to implement a process to preserve relevant electronic evidence, which allowed Pritchett’s emails to be lost by some unknown means, was evidence of defendant’s bad faith and necessitated sanctions for spoliation. In its Response in Opposition to the First Motion for Sanctions, defendant maintains that plaintiff has been given the opportunity to engage in extensive discovery and defendant has 7 produced numerous documents responsive to plaintiff’s discovery requests. To establish that neither defendant nor Pritchett purposely deleted documents, defendant attached as an exhibit approximately 1,700 documents from the DPW file server that Pritchett authored. Defendant also notes that the Kroll Report indicated there was no evidence that a wiping utility was used on Pritchett’s hard drive. At the motions hearing, defendant primarily argued that plaintiff had not met her burden to establish that Pritchett’s emails contained relevant evidence, which is a necessary element of a claim for sanctions for spoliation. Defendant also advances the position that it is unlikely that many emails received or authored by Pritchett ever existed at all, and that it is even less likely that relevant emails existed. In his deposition, Pritchett testified that he sent only about three or four emails per week. (Paper No. 114 at 6.) Pritchett claims that, rather than send emails, he would create documents and save them to the DPW file server. Furthermore, Pritchett was on vacation, and then Family and Medical Leave, from July 31, 2006 to November 26, 2006, eventually resigning from the DPW on December 11, 2006. (Paper No. 114 at 4.) He testified that he could not recall if he sent any emails from the time he returned from leave to the time he resigned. (Paper No. 114 at 4.) Therefore, it is not clear whether Pritchett authored any emails from late July to his resignation. Perhaps most significantly, Mayor Rippons, who defendant argues is the actual decisionmaker responsible for the hiring of employees at the level for which plaintiff sought promotion, does not use email at all. (Paper No. 114 at 6.) As a result, defendant argues, it is highly unlikely that any emails between Pritchett and Mayor Rippons that were relevant to promotion decision ever existed. 7 Although plaintiff at one time referred to the exhibit at issue as Exhibit 2, it is now clear that the appropriate exhibit is Exhibit 4. 8 Plaintiff included an affidavit from a legal assistant to plaintiff’s counsel, confirming that most of the documents contained on the disk had not previously been produced. (Paper No. 121, Ex. A.) 8 C. Plaintiff’s Second Motion for Sanctions Plaintiff’s Second Motion for Sanctions stems from defendant’s inclusion of Exhibit 4 with its Opposition to the First Motion for Sanctions.7 This exhibit was a disk that contained approximately 1,700 documents, which defendant initially represented in its Opposition to plaintiff’s First Motion for Sanctions to be documents retrieved from Pritchett’s hard drive. (Paper No. 114 at 3.) Plaintiff argues that producing documents from a hard drive that defense counsel had previously represented to have “nothing on it” is proof of defendant’s bad faith. (Paper No. 116 at 4.) Plaintiff also maintains that some of the documents included in Exhibit 4 are relevant to this case and were not produced. (Paper No. 121 at 2.) In plaintiff’s Reply to the Second Motion for Sanctions, plaintiff identified eight specific documents that she believes are relevant and were not produced.8 (Paper No. 121 at 2-4.) Plaintiff argues that the documents she believes were relevant, inter alia, establish Pritchett’s animus against African Americans, such as two memoranda in which Pritchett explained that he was resigning as Director of DPW because of his strained relationship with three City Commissioners, who plaintiff has observed are African American. (Paper No. 121 at 3.) Because defendant, as plaintiff argues, willfully withheld relevant documents, plaintiff reiterates her demand for either a default judgment in her favor or an adverse inference instruction. 9 Plaintiff cites Mut. Fed. Sav. & Loan Ass’n v. Richards & Associates, Inc., 872 F.2d 88 (4th Cir. 1989), which relies on the court’s authority to impose sanctions based on Federal Rule of Civil Procedure 37(b). While the test set forth in this case is very similar to the test applicable when a court is relying on its inherent authority to impose sanctions, it is not the precise test that this court must apply to this dispute. The court’s discretion to impose sanctions under its inherent authority is more limited than that under Rule 37. Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir. 1990). This distinction, however, is of no consequence in this case. 9 Defendant responds that it did not withhold relevant evidence. Although initially describing the documents in Exhibit 4 as being from Pritchett’s hard drive, defense counsel states in its Surreply that they are from the DPW file server, which defendant later confirmed at the motions hearing. (Paper No. 123, Attach. 1 at 1-2.) According to defendant, Price previously searched these documents, using the plaintiff’s name “Ina Sampson” as a search term; defendant then produced those documents that were responsive to the search and relevant to the issues in this case. (Paper No. 123, Attach. 1 at 2-3.) In response to plaintiff’s identification of eight documents she claims are relevant and were withheld during discovery, defendant addressed in its Surreply why each document is not relevant and, therefore, did not need to be produced. (Paper No. 123, Attach. 1 at 3-9.) Defendant maintains that plaintiff has not established that defendant intentionally withheld relevant documents and, therefore, sanctions are not appropriate. II. Legal Standard Regarding Sanctions for Spoliation Plaintiff cites Federal Rule of Civil Procedure 37 to support her claim for sanctions against defendant for spoliation of evidence.9 Federal courts have two sources of authority to issue sanctions due to spoliation. First, a court may issue sanctions under Rule 37 when a party commits spoliation in violation of a specific court order. United Med. Supply Co., Inc. v. United States, 77 Fed. Cl. 257, 264 (2007). The court’s second source of power to impose sanctions for 10 spoliation is its inherent authority to control the judicial process. Id. at 263 (citing Chambers v. NASCO, Inc., 501 U.S. 32 (1991)). Plaintiff asserts facts that implicate the court’s inherent authority to impose sanctions because plaintiff alleges that defendant violated the general duty to preserve relevant evidence, rather than violating a specific court order. The term “spoliation” means “the destruction or material alteration of evidence or . . . the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). A party seeking sanctions based on the spoliation of evidence must establish three elements: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a “culpable state of mind;” and (3) the evidence that was destroyed or altered was “relevant” to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it. Thompson v. United States Dep’t of Hous. & Urban Dev., 219 F.R.D. 93, 101 (D. Md. 2003) (citing Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212, 220 (S.D.N.Y. 2003)). This standard applies when a party is seeking any form of sanctions for spoliation, not just an adverse inference jury instruction. Zubulake IV, 220 F.R.D. at 220. As to the first element, “[t]he duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Silvestri, 271 F.3d at 591 (citation omitted). The duty to preserve relevant evidence is an independent duty that exists even if the party seeking the evidence did not request a court order for its preservation. Thompson, 219 F.R.D. at 100. In order to fulfill the duty to preserve relevant evidence, “[o]nce a 11 party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Id. at 100 (quoting Zubulake IV, 220 F.R.D. at 218). In order to impose sanctions, the court must find evidence as to the second element, that any destruction or loss of documents took place with a “culpable state of mind.” The three possible states of mind that satisfy this requirement are bad faith destruction, gross negligence, and ordinary negligence. Id. at 101. Although, some courts require a showing of bad faith before imposing sanctions, the Fourth Circuit requires only a showing of fault, with the degree of fault impacting the severity of sanctions. Silvestri, 271 F.3d at 590; United Med. Supply Co., Inc., 77 Fed. Cl. at 266. As discussed below, the Fourth Circuit has established guidelines for when the most severe sanctions, namely adverse inference jury instructions and sanctions that dispose of a case such as a default judgment or a dismissal, are appropriate, taking into consideration the spoliator’s level of culpability. The third element of the test for imposition of sanctions for spoliation is that the lost documents are relevant to the proponent’s claims and defenses. A failure to preserve documents in bad faith, such as intentional or willful conduct, alone establishes that the destroyed documents were relevant. Thompson, 219 F.R.D. at 101. The reason relevance is presumed following a showing of intentional or willful conduct is because of the logical inference that, when a party acts in bad faith, he demonstrates fear that the evidence will expose relevant, unfavorable facts. Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995) (citing authority). With a failure to preserve evidence through either gross or ordinary negligence, however, the plaintiff must establish that the lost documents were relevant to her case. 10 In Rule 401, “relevant” means “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” FED. R. EVID. 401. 11 Most of the Fourth Circuit cases involving sanctions for spoliation of evidence arise in the context of a defendant asking for dismissal of a plaintiff’s claims because of destruction of evidence by the plaintiff. As the Fifth Circuit has noted, “[b]ecause . . . rendering default 12 Thompson, 219 F.R.D. at 101 (quoting Zubulake IV, 220 F.R.D. at 220). The test for relevance for the purposes of establishing the third element is somewhat more stringent than merely meeting the standard provided in Federal Rule of Evidence 401.10 The Fourth Circuit describes the test for relevant evidence necessary to impose sanctions as that evidence which would “naturally have been introduced into evidence.” Vodusek, 71 F.3d at 156. In Thompson, the court described the definition of “relevant evidence” necessary for a court to impose sanctions as follows: “to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.” 219 F.R.D. at 101. This court also finds instructive the standard used in Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167 F.R.D. 90 (D. Colo. 1996) which provides: “The burden is on the aggrieved party to establish a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the lost material would have produced evidence favorable to his cause.” Gates Rubber, 167 F.R.D. at 104 (citations omitted). Should a court find that these above-described elements are met, then any sanctions imposed must suit “the purpose of leveling the evidentiary playing field and . . . the purpose of sanctioning the improper conduct.” Vodusek, 71 F.3d at 156. In this case, the plaintiff has asked the court to enter a default judgment against defendant as a sanction for its alleged acts of spoliation.11 The Fourth Circuit has indicated that courts should only impose sanctions that judgment is equally as harsh a sanction as dismissing the case of a plaintiff with prejudice, we cite cases involving these sanctions interchangeably.” Pressey, 898 F.2d at 1021 n.2. The court here cites cases involving requests for default judgment and for dismissal interchangeably. 12 Silvestri is similar to other products liability cases where a dismissal was warranted because the allegedly defective product was destroyed and the defendant could not obtain the necessary evidence through other means. Compare King v. Am. Power Conversion Corp., No. 05-1721, 2006 WL 1344817, at *4-*5 (4th Cir. May 17, 2006) (affirming dismissal for spoliation in a products liability case because defendant suffered irreparable prejudice and could not mount a defense without examining the allegedly defective Uninterrupted Power Source), with Cole v. Keller Indus., Inc., 132 F.3d 1044, 1047 (4th Cir. 1998) (vacating a dismissal due to spoliation because there was no bad faith and the opposing party was able to examine the allegedly defective ladder, therefore not suffering substantial prejudice). 13 dispose of a case in the most extreme circumstances: [T]o justify the harsh sanction of dismissal, the district court must consider both the spoliator’s conduct and the prejudice caused and be able to conclude either (1) that the spoliator’s conduct was so egregious as to amount to a forfeiture of his claim, or (2) that the effect of the spoliator’s conduct was so prejudicial that it substantially denied the defendant the ability to defend the claim. Silvestri, 271 F.3d at 593. In Silvestri, the court affirmed dismissal of the case after the plaintiff allowed the vehicle, which was the “sole piece of evidence” in this products liability action, to be repaired and sold without giving defendant notice and an opportunity to inspect it.12 Id. at 585. The court found that plaintiff’s counsel did not notify the defendant of plaintiff’s claims for several years, by which time evidence of the automobile accident was destroyed, which revealed “a level of culpability that was at least negligent and may have been deliberate.” Id. at 594. Because the Silvestri Court could not say that plaintiff’s conduct alone justified dismissal pursuant to the first of the two grounds noted above, it addressed the element of prejudice and held that plaintiff’s actions “denied [defendant] access to the only evidence from which it could develop its defenses 14 adequately.” Id. In sum, in order for the court to impose a default judgment, the plaintiff must establish either that defendant’s actions amounted to egregious acts of willful spoliation or that plaintiff was highly prejudiced and denied the only means to establish her case. As an alternative to her request for a default judgment against defendant, plaintiff here requests that the court give an adverse inference jury instruction at trial. In Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995), the Fourth Circuit addressed when an adverse inference jury instruction would be warranted for spoliation of evidence. The Vodusek Court noted that bad faith is not an essential prerequisite to the finding that an adverse inference instruction is appropriate. 71 F.3d at 156. Rather, the court must find the spoliator acted, at a minimum, willfully in the destruction of relevant evidence. Id. [T]he trial court has broad discretion to permit a jury to draw adverse inferences from a party’s failure to present evidence, the loss of evidence, or the destruction of evidence. While a finding of bad faith suffices to permit such an inference, it is not always necessary. . . . An adverse inference about a party’s consciousness of the weakness of his case, however, cannot be drawn merely from his negligent loss or destruction of evidence; the inference requires a showing that the party knew the evidence was relevant to some issue at trial and that his willful conduct resulted in its loss or destruction. Id. If a spoliator’s conduct is merely negligent, therefore, the adverse inference instruction is not an appropriate sanction. See Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450-51 (4th Cir. 2004) (affirming a denial of an adverse inference request because there was no reasonable basis to conclude that the store manager willfully lost evidence when she did not question a witness about the cause of plaintiff’s injury because she incorrectly thought the store’s security cameras had captured the event). 15 In applying the standard to the facts presented in Vodusek, the court held that plaintiff’s expert’s conduct in “employ[ing] destructive methods which rendered many portions of the boat [at issue in the products liability case] useless for examination by the defendants and their experts,” was willful and necessitated an adverse inference because he “ignored the possibility that others might have entertained different theories to which the destroyed portions might have been relevant.” Id. at 155-57. In order for the court to give an adverse inference instruction, plaintiff must establish that defendant acted either willfully or in bad faith in failing to preserve relevant evidence, while, if the court finds that the defendant’s conduct was merely negligent, an adverse inference instruction is not an appropriate sanction. III. Discussion In applying the test for determining whether to impose sanctions for spoliation, the first element is whether “the party having control over the evidence had an obligation to preserve it when it was destroyed or altered.” Thompson, 219 F.R.D. at 101. It is clear that defendant had a duty to preserve relevant evidence that arose no later than June 26, 2006, when plaintiff’s counsel sent the letter to defendant requesting the preservation of relevant evidence, including electronic documents. At that time, although litigation had not yet begun, defendant reasonably should have known that the evidence described in the letter “may be relevant to anticipated litigation.” Silvestri, 271 F.3d at 591. It is also clear that some documents that were under defendant’s control, namely the email messages at one time located on Pritchett’s computer, were somehow lost or destroyed after defendant’s duty to preserve relevant evidence had attached, satisfying the first element of the Thompson analysis. 13 At the March 4th hearing, plaintiff’s counsel requested that defendant share in the $2,200 cost of searching the computer’s unallocated space, although plaintiff’s expert said that it is unlikely that such a search would produce relevant documents. The court denies plaintiff’s request. 16 The second element of the applicable test is whether the destruction or loss was accompanied by a “culpable state of mind.” Thompson, 219 F.R.D. at 101. For the following reasons, the court finds there is insufficient evidence from which to conclude that defendant acted willfully or in bad faith when it failed to preserve the electronic evidence at issue. First, neither of the parties’ experts was able to give an expert opinion on why no emails exist on Pritchett’s computer. Dale Price testified on defendant’s behalf that he expected to find emails on the hard drive when he searched it for discoverable information in January of 2007, but he was not able to articulate a reason for why there were no emails present. Brian Rydstrom testified on behalf of plaintiff that some of Pritchett’s emails may be in the hard drive’s unallocated space, but that he is presently unsure why there are no emails in the allocated space of the hard drive. Although Mr. Rydstrom noted that another examination could yield further information, it is unlikely to recover more than the “breadcrumbs” of Pritchett’s original emails.13 Second, plaintiff did not present any evidence that would suggest that Pritchett or anyone on behalf of defendant purposely destroyed any documents on the hard drive. Although plaintiff suggested that Pritchett may have deleted documents on his hard drive after he retired, there is no evidence that occurred. At the motions hearing, Price testified that he was with Pritchett the day he came to retrieve his personal belongings from the DPW office and that Pritchett did not access the computer at that time. Also, because of the dates of his vacation and Family and 14 In a March 6, 2008 letter to the court, plaintiff’s counsel cites to two cases which they contend illustrate, by analogy, defendant’s bad faith. The court has reviewed those cases and does not find them instructive here because the fact patterns of the other cases are quite different from the facts of this case. See Broccoli v. Echostar Communications Corp., 229 F.R.D. 506, 511 (D. Md. 2005) (“In short, the evidence of a regular policy at Echostar of “deep-sixing” nettlesome documents and records (and of management’s efforts to avoid their creation in the first instance) is overwhelming.”); Metro. Opera Ass’n, Inc. v. Local 100, Hotel Employees & 17 Medical Leave, Pritchett had limited access to the computer after defendant received plaintiff’s preservation letter in June of 2006. Furthermore, the Kroll Report did not find any evidence of a wiping utility being used or downloaded on to Pritchett’s hard drive at any time or evidence that the SpyBot program was used to delete or overwrite files. In short, plaintiff did not present any evidence to establish that Pritchett or any of defendant’s other employees or agents intentionally or willfully deleted Pritchett’s emails. Third, while defendant’s efforts to retain relevant documents were not exemplary, they do not rise to the level of bad faith. Defendant did not, as Thompson requires, “put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” 219 F.R.D. at 100. But, as Price testified, he did instruct certain DPW employees to retain their files. Notably, Price instructed Pritchett and Wheeler, two of the people most involved in this dispute, not to delete any electronic files, including emails. Rydstrom testified at the motions hearing that there were documents on Pritchett’s hard drive, so there was not a complete erasure of the hard drive. It is also of note that plaintiff does not allege that any other DPW employees’ emails were not properly retained. In fact, defendant produced hundreds of emails from other DPW employees, many of which this court has reviewed, and some of those contained emails authored by Pritchett. While defendant could have done more to ensure the preservation of electronic evidence, plaintiff has not established that defendant acted in bad faith.14 The court concludes Rest. Employees Int’l Union, 212 F.R.D. 178, 222-23 (S.D.N.Y. 2003) (describing a failure to implement a systematic procedure to preserve documents in the absence of a regular document retention policy that was set against the backdrop of widespread, intentional abuses of the discovery process by defendant and its counsel). 18 that, in the absence of any evidence that defendant’s actions were willful or in bad faith, the defendant’s failure to preserve Pritchett’s emails was negligent. See Zubulake IV, 220 F.R.D. at 220 (“Once the duty to preserve attaches, any destruction of documents is, at a minimum, negligent.”). Because the court concludes that the defendant’s “culpable state of mind” was that of negligence, the court must also address the third element of the test for imposing sanctions due to spoliation, which is whether the lost documents were relevant. “[W]hen the destruction is negligent, relevance must be proven by the party seeking the sanctions . . . to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims and defenses of the party that sought it.” Thompson, 219 F.R.D. at 101 (citations omitted). In order for the court to order sanctions for negligent spoliation, the plaintiff must establish to “a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the lost [emails] would have produced evidence favorable to [her] cause.” Gates Rubber, 167 F.R.D. at 104 (citations omitted). As discussed below, the court concludes that plaintiff has not established that the lost evidence would have supported her claims. While there is no doubt that Pritchett provided input and a recommendation to Mayor Rippons on the decision of whether to promote plaintiff, the record in this case establishes that it is completely speculative to assume that any emails relevant to the promotion decision were lost. First, Pritchett testified that he does not use email often, instead drafting other types of 15 In fact, it was noted at the motions hearing that, when Pritchett communicated to Mayor Rippons that another employee, Enessa Whitten, was not interested in being promoted to the Assistant Director position, he did so through a typed memo, not through email. 19 documents and saving them to the DPW file server. Therefore, it could be inferred that Pritchett would have been more likely to create a document containing important information and save it to the file server than he was to write an email.15 Second, there are a limited number of people to whom Pritchett would have communicated about the decision of whether to promote plaintiff, specifically Wheeler and Mayor Rippons. Wheeler testified in his deposition that he retained all of his emails and that they have already been produced to plaintiff. Mayor Rippons, who was the actual decisionmaker in this case, testified at his deposition that he does not use email at all. Based upon these facts, the likelihood that there were relevant emails from Pritchett regarding plaintiff’s potential promotion (or demonstrating racial or disability-based animus or otherwise) is remote. Thus, it would be sheer speculation to conclude that there were any emails which were lost or destroyed and which contained relevant information, let alone evidence favorable to plaintiff’s case. In sum, while it is evident that there were documents that defendant failed to preserve, there is no evidence that those documents constituted relevant evidence. In cases where courts have imposed sanctions for spoliation, the lost or destroyed evidence was clearly relevant, that is, a reasonable factfinder could conclude the evidence would have supported the proponent’s claims or defenses. No such conclusion can be reached here. See Vodusek, 71 F.3d at 155-57 (holding that an adverse inference was appropriate because the plaintiff’s expert willfully used destructive methods on the boat at issue in this products liability action without regard to the fact that defendant and its experts were unable to examine the boat); Broccoli, 229 F.R.D. at 511-12 16 Because the plaintiff did not establish that the lost material was relevant to her claims or that she is entitled to the imposition of sanctions, the court does not here address the specific requirements necessary to impose a default judgment under Silvestri, 271 F.3d at 593, or an adverse inference under Vodusek, 71 F.3d at 156. 17 Plaintiff also argues that defendant’s production of documents from Pritchett’s hard drive previously represented by defendant to have “nothing on it” is proof of the defendant’s bad faith. (Paper No. 116 at 4-5.) As defense counsel corrected at the motions hearing, however, the documents at issue were not from plaintiff’s hard drive but rather from the DPW file server. While defense counsel’s statement was erroneous, it does not establish defendant’s bad faith. 20 (noting that defendant did not preserve vital employment and termination documents, including emails in which plaintiff had made complaints to his supervisors about being sexually harassed and the internal investigative file regarding those complaints). Because plaintiff has not established that access to Pritchett’s emails would have produced evidence which a reasonable factfinder could conclude supported her claims, plaintiff’s Motion to Sanction Defendant for Spoliation of Evidence and to Grant Default Judgment or Adverse Jury Instruction (“First Motion for Sanctions”) is denied.16 For the following reasons, the court also concludes that plaintiff’s Second Motion for Sanctions must be denied. In that motion, plaintiff claims that defendant withheld relevant documents from production and first provided these documents to plaintiff in defendant’s Opposition to plaintiff’s First Motion for Sanctions. The documents in dispute, while at one time were characterized by defendant as coming from Pritchett’s hard drive, originated from the DPW file server.17 Defendant asserts that it previously reviewed all documents from the DPW file server and produced those documents which it concluded were relevant to this dispute. Plaintiff cited to eight specific documents in her Reply to the Second Motion for Sanctions which she maintains are relevant and were not produced during discovery. The court has reviewed the 21 documents and does not find that they were improperly withheld from production by defendant. Plaintiff argues that four of the eight documents provide relevant evidence of Pritchett’s animus against African Americans, while two other documents indicate that Pritchett treated African American employees differently than Caucasian employees. After reviewing these documents and considering plaintiff’s proffer of relevance, the court finds that none of the six documents in question appear to relate to race in any way or tend to show any evidence of Pritchett demonstrating an animus against African Americans. Although the remaining two documents cited by plaintiff refer to the plaintiff, they do not appear to relate to defendant’s decision not to promote plaintiff. It should also be noted that neither document contains the full name “Ina Sampson,” which was the search term that Dale Price used to identify potentially relevant documents from the DPW file server, as specifically requested by plaintiff’s counsel. (Paper No. 114 at 2-3.) Accordingly, plaintiff has failed to establish that defendant intentionally withheld any relevant evidence so as to warrant the imposition of the sanctions of default judgment or an adverse inference instruction. Plaintiff’s Motion to Sanction Defendant for Suppression of Relevant Evidence (“Second Motion for Sanctions”) is denied. The court is of the view, however, that monetary sanctions against defendant are appropriate given that the second computer examination done by Kroll Ontrack at plaintiff’s request was necessitated solely by defendant’s misstatement. Plaintiff only pursued the second exam because defendant stated in its Opposition to the First Motion for Sanctions that “[i]n an effort to accommodate [an] employee who needed a computer, Defendant removed the hard drive from [Pritchett’s] laptop and installed a new hard drive. Defendant preserved the hard drive for review and inspection by Plaintiff.” (Paper No. 114 at 5.) In fact, the new employee, 22 Bob Phillips, used Pritchett’s former hard drive for several weeks before the drive was removed and given to plaintiff for examination. This mischaracterization in defendant’s Opposition, which implies that Phillips never used Pritchett’s former hard drive, induced plaintiff to seek a second examination of the hard drive, the sole purpose of which was to reconcile this statement with the results of the first computer examination. Accordingly, defendant is ordered to pay for the costs associated with the second examination that Kroll Ontrack performed on Pritchett’s hard drive, the report of which is attached to plaintiff’s Reply to First Motion for Sanctions (Paper No. 115, Ex. 2). Plaintiff shall submit a bill for said examination to defendant within ten (10) days of this order and defendant shall submit payment to plaintiff within (10) days of receipt of the bill. IV. Conclusion For the foregoing reasons, the plaintiff’s First Motion for Sanctions and plaintiff’s Second Motion for Sanctions are denied. A separate order shall issue. __04-30-08________ _______/s/__________________ Date Beth P. Gesner United States Magistrate Judge

Failure to Follow the Maryland Tort Claims Act statute of limitations results in Dismissal

1 In particular, plaintiffs make claims for common law false arrest and false imprisonment, common law malicious prosecution, and unlawful search, seizure, excessive force, and deprivation of property without due process of law in violation of the Maryland and United States Constitutions. 2 In two earlier rulings, I dismissed all charges against the state Commissioner and the prosecutors. (See Docket Number 15 (dismissing claims against Commissioner); Docket Number 25 (dismissing claims against prosecutors).) -1- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BRAD LEE BARNHILL * CATHERINE NICOLE DONKERS * Plaintiffs, * * v. * Civil No. JFM 07-1678 * CHARLES P. STRONG, JR., et al. * Defendants. * * ***** MEMORANDUM OPINION Plaintiffs Brad Lee Barnhill and Catherine Nicole Donkers have brought this action alleging that they were unlawfully arrested and prosecuted on charges of handgun possession and resisting arrest.1 Among the various defendants sued in this case are the Maryland State Troopers who arrested and detained plaintiffs, as well as the Trooper involved in a handgun forfeiture proceeding that plaintiffs allege deprived them of property without due process of law.2 These defendants have filed a motion to dismiss on the grounds of an expired statute of limitations, failure to comply with the Maryland Tort Claims Act, qualified statutory immunity, and the inapplicability of the Fifth Amendment to state actors. For the reasons outlined below, defendants’ motion is granted. 3 Although it is never stated in the complaint, it seems clear that the plaintiffs were released from custody the following day, September 13, 2001. -2- FACTS The relevant facts, drawn from plaintiffs’ complaint, are as follows. On September 12, 2001, plaintiffs were driving in Maryland when they were pulled over by several Maryland State Troopers for an unspecified non-moving violation. (Compl. at 2.) Allegedly acting without cause, the Troopers then “assaulted and battered [plaintiffs] under the pretext of handcuffing them, interrogated [them] without the presence of counsel, compell[ed] them to provide evidence against themselves, and then performed a search of [plaintiffs’] private automobile . . . without lawful authority . . .” (Id. at 2–3.) The Troopers discovered two pistols and accompanying holsters in the glove compartment of plaintiffs’ car. (Id. at 3.) Subsequently, plaintiffs were arrested and charged with handgun possession and resisting arrest. (Id.) At this time, plaintiffs were transported to a detention facility and, approximately eight hours later, brought before a Commissioner for the purpose of setting bond. (Id.) Unable to post bond, plaintiffs spent the night in the detention facility, where they were given a tuberculosis test against their will and strip-searched.3 (Id. at 3–4.) Plaintiffs were initially convicted of the handgun and resisting arrest charges in the District Court for Washington County on December 10, 2001. (Defs.’ Ex. A.) After a series of appeals, however, the Circuit Court for Washington County found that the search of plaintiffs’ car was unlawful and consequently granted plaintiffs’ motion to suppress the handgun. (Compl. at 4; Defs.’ Ex. B.) On June 29, 2004, the handgun and resisting arrest charges were dismissed in light of plaintiffs’ successful motion to suppress. (Compl. at 4; Defs.’ Ex. B.) Plaintiffs then attempted to “secure the return of [the] pistols and holsters” by challenging the administrative forfeiture proceeding in the District Court for -3- Washington County. (Compl. at 4; Defs.’ Ex. C.) This challenge was unsuccessful, and the District Court held in favor of the State on January 31, 2005. (Compl. at 4; Defs.’ Ex. C.) Plaintiffs filed this lawsuit against the Troopers, the State prosecutors, and the Commissioner, on June 25, 2007. ANALYSIS Plaintiffs’ complaint outlines twenty-eight counts against a variety of defendants, and twenty-four of those counts are at issue in the pending motion. Plaintiffs’ claims in these twenty-four counts can be broadly grouped into six categories: (1) Maryland common law claims for false arrest and false imprisonment; (2) Maryland common law claims for malicious prosecution; (3) Maryland constitutional claims for unlawful search, seizure, and excessive force, in violation of Article 26 of the Maryland Declaration of Rights; (4) Maryland constitutional claim for deprivation of property without due process of law, in violation of Article 45 of the Maryland Declaration of Rights; (5) Federal claims for unlawful search, seizure, and excessive force, in violation of 42 U.S.C. § 1983; and (6) Federal claim for deprivation of property without due process of law, in violation of 42 U.S.C. § 1983. Defendants argue that the state common law claims for false arrest and false imprisonment, the state constitutional claims under Article 26, and the federal claims for unlawful search, seizure, and excessive force are time-barred by the statute of limitations. Defendants next argue that all state law claims are barred by the Notice of Claim provisions of the Maryland Tort Claims Act. Defendants further contend that, as State Troopers, they are entitled to a qualified immunity that mandates dismissal of the state claims. Finally, defendants argue that the federal claim for deprivation of property without due process of law should be dismissed because plaintiffs pled a Fifth Amendment violation and the Fifth Amendment applies only to the federal government. For the reasons laid out below, defendants’ motion is granted in part and denied in part. 4 These claims include Counts 1 and 6. In their opposition brief, plaintiffs claim that they did not “file claims in this suit for false arrest, false imprisonment, assault, battery, [and] kidnapping . . .” (Pls.’ Opp’n to Defs.’ Mot. to Dismiss at 3.) Rather, plaintiffs assert, the state claims they seek to pursue are constitutional torts. (Id.) Nevertheless, the complaint itself clearly alleges false arrest and imprisonment, and I will thus consider these common law claims as well. Moreover, constitutional torts in Maryland are subject to the same three year statute of limitations. See infra § I(B). -4- I. Statute of Limitations A. State Common Law Claims for False Arrest and Imprisonment The state causes of action, both those filed pursuant to the Maryland Declaration of Rights and those filed pursuant to the common law, are subject to a three year statute of limitations. See Md. Code. Ann. Cts. & Jud. Proc. § 5-101 (creating a three year default statute of limitations); cf. Davidson v. Koerber, 454 F. Supp. 1256, 1260 (D. Md. 1978) (holding that Article 23 of the Maryland Declaration of Rights is subject to the default statute of limitations). The dispositive question for the state claims is when the causes of action accrued. In Maryland, a cause of action accrues “when the legally operative facts permitting the filing of [the] claims came into existence.” Heron v. Strader, 761 A.2d 56, 59 (Md. 2000). The gravamen of plaintiffs’ claims of false arrest and imprisonment is that the defendants arrested and detained plaintiffs without legal authority or consent. (Compl. ¶¶ 30–31, 82–83.) The practical issue is whether false arrest and false imprisonment claims accrue at the time of the arrest and imprisonment or at the time criminal charges are resolved by an acquittal or dismissal. Maryland is clear that accrual occurs at the time of arrest or imprisonment. In examining the timeliness of a Notice of Claim filed pursuant to the Local Government Tort Claims Act, the Maryland Court of Appeals stated that to analyze when a cause of action arises, courts “must examine the elements of the cause of action, since . . . a cause of action is said to have arisen ‘when the facts exist to support each element.’” Heron, 761 A.2d at 59 5 These claims include Counts 3, 5, 8, 10, 12, 14, 16, and 18. 6 Article 26 reads: “We . . . declare . . . [t]hat 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.” -5- (quoting Owens-Illinois v. Armstrong, 604 A.2d 47, 54 (Md. 1992)). “The elements of false arrest and false imprisonment are identical. Those elements are: 1) the deprivation of the liberty of another; 2) without consent; and 3) without legal justification.” Id. In Heron, the Maryland Court of Appeals made clear that claims for false arrest and false imprisonment arise on “the date that [plaintiff] was arrested and detained by the police” and not the later date of acquittal. Id. (“The facts alleged to support each element of [plaintiff’s] claim were in existence at that time.”). Accordingly, the statute of limitations begins to run on the day of arrest or imprisonment. Here, plaintiffs were arrested and detained on September 12, 2001, and presumably released on September 13, 2001, after their overnight stay. (Compl. ¶ 17.) Because the statute of limitations is three years, any accrued claim filed after September 13, 2004 is time-barred. Plaintiffs filed this lawsuit on June 25, 2007. Consequently, plaintiffs’ claims for false arrest and imprisonment are untimely and Counts 1 and 6 of the complaint are dismissed. B. State Constitutional Claims Under Article 26 of the Maryland Declaration of Rights5 Plaintiffs’ state constitutional claims for unlawful search and seizure and excessive force allege violations of Article 26 of the Maryland Declaration of Rights.6 See Widgeon v. E. Shore Hosp. Ctr., 479 A.2d 921 (1984) (finding that plaintiff can sustain a tort action to remedy alleged violations of Articles 24 and 25 of the Maryland Declaration of Rights). As mentioned above, these claims are subject to a three year statute of limitations. Cf. Davidson, 454 F. Supp. at 1260 7 Wallace is discussed extensively below, see infra § I(C). -6- (holding that Article 23 of the Maryland Declaration of Rights is subject to the default statute of limitations); see also Electro-Nucleonics, Inc. v. Wash. Suburban Sanitary Comm’n, 554 A.2d 804, 810 (Md. 1989) (“Other than [the default limitations statute], there is no statute addressing limitations on actions alleging a violation of art. 24 of the Declaration of Rights or of the other federal and state constitutional provisions implicated in any inverse condemnation claim. Consequently, the general three year statute of limitations found in [the default statute] controls Plaintiff’s claim.”). Accordingly, if three years passed between the accrual of these causes of action and the date this suit was filed, the relevant Counts will be dismissed. Article 26 of the Maryland Declaration of Rights is “in pari materia with the prohibitions against unreasonable searches and seizures embodied in the Fourth Amendment of the federal constitution.” Solis v. Prince George’s County, 153 F. Supp. 2d 793, 804 (D. Md. 2001). Plaintiffs’ state constitutional claim here focuses on the fact and the manner of their arrest and detention, which occurred on September 12 and 13, 2001. (See, e.g., Compl. ¶¶ 172–186 (outlining a claim for unreasonable search); id. ¶¶ 95–105 (outlining a claim for unreasonable seizure); id. ¶¶ 119–131 (outlining a claim for excessive force).) The state causes of action for unconstitutional search, seizure, and excessive force accrued on those dates, and because this lawsuit was filed in June 2007, the claims are timebarred. Cf. Wallace v. Kato, 127 S. Ct. 1091 (2007) (holding that § 1983 lawsuit alleging Fourth Amendment violations must be filed within three years of arrest and detention, and rejecting equitable tolling doctrine that would delay the running of the statute of limitations until criminal proceedings terminated)7; Patterson v. State, 930 A.2d 348, 370–71 (Md. 2007) (“Because it is 8 These claims include Counts 2, 4, 7, 9, 11, 13, 15, and 17. -7- well-settled that Article 26 of the Maryland Declaration of Rights is construed in pari materia with the Fourth Amendment, this Court generally has applied Supreme Court precedent to delineate the extent of the protections guaranteed by Article 26.”). In line with this conclusion, Counts 3, 5, 8, 10, 12, 14, 16, and 18 are dismissed. C. Federal Claims Under Section 1983 for Unlawful Search, Seizure, and Excessive Force8 Plaintiffs also allege that defendants violated their federal constitutional rights, enshrined in the Fourth Amendment and incorporated to the states through the Fourteenth Amendment, to be free from unreasonable searches and seizures as well as excessive force. These claims also focus on the arrest and detention of plaintiffs occurring on September 12 and 13, 2001. (See, e.g., Compl. ¶¶ 36–43 (outlining a claim for unreasonable seizure in light of arrest and detention of plaintiffs); id. ¶¶ 54–66 (outlining a claim for excessive force in light of manner of arrest); id. ¶¶ 157–171 (outlining a claim for unreasonable search in light of Terry frisk and search incident to arrest).) Defendants also move to dismiss these claims on the grounds that the statute of limitations expired before suit was filed. Section 1983 adopts the statute of limitations that the forum State provides for general personal injury cases. See Owens v. Okure, 488 U.S. 235, 249–50 (1989) (“We accordingly hold that where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.”). In Maryland, the general statute of limitations for personal injury cases is three years. See Md. Code. Ann. Cts. & Jud. Proc. § 5-101 (making default statute of limitations three years); Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 187 (4th Cir. 1999) (“It is -8- well-settled that sections 1983 and 1985 borrow the state’s general personal injury limitations period, which in Maryland is three years.”). Consequently, plaintiffs’ claims will be time-barred if these causes of action accrued more than three years before this suit was filed. Although state law is adopted for statute of limitations purposes, federal law itself governs the question of when a cause of action accrues. See Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975) (“The time limitation for civil rights actions, such as those under section 1983, is borrowed from state law . . . but the state law concerning time of accrual is in no sense loaned to the body of federal civil rights law along with the tolling period.”). “Under federal law, a cause of action accrues when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action.” Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 955 (4th Cir. 1995). Phrased differently, a federal cause of action accrues when “the plaintiff has ‘a complete and present cause of action’” or when the plaintiff “can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997) (quoting Rawlings v. Ray, 312 U.S. 96, 98 (1941)). This issue requires a close analysis of two cases, Heck v. Humphrey, 512 U.S. 477 (1994), and Wallace v. Kato, 127 S. Ct. 1091 (2007). Citing Heck, plaintiffs argue that a cause of action under § 1983 is “not cognizable until the conviction or sentence for the state’s criminal claims against Plaintiff have been overturned.” (Pls.’ Opp’n to Defs.’ Mot. to Dismiss ¶ 1.) In Heck, the Supreme Court addressed whether a § 1983 suit was cognizable when it necessarily brought into question the validity of an underlying criminal conviction. In finding that the suit was not cognizable, and that the conviction could only be challenged by a habeas action, the Court noted that the “common-law cause of action for malicious prosecution provides the closest -9- analogy to claims of the type considered here because, unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process.” Heck, 512 U.S. at 484 (emphasis added). The Court then observed that the malicious prosecution tort requires the “termination of the prior criminal proceeding in favor of the accused,” reflective of the concern that otherwise a civil action could be used as “a collateral attack on the conviction . . .” Id. In light of this observation, the Court held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment . . . a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal . . . or called into question by a federal court’s issuance of a writ of habeas corpus.” Id. at 486–87 (internal citations omitted). Plaintiffs argue that this means that the statute of limitations on § 1983 claims does not begin to run until the termination of criminal proceedings. Defendants respond by pointing to Wallace, 127 S. Ct. at 1094, in which the plaintiff sought monetary damages under § 1983 for an arrest that allegedly violated his Fourth Amendment rights. In that case, the plaintiff was arrested, interrogated, and confessed to murder. Id. He unsuccessfully challenged the admissibility of the confession at the trial court, and was convicted. Id. However, the state appellate court found that the arrest did violate his rights; accordingly, his statements were suppressed, the conviction reversed, and the charges against him dropped. Id. He then sued in federal court, seeking monetary damages for false arrest in violation of the Fourth Amendment. The District Court and the Seventh Circuit dismissed plaintiff’s claim as time-barred, finding that his “cause of action accrued at the time of his arrest, and not when his conviction was later set aside.” Id. -10- In considering this issue, the Supreme Court specifically looked at the common law torts of false arrest and false imprisonment, noting that “a false imprisonment ends once the victim becomes held pursuant to [legal] process – when, for example, he is bound over by a magistrate or arraigned on charges.” Id. at 1096 (emphasis in original). Distinguishing false arrest and imprisonment from malicious prosecution, the common law tort relied upon in Heck, the Court emphasized that once a prisoner is held pursuant to legal process, any “unlawful detention forms part of the damages for the ‘entirely distinct’ tort of malicious prosecution” Id. (quoting W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 119, p. 885–86). The Court also made clear that regardless of the pendency of criminal proceedings, the tort of false imprisonment does not end when “the State drop[s] the charges against [the defendant],” but rather when “legal process [is] initiated.” Id. Accordingly, the statute of limitations begins to run from the date of the initiation of legal process. Id. Wallace clarified that the Heck deferred accrual rule “is called into play only when there exists ‘a conviction or sentence that has not been invalidated,’ that is to say, an ‘outstanding criminal judgment.’” Id. at 1097–98 (quoting Heck, 512 U.S. at 487). In short, the Court held that Heck only delays accrual when an actual conviction has been obtained by the state and that conviction would be undermined by the civil action. Id. at 1098 (“What petitioner seeks, in other words, is the adoption of a principle that goes well beyond Heck: that an action which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside. . . . We are not disposed to embrace this bizarre extension of Heck.”) (emphasis in original). The 9 The Wallace Court’s remedy for dealing with a civil suit that involved issues being addressed in pending criminal proceedings was to suggest a stay. Wallace, 127 S. Ct. at 1098 (observing that a court could stay a civil case until the termination of the criminal case if “a plaintiff files a false arrest claim before he has been convicted . . .”). 10 Count 27 is not subject to the MTCA provisions because it alleges a violation of the United States Constitution. See infra § III. -11- Court also dismissed the possibility that a conviction would toll the statute of limitations.9 Id. at 1099–1100 (dismissing the dissent’s argument for equitable tolling). Wallace dictates that these claims be dismissed. As in Wallace, the claims here of unlawful search, seizure, and excessive force are analogous to the common law torts of false arrest and imprisonment, and Wallace makes clear that despite the pendency of criminal proceedings, the statute of limitations on such claims begins to run at the time the legal process is initiated. Here, any search, seizure, or excessive force ended on September 12, 2001, when plaintiffs were brought before the state Commissioner. Any remaining claims form part of a malicious prosecution case. Accordingly, even though plaintiffs’ motion to suppress was not granted for several years, the statute of limitations for these federal claims expired on September 12, 2004. Accordingly, Counts 2, 4, 7, 9, 11, 13, 15, and 17 are dismissed as untimely. II. Compliance with the Maryland Tort Claims Act The only remaining Counts are Counts 23, 24, 25, 26, 27, and 28. Those Counts consist of state common law claims for malicious prosecution, a state constitutional claim for deprivation of property without due process of law, and a federal claim for deprivation of property without due process of law. Defendants argue that all the state claims – which are all of the remaining Counts except for Count 2710 – should be dismissed as untimely in light of plaintiffs’ failure to comply with the Notice of Claim provisions of the Maryland Tort Claims 11 The complaint’s allegations of unduly rough treatment during the arrest and overnight detention are not relevant to the instant issue because the malicious prosecution and deprivation of property claims simply have nothing to do – in time or substance – with the alleged excessive force. -12- Act (“MTCA”), Md. Code Ann. State Gov’t § 12-101 et seq. Plaintiffs counter by arguing that because they are suing defendants in their personal capacity and alleging malice, the MTCA Notice of Claim provisions do not apply. (Pls.’ Opp’n to Defs.’ Mot. to Dismiss at 4.) The MTCA requires that a timely Notice of Claim be filed with the State Treasurer if the plaintiff is suing a state officer, unless the suit sufficiently alleges that the officer acted with malice. See Pope v. Barbre, 935 A.2d 699, 713–19 (Md. 2007) (finding that MTCA notice requirement is not a prerequisite when plaintiff’s complaint “sufficiently alleges malice or gross negligence”) (emphasis in original). Here, plaintiffs’ allegations of malice with respect to the malicious prosecution and deprivation of property claims are insufficient and merely conclusory.11 (See, e.g., Compl. ¶ 287 (“The [defendants’] acts were intentional, wanton, malicious, and oppressive.”); id. ¶ 289 (“Because the allegations by the [defendants] were knowingly false . . .”); id. ¶ 346 (“[Defendant] acted unreasonably and in reckless disregard of the law . . .”); id. ¶ 347 (“[Defendant’s] acts were intentional, wanton, malicious, and oppressive.”); see generally id. Counts 23, 24, 25, 26, and 28.) The conclusory nature of the allegations in Counts 23, 24, 25, 26, and 28, shows that plaintiffs have not pled facts sufficient to give rise to an inference of malice. Compare Elliott v. Kupferman, 473 A.2d 960, 969 (Md. Ct. Spec. App. 1984) (“Merely asserting that an act was done maliciously, or without just cause, or illegally, or for improper motive does not suffice. To overcome a motion raising governmental immunity, the plaintiff must allege with some clarity and precision those facts which make the act malicious.”) with Pope, 935 A.2d at 714–17 12 Because the motion to dismiss with respect to these Counts is granted, I will not rule on the question of the defendants’ right to qualified statutory immunity under Maryland law. However, it appears that the parties agree that defendants are entitled to immunity if the complaint does not plead facts sufficient to support an inference of malice. (See Mem. in Supp. of Defs.’ Mot. to Dismiss at 14–16.; Pls.’ Opp’n to Defs.’ Mot. to Dismiss at 5–11.) Because I find insufficient facts to support an inference of malice with respect to the MTCA Notice of Claim question, it appears likely I would find that these defendants have statutory immunity for the same reason. -13- (examining pleadings and finding sufficient facts for an inference of malice). Moreover, regardless of the pleadings, it is perfectly apparent that the facts underlying this suit do not show malice; while the plaintiffs legitimately dispute the legality of the traffic stop, such a dispute does not, without more, support an inference of malice. Accordingly, the MTCA Notice of Claim provisions apply and it is undisputed that plaintiffs never filed a notice with the State Treasurer. (See Defs.’ Ex. D.) Defendants’ motion to dismiss Counts 23, 24, 25, 26, and 28 on this basis is granted.12 III. The Inapplicability of the Fifth Amendment to State Defendants Count 27 alleges that defendant Johnston violated the Fifth Amendment when he participated in the handgun forfeiture proceeding. (See Compl. ¶¶ 331–340.) However, as defendants point out, the Fifth Amendment applies only to the federal government, and defendant Johnston is a state employee. See Freilich v. Bd. of Dirs. of Upper Chesapeake Health, Inc., 142 F. Supp. 2d 679, 691 (D. Md. 2001) (“As an initial matter, [plaintiff’s] claim that [defendants] violate[] her right[]s . . . under the Fifth Amendment must be dismissed . . . because the Fifth Amendment restricts only actions of the federal government . . .”). Plaintiffs tacitly acknowledge this mistake, and seek to amend the Complaint to substitute the Fourteenth Amendment for the Fifth Amendment. (Pls.’ Opp’n to Defs.’ Mot. to Dismiss at 11.) In light of the technical nature of defendants’ objection here, as well as the pro se status of the plaintiffs, I would normally consider the Complaint amended, and deny the motion to dismiss on this basis. -14- However, such an amendment would be futile, as Count 27 – amended or not – clearly fails to state a claim upon which relief can be granted. Plaintiffs’ basic objection is to the result of the state’s handgun forfeiture proceeding. But plaintiffs have already challenged the forfeiture in state court, and lost. (See Defs.’ Ex. C.) The Rooker-Feldman doctrine makes clear that, in situations such as this, federal district courts are not to sit as appellate courts reviewing state court rulings. See generally Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (“The Rooker-Feldman doctrine, we hold today, is confined to cases . . . brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.”); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Moreover, the state administrative proceeding itself provided plaintiffs with due process, and defendant Johnston’s mere participation in the proceeding, duly governed by state law, does not give rise to a takings claim against him. Accordingly, defendants’ motion to dismiss Count 27 is granted. CONCLUSION For the reasons outlined above, defendants’ motion to dismiss is granted. In particular, Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18, are dismissed because the statute of limitations on those claims expired before this suit was filed. See supra § I. Additionally, Counts 23, 24, 25, 26, and 28, are dismissed in light of plaintiffs’ failure to comply with the MTCA. See supra § II. Finally, defendants’ motion to dismiss Count 27 is granted. See supra § III. -15- Date: February 25, 2008 /s/ J. Frederick Motz United States District Judge -16- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BRAD LEE BARNHILL * CATHERINE NICOLE DONKERS * Plaintiffs, * * v. * Civil No. JFM 07-1678 * CHARLES P. STRONG, JR., et al. * Defendants. * * ***** ORDER For the reasons stated in the accompanying memorandum opinion, it is, this 25th day of February 2008 ORDERED 1. The motion to dismiss filed by defendants Randall K. Barnes, Debra S. Hamby, Robert O. Fraley, David Wayne Smith, and Greg Johnston is granted; 2. All claims against the moving defendants are dismissed; 3. All prior rulings made by this court are incorporated herein; and 4. This action is dismissed in its entirety. /s/ J. Frederick Motz United States District Judge

Concerted Action Theory in Products Liability Cases

1The two motions are the Motion to Dismiss the Complaint for Failure to Identify the Product Manufacturer [Paper No. 85] and the Motion to Dismiss the Complaint Based Upon Failure to Identify the Manufacturer [Paper No. 86]. 2The proposed class consists of all persons who own and occupy single-family residential dwelling units situated within the State of Maryland which were constructed no later than 1978 and which either did or do contain lead paint. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND EARL COFIELD, et al. * Plaintiffs * vs. * CIVIL ACTION NO. MJG-99- 3277 LEAD INDUSTRIES ASSOCIATION, * INC., et al. * Defendants * * * * * * * * * MEMORANDUM AND ORDER RE MOTIONS TO DISMISS THE COMPLAINT BASED UPON FAILURE TO IDENTIFY THE PRODUCT MANUFACTURER The Court has before it the Defendants' Motions to Dismiss the Complaint Based Upon Failure to Identify the Product Manufacturer1 and the materials submitted by the parties relating thereto. The Court has held a hearing and has had the benefit of the arguments of counsel. I. INTRODUCTION A. Factual Background Six Plaintiffs filed this proposed class action2 against 2 various trade associations and lead-related corporations. Plaintiffs claim that their homes are contaminated and diminished in value by lead paint which the Plaintiffs contend is or was present on the interior and exterior of their properties. Plaintiffs allege that each Defendant, or its predecessor in interest, "produced, mined, marketed, promoted, designed and/or manufactured its own lead products and promulgated, supported and/or promoted the production, marketing, designing and the manufacturing of the other defendants' lead products." First Am. Compl. at p. 18-26 ¶¶ 32-45. The "gravamen of the action" is that the Defendants "acted in concert, implemented their conspiracy and aided and abetted the fraudulent scheme which perpetuated and either constituted or materially contributed to the production, manufacture, design, promotion, marketing, sale, distribution and use of toxic and ultrahazardous lead products." Id. at p. 16 ¶ 28. This conspiracy is alleged to have occurred "during the period prior to 1978." Id. at p. 37 ¶ 87. Plaintiffs seek monetary damages and declaratory and equitable relief in connection with the abatement of the lead paint hazard in their homes. The First Amended Complaint does not specify the specific circumstances surrounding any of the Plaintiff's property damage; what type of lead paint was applied to the properties; 3 who made or sold the lead pigment or lead paint that was applied to the properties; or when the products were made, sold or applied. B. Procedural Background Plaintiffs initially filed this action in the Circuit Court for Baltimore City on September 20, 1999. Plaintiffs filed their First Amended Complaint the following day. Plaintiffs assert the following claims: COUNT I Negligent Product Design COUNT II Negligent Failure to Warn COUNT III Supplier Negligence COUNT IV Strict Products Liability/Defective Design COUNT V Strict Products Liability/Failure to Warn COUNT VI Nuisance COUNT VII Indemnification COUNT VIII Fraud and Deceit COUNT IX Conspiracy COUNT X Concert of Action COUNT XI Aiding and Abetting COUNT XII Enterprise Liability Defendants removed the case to this Court, and on March 15, 2000, this Court issued a decision retaining jurisdiction 3This claim remains pending insofar as it pertains to lead paint. 4This claim also remains pending insofar as it pertains to lead paint. 4 over the lawsuit. By separate Order issued this date, the Court has dismissed Plaintiffs' claims for Negligent Product Design as to lead pigment3 (Count I), Strict Products Liability/Defective Design as to lead pigment4 (Count IV), Nuisance (Count VI), Indemnification (Count VII) and Fraud and Deceit (Count VIII). The instant Motion is based upon each Plaintiff's failure to identify the product manufacturer responsible for their specific injuries. II. LEGAL STANDARD The Court must deny a Motion to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure unless it "appears beyond doubt that Plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99 (1957). "The question is whether in the light most favorable to the Plaintiff, and with every doubt resolved in his behalf, the Complaint states any valid claim for relief." Wright & Miller, Federal Practice and Procedure: Civil 2d, § 1357, at 5 336. The Court, when deciding a motion to dismiss, must consider well-pled allegations in a complaint as true and must construe those allegations in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969). The Court must further disregard the contrary allegations of the opposing party. A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir. 1969). III. DISCUSSION Defendants allege that the Plaintiffs' failure to identify the particular manufacturer of the lead paint which is present on their individual homes is fatal to all of the Plaintiffs' claims under Maryland law. Defendants contend that the Maryland courts have universally required a plaintiff to identify a specific tortfeasor, and that Plaintiffs' inability to establish which manufacturer is directly responsible for each individual Plaintiffs' particular injury warrants dismissal of the entire First Amended Complaint. At a general level, it is beyond dispute that, as Defendants contend, proximate cause is a requirement in any tort action. E.g., Medical Mutual Liability Soc'y of Maryland v. B. Dixon Evander and Associates, Inc., 660 A.2d 433, 439 5Although Defendants cite this case correctly for the general proposition for which it stands, it does not address any of the issues presented by the case at Bar in a meaningful fashion. Rather, the case dealt with an insurance broker's allegation that defamatory statements contained in a letter issued by an insurer which had rightfully terminated its broker arrangement caused damage to the broker's existing business relationships. Medical Mutual, 660 A.2d at 435. The Court rejected the broker's tortious interference with business relationship claim based upon the broker's inability to prove that his it was more likely that the broker's damages had been caused by the defamatory statements rather than the termination of the business relationship. Id. at 440-41. The problem, therefore, was the proof presented, and the case involved a choice between two unconnected causes, one of which was allegedly tortious and the other of which was clearly not. 6Fennell, like Medical Mutual, is correctly cited by Defendants for a broad principle of tort law, that is, that proximate cause is a required element in any tort action, but addresses the question of causation in a context that is completely different from the case at Bar. The cited portion of Fennell involved the recognition of a "new tort allowing full recovery for causing death by causing a loss of less than 50% chance of survival." Fennell, 580 A.2d at 211. In this context, the Maryland Court of Appeals stated, in dicta, that it was "unwilling to relax traditional rules of causation" to recognize that particular tort. Id. 6 (Md. 1995).5 A plaintiff in a tort action must prove, by a preponderance of the evidence, that the alleged tortious injury is the cause of plaintiffs' injury. E.g., Fennell v. Southern Maryland Hosp. Center, Inc., 580 A.2d 206, 211 (1990).6 The Maryland Court of Special Appeals has also stated, in a traditional products liability case, that the plaintiff must plead and prove "the attribution of the defect to the seller." Jensen v. American Motors Corp., 437 A.2d 242, 247 (Md. Ct. Spec. App. 1981). 7In the context of the instant motions to dismiss, the Court must disregard the contrary allegations made by the Defendants. Chell, 412 F.2d at 715. 7 The First Amended Complaint in the instant lawsuit, however, presents detailed allegations of a scheme on the part of the Defendants to conceal the hazards associated with their lead products, with the ultimate goal of perpetuating the use of lead paint in residential properties. When viewed in this fashion, it presents something entirely different from the traditional tort or product liability action to which the general rules acknowledged above have been rigidly applied. The Plaintiffs in this action allege a common plan followed by the lead pigment manufacturers. Plaintiffs claim7 that they have sued all, or at least practically all, of those lead pigment manufacturers in this action, and that each of the Defendants was a member of the conspiracy. Under the Plaintiffs' theory, the lead pigment contained in the lead paint which is, or was, present on each of the plaintiff's homes was necessarily manufactured by one of the members of the conspiracy. Plaintiffs claim that they are not required to prove which conspirator's pigment or paint it was, provided that they can establish the underlying wrongful act and that the tortious act was within the scope of the conspiracy. Under this line of reasoning, as long as the First Amended 8 Complaint adequately pleads the commission of a single underlying tort by a conspirator within the scope of the conspiracy, the Plaintiffs have a viable claim against each of the Defendants whom they can hold liable as a co-conspirator. The idea that individuals who join together to perform an unlawful act can be held jointly liable for the damages caused by the act is hardly new to tort law. See Prosser and Keeton on the Law of Torts (5th Ed. 1984) § 46 at 322-23 and cases cited therein; Prosser, Joint Torts and Several Liability, 25 Calif. L. Rev. 413 (1937). In imposing joint liability in a case of group assault, an early English court reasoned that " . . . [with] all coming to do an unlawful act, and of one party, the act of one is the act of all . . . ." Sir John Heydon's Case, 77 Eng. Rep. 1150 (1613). Throughout the development of tort law, in Maryland and elsewhere, joint tortfeasors have been held liable for the actions of others with whom they acted in concert, and courts have, at least on occasion, recognized the need to permit plaintiffs to proceed where they cannot establish a causal connection between their injuries and a particular tortfeasor. See Restatement (Second) of Torts § 433B(2)-(3). In a products liability case concerning the blasting cap industry, Judge Weinstein of the United States District Court for the Eastern District of New York discussed the problems 8Because of complex choice of law problems involved in the case, Judge Weinstein "assumed the existence of a national body of state tort law," and considered cases from across the nation. 345 F. Supp. at 360. 9 faced by Plaintiffs who seek to hold manufacturers of a product liable based upon theories of joint liability. See Hall v. E.I. Du Pont De Nemours & Co., Inc., 345 F. Supp. 353 (E.D.N.Y. 1972). Drawing from the law of many jurisdictions,8 Judge Weinstein noted that joint liability had historically been imposed when a group of actors exercises joint control over a risk of harm. Id. at 371. In such a case, the courts will: Impose joint liability on groups whose actions create unreasonable hazards of risks of harm, even though only one member of the group may have been the "direct" or physical cause of the injury. Where courts perceive a clear joint control of risk . . . the issue of who "caused" the injury is distinctly secondary to the fact that the group engaged in joint hazardous conduct. Id. at 372. Under this analysis, joint liability may be shown where, as Plaintiffs allege here, there is an explicit agreement and joint action among the defendants with regard to warnings and other safety features. Id. at 373. The Maryland cases relied upon by the Defendants for the proposition that a plaintiff must plead and prove the identity of a specific manufacturer do not address the serious question which is presented by the case at Bar, and are unhelpful to a 9See, e.g., Owens-Illinois, Inc. v. Zenobia, 602 A.2d 1182, 1184 (Md. 1992) (requiring the identification of a particular manufacturer for recovery against that manufacturer where plaintiff did not allege a conspiracy and failed to establish exposure to that defendant's product); Nissen Corp. v. Miller, 594 A.2d 564, 570-71 (Md. 1991) (addressing the requirement of a causal relationship between a defendant's act and the plaintiff's injury in the successor liability context); Owens-Corning v. Walatka, 725 A.2d 579, 593 (Md. Ct. Spec. App. 1999) (under "proximity, frequency and regularity" test applicable to asbestos personal injury actions, in order to recover against a specific manufacturer, plaintiff must show that he was exposed to that manufacturer's product); Jensen v. American Motors Corp., 437 A.2d 242, 247 (Md. Ct. Spec. App. 1981) (affirming judgment for single defendant auto manufacturer where plaintiff failed to prove that the car was defective or that any defect was the cause of the plaintiff's accident); Undeck v. Consumer's Discount Supermarket, Inc., 349 A.2d 635, 637 (Md. Ct. Spec. App. 1975) (affirming directed verdict in favor of product manufacturer where there was no proof regarding the identity of any potential manufacturer and no apparent allegation of conspiracy or joint liability). 10See, e.g. Orkin v. Holy Cross Hosp. of Silver Spring, Inc., 569 A.2d 207, 210 (Md. 1990) (in a medical malpractice action against surgeon and anesthesiologist, refusing to address the question of whether the plaintiff's inability to identify which of two defendants caused her injuries required summary judgment because the trial court had not considered the issue; acknowledging that some courts have fashioned a remedy for plaintiffs under circumstances similar to those involved in that case); Fennell, supra note 2. 10 meaningful analysis of the theories presented by this lawsuit.9 Several of the Maryland cases relied upon by Defendants do not even address the issue of causation or identification at all, or do so entirely in dicta.10 The Court must therefore consider whether there is any possibility that the Maryland Court of Appeals would allow the Plaintiffs 11 to proceed on any of the collective action theories alleged in the First Amended Complaint, which include concert of action, enterprise liability, conspiracy, and aiding and abetting. A. Concert of Action and Enterprise Liability Defendants correctly assert that several federal courts applying Maryland law have previously rejected concert of action and enterprise liability in products liability actions where the plaintiffs have been unable to establish that a particular defendant was responsible for causing their individual injury. See Tidler v. Eli Lilly & Co., 851 F.2d 418 (D.C. Cor. 1988); Herlihy v. Ply-Gen Industries, Inc., 752 F. Supp. 1282 (D. Md. 1990); Lee v. Baxter Healthcare Corp., 721 F. Supp. 89 (D. Md. 1989), aff'd mem., 898 F.2d 149, 1990 WL 27325 (4th Cir. 1990). Defendants argue that these cases establish that the Maryland courts do not recognize concert of action or enterprise liability, and preclude Plaintiffs from recovering against the Defendants under a concert of action or enterprise liability theory. Plaintiffs point to the case of Ford Motor Corp. v. Wood, 703 A.2d 1315 (Md. Ct. Spec. App. 1998) as a signal that the Maryland courts would allow their concert of action theory to proceed. In Wood, the Maryland Court of Special Appeals suggested that concert of action might allow the imposition of 11In addition, the Wood court distinguished all of the cases which had been cited by the plaintiff in support of her concert of action claim on the basis that in the cited cases, the plaintiff was injured by an identified manufacturer's product. Id. at 1332-33 (citing Bich v. General Elec. Co., 614 P.2d 1323 (Wash. Ct. App. 1980); Steward v. Scott-Kitz Miller Co., 626 P.2d 329 (Okla. Ct. App. 1981); Krutsch v. Walter Collin GmBh, 495 N.W.2d 208 (Minn. Ct. App. 1993)). 12 liability upon an assembler for a component which he did not manufacture on the basis that the assembler "engaged in a concerted action with others to market, distribute and conceal the dangers of the defective component." Id. at 1332. However, the Wood court stated that the concert of action theory requires affirmative conduct "linked to the specific product that caused the plaintiff's injuries."11 Id. (emphasis in original). As Defendants point out, even in jurisdictions where the concert of action theory has been adopted, a plaintiff is required to identify the specific manufacturer who produced the product which caused the plaintiff's injury. See, e.g., Hurt v. Philadelphia Housing Authority, 806 F. Supp. 515, 531- 32 (E.D. Pa. 1992); Santiago v. Sherwin Williams Co., 794 F. Supp. 29, 32-22 (D. Mass. 1992); Skipworth v. Lead Industries Ass'n, 960 A.2d 169, 175-76 (Pa. 1997). The only case cited by the Plaintiffs which indicates to the contrary is Marshall v. Celotex, 652 F. Supp. 1581 (E.D. Mich. 1987), in which the United States District Court for the Eastern District of 12Defendants contend that the Marshall court later "reversed itself," citing Marshall v. Celotex Corp., 691 F. Supp. 1045, 1047 (E.D. Mich. 1988). An examination of the subsequent opinion reveals that the court did no such thing. In the earlier decision, the Court refused to grant the defendants' motion for summary judgment on the concert of action claim, which had been premised upon the plaintiff's inability to identify the product manufacturer. 652 F. Supp. at 1582. The Court determined that the claim should proceed to trial; however on the morning of trial, the plaintiff admitted that she would be unable to introduce evidence that even one of the defendants had supplied the asbestoscontaining products which caused the injury. 691 F. Supp. at 1046. By that point, only four defendants remained in the action. Id. at 1048. While still acknowledging that, "[u]nder the concert of action theory identification of the tortfeasor who is the cause in fact of the injury is secondary," the court concluded that concert of action could only be applied where (1) the plaintiff could establish identification of the tortfeasor, or (2) the plaintiff had joined a large enough group of manufacturers so as to find 13 Michigan refused to dismiss a concert of action claim against asbestos manufacturers, notwithstanding the plaintiff's inability to establish which manufacturer's product he had been exposed to. Id. at 1582. The Marshall court stated: The [defendants'] motion presents a difficult causation issue. Defendants' logic is forceful: without an identification requirement, each manufacturer of asbestos products becomes an insurer for all manufacturers of the products. But the equity of plaintiff's position is compelling: if manufacturers cooperate to conceal product risk, and if the concealed risk subsequently causes injury, justice demands a remedy. The concert of action theory rests upon this equity to justify joint and several liability against any manufacturer that substantially contributes to an injury by coordinating activity with other manufacturers to conceal information. Id. (footnote and citations omitted);12 see also Hall, 345 F. that "a majority" of the industry was present before the court. Id. (emphasis added); see Abel v. Eli Lilly & Co., 343 N.W.2d 164 (Mich. 1984); Cousineau v. Ford Motor Co., 363 N.W.2d 721 (Mich. Ct. App. 1985); Hall, 345 F. Supp. at 358. This is precisely what the Plaintiffs in the case at Bar allege that they have done. See First Am. Compl. ¶¶ 73, 368, 379. 13Plaintiffs cite to Bartholomee v. Casey, 651 A.2d 908, 918-19 (Md. Ct. Spec. App. 1994) and Thodos v. Bland, 542 A.2d 1307, 1315 (Md. Ct. Spec. App. 1988) as signaling a trend in the Maryland decisions toward relaxing the traditional causation requirements. These cases, however, deal with the alternative liability theory, as opposed to the concert of action or enterprise liability theories. Although these cases might provide a persuasive reason for denial of a motion to dismiss an alternative liability claim, they do not suggest that the Maryland courts would allow the Plaintiffs to proceed on concert of action or enterprise liability. The Court does note that the Plaintiffs have included an alternative 14 Supp. at 370-80. The undersigned finds the reasoning of the Marshall decision compelling. However, in light of the language contained in the Maryland Court of Special Appeals' decision in Wood, which indicates that the identity of the product manufacturer would have to be established in Maryland under a concert of action theory, the Court finds it unlikely that the Maryland courts would follow the Marshall decision and allow a concert of action theory to proceed where the plaintiff was unable to prove the identity of the product manufacturer which caused his or her injuries. Plaintiffs have presented no case which indicates that the Maryland Court of Appeals would allow their claim premised upon enterprise liability to remain.13 liability claim in their proposed Second Amended Complaint; however the Court is herein addressing only the allegations contained in the First Amended Complaint, which includes no alternative liability claim. 14This distinguishes civil conspiracy and civil aiding and abetting from their counterparts under criminal law. Under criminal law, both conspiracy and aiding and abetting are independent crimes, and they are committed at the time of the parties' agreement. 15 B. Conspiracy and Aiding and Abetting Defendants argue that the Plaintiffs' inability to establish which manufacturer's paint is, or was, present in their homes is fatal to their claims of civil conspiracy and aiding and abetting. As Defendants correctly point out, it is well established that under Maryland law, neither civil conspiracy nor civil aider and abettor liability may be found without proof of an underlying tortious act, and that neither is an independent tort.14 E.g., Alleco, Inc. v. The Harry & Jeannette Weinberg Foundation, Inc., 665 A.2d 1038, 1044-45, 1050 (Md. 1995). Nevertheless, it is equally clear that Maryland recognizes both civil conspiracy and civil aiding and abetting as means to impose liability for underlying torts. Id. A civil conspiracy is "a combination of two or more persons by an agreement or understanding to accomplish an unlawful act . . . with the further requirement that the act or the means must result in damages to the plaintiff." Green 15In the Motion that is the subject of the instant Memorandum and Order, the defendants do not challenge the conspiracy and aiding and abetting allegations of the First Amended Complaint on any ground other than the failure to identify the product manufacturer. 16 v. Washington Suburban Sanitary Comm'n, 269 A.2d 815, 824 (Md. 1970). Any member of the conspiracy may be held liable for acts performed within the scope of the conspiracy. Under Maryland law, "[a] person may be held [civilly] liable as a principal for [a tort] if he, by any means, encouraged, incited, aided or abetted the act of the direct perpetrator of the tort." Duke v. Feldman, 226 A.2d 345, 347 (Md. 1967). The terms "aid" and "abet" have the same meaning under civil and criminal law, and in both contexts, are defined according to "common parlance." Id. (citing Seward v. State, 118 A.2d 505, 507 (Md. 1955). Thus, an "aider" is one who "assist[s], support[s] or supplement[s] the efforts of another." Seward, 118 A.2d at 507. An "abettor" is "one who instigates, advises or encourages the commission of a[n unlawful act]." Id. Defendants contend that the Maryland decisions uniformly require the identification of a direct perpetrator of the underlying tort before civil conspiracy or aider and abettor liability may be imposed.15 Alleco, 665 A.2d at 1045 (stating that "[o]ne of the requirements for tort liability as an aider and abettor is that there be a direct perpetrator of the 16Defendants point out that other courts are in agreement that "a civil conspiracy plaintiff must prove that someone in the conspiracy committed a tortious act that proximately caused his injury." Beck v. Prupis, 162 F.3d 1090, 1098 n.18 (11th Cir. 1998) (emphasis added). Neither the Plaintiffs nor this Court would suggest that the Plaintiffs need not prove that someone in the conspiracy committed a tortious act within the scope of the conspiracy. See Alleco, 665 A.2d at 1045; Kimball v. Harman and Burch, 34 Md. 407, 409-11 (1871). However, none of the cases cited by the Defendants stand for the proposition that the "someone" must be identified; they simply state that he must be a member of the conspiracy, acting within the scope of the conspiracy. 17 tort."); Alexander Inc. v. B. Dixon Evander & Associates, Inc., 650 A.2d 260, 265 n.8 (Md. 1994); see In re Orthopedic Bone Screw Products Liability Lit., 193 F.3d 781, 789 (3rd Cir. 1999). When read in their entirety, however, these decisions simply re-state the general rule that there can be no tort liability for civil conspiracy or aiding and abetting absent proof of the underlying tort, a proposition which Plaintiffs do not, and could not, contest. Although the commission of any underlying tort undisputably requires a perpetrator, none of the decisions cited by Defendants even address the issue of whether that perpetrator needs to be identified, as distinct from being established to be a member of the conspiracy.16 Accordingly, none of the cited cases can be considered as holding, without limitation, that the failure 17Contrary to Defendants' suggestion, Ryan v. Eli Lilly & Co., 514 F. Supp. 1004 (D.S.C. 1981), which involved DES, does not compel a different conclusion. In that case, the Defendants were merely "seven of the one-hundred eighteen companies manufacturing or distributing DES [at the time of plaintiff's injuries.]" Id. at 1007. Admittedly, the Ryan court noted the plaintiff's inability to identify the manufacturer of the DES which her mother ingested, and found this failure of proof to be one of many reasons justifying dismissal of the conspiracy claim. However, the undersigned Judge is of the opinion that the portions of the Ryan opinion relied upon by the Defendants analyze the issue of manufacturer identification on a superficial level, and there is no indication that the Ryan court analyzed the issue in the way that this Court sees it. Moreover, the plaintiff in Ryan was unable to establish the existence of a conspiracy at all, which provided a much more compelling reason for dismissing her claim, and makes it unlikely that the manufacturer identification issue was given as much attention as it deserves in the instant lawsuit. 18The Court notes that the claims for lead pigment defective design, fraud, nuisance and indemnification have been dismissed. Accordingly, these causes of action cannot constitute the underlying tort for conspiracy or aiding and abetting. However, there is no reason why Plaintiffs' lead paint defective design and lead pigment and lead paint failure to warn claims, which have not been independently challenged, would not satisfy the requirement that there be an underlying tort. 18 to allege the precise identity of the perpetrator is fatal to a claim for civil conspiracy or civil aiding and abetting.17 The First Amended Complaint alleges a common plan among all of the Defendants to market lead paint for use in residential properties, including marketing and selling lead pigment and lead paint without adequate warnings.18 Plaintiffs claim that the alleged conspirators, including the lead pigment manufacturers sued in this action, collectively produced and 19Again, in the current procedural context, the Court must disregard Defendants' contrary allegations. Chell, 412 F.2d at 715. 19 marketed all (or practically all) of the lead pigments used in lead paint.19 First Am. Compl. p. 34 ¶ 73, p. 121 ¶ 368, p. 123 ¶ 379. Plaintiffs allege that the Defendants agreed to engage in tortious activities regarding lead paint and lead pigment, including marketing and promoting lead products without warnings concerning the dangers associated with exposing children to lead. Id. at p. 119 ¶¶ 360-61; p. 123 ¶¶ 377-78. The First Amended Complaint contains detailed allegations concerning specific actions taken by all Defendants, individually, collectively, and through trade associations which they were members of, in furtherance of their agreement. Id. at ¶¶ 169-286. As explained above, when viewed in the light most favorable to the Plaintiffs, the conspiracy and aiding and abetting theories present a claim that each Plaintiff's home contains lead pigment which was manufactured by one of the members of the alleged conspiracy and was placed on the Plaintiff's home as a result of one or more tortious acts which is alleged to have been done in furtherance of the conspiracy. The instant case presents a situation materially different from 20 those considered in any of the any of the precedents relied upon by the Defendants or discovered by the Court. Following a thorough examination of the authorities relied upon by the Defendants, the Court concludes that the issue is not nearly as simple as Defendants contend. Rather, the Court finds that this case presents difficult and novel questions of Maryland law, for which there is no clear answer. See Orkin, 569 A.2d at 210 ("the problem of multiple defendant liability . . . is both difficult and interesting."). Given the novel questions of state law presented by this case, the Court is unwilling to reject the Plaintiffs' conspiracy and aiding and abetting theories, particularly at the dismissal stage. As the record develops further, it may become clear that Plaintiffs' collective liability claims lack evidentiary support. However, this is a case in which further development of the record is necessary prior to a final ruling on the legal questions presented. Of course, Plaintiffs will have to bear a heavy burden to prevail on their conspiracy theory. They will have to establish that each of the Defendants agreed to accomplish the tortious acts alleged in the First Amended Complaint; that the underlying tortious acts were performed by a member of the conspiracy, within the scope of the conspiracy; and that those 20This Court is not now deciding whether the Plaintiffs would have to establish that the Defendants produced all, or "practically all" of the lead pigment which was sold during the relevant time period, or whether they merely must prove that, more likely than not, the underlying tort was committed by a conspirator. See Marshall, 691 F. Supp. at 1048. 21 tortious acts proximately caused the damages claimed by the Plaintiffs. To succeed on their aiding and abetting theory, the Plaintiffs will have to prove that the Defendants committed tortious acts and will have to establish a causal relationship between those tortious acts and their damages. Additionally, Plaintiffs will be required to show that each Defendant either (1) assisted, supported or supplemented the tortious acts committed by a member of the conspiracy, or (2) instigated, advised or encouraged the commission of the tortious acts by a member of the conspiracy. Defendants' contentions regarding the existence of other lead pigment manufacturers may well be relevant at later stages of this litigation.20 However, in light of the allegations in the First Amended Complaint, Defendants' contrary factual assertions must be ignored in the current procedural context. In sum, the Motions to Dismiss the First Amended Complaint shall be denied. In view of the existence of serious unresolved state law issues, the denial of the instant motions is, expressly, without prejudice. By separate order, this case 22 is being remanded to the Circuit Court for Baltimore City. On remand, the State Court judge may well decide to reconsider this Court's ruling. IV. CONCLUSION For the foregoing reasons, Defendants' Motions to Dismiss the Complaint Based Upon Failure to Identify the Manufacturer [Paper Nos. 85 and 86] are DENIED WITHOUT PREJUDICE. SO ORDERED this 17th day of August, 2000. ______________________________ Marvin J. Garbis United States District Judge