No. 516 & No. 1870, September Term, 2007,

filed October 29, 2008. Opinion by Hollander, J.

 

Facts: A tenant brought a negligence action against his landlord for injuries he sustained while attempting to escape from a fire set by an arsonist in the entry area of the apartment building. The owner conceded, for purposes of the motion, that it did not provide the egress that was required by a local fire safety code. The Circuit Court for Prince George’s County granted summary judgment in favor of the owner of the building, based on its conclusion that the landlord had no duty to protect against arson.

 

Holding: Reversed and remanded. The Circuit Court erred in granting summary judgment. The landlord had a duty to comply with the fire safety code, so as to minimize danger to its tenants from fires that might occur, regardless of their cause. The risk of fire is foreseeable.

 

 

No. 4, September Term, 2008. 

Opinion filed on November 5, 2008, by Greene, J.

 

Facts: In August of 2000, Sherri Schaefer visited her gynecologist, Melissa Moen, M.D., and informed Dr. Moen that she was experiencing abnormal vaginal bleeding. It is alleged that Dr. Moen ordered a transabdominal and transvaginal pelvic ultrasound to aid her in determining the cause of the bleeding, but failed to perform an endometrial biopsy at that time. The ultrasound was performed on September 11, 2000, and subsequently interpreted by radiologist, Paula DeCandido, M.D. When interpreting the ultrasound, Dr. DeCandido failed to report a 1.5 centimeter mass located on Ms. Schaefer’s right ovary. Ms. Schaefer was later diagnosed with cancer and ultimately died from this disease.

 

The Circuit Court for Anne Arundel County granted The Medical Providers’ motions to strike the experts’ affidavits pursuant to Md. Rule 2-501(e), Contradictory Affidavits or Statements. Upon striking the affidavits, the Circuit Court granted The Medical Providers’ motion for summary judgment, concluding that Marcantonio had failed to provide sufficient evidence that The Medical Providers’ negligence proximately caused Ms. Schaefer’s death. The Court of Special Appeals affirmed the judgment of the Circuit Court concluding that the experts’ affidavits contained material contradictions in violation of Rule 2-501(e).

 

Holding:   Judgment of the Court of Special Appeals reversed. The experts’ affidavits do not contain material contradictions in violation of Md. Rule 2-501(e). Rule 2-501(e) does not define “material contradiction,” and thus, we interpret the terms as they are ordinarily and popularly understood in the English language. Accordingly, a material contradiction under 2-501(e) is a factual assertion that is significantly irreconcilable with, or contradictory to, the affiant’s previous sworn statement.

                                   

Interpreting the term “material contradiction” to apply to irreconcilable statements of material fact comports with and furthers the purpose of the Maryland summary judgment procedure. Such an interpretation ensures that subsection (e) is utilized to strike affidavits that contain factual assertions that are not genuine. Because we determine that the Circuit Court incorrectly struck the affidavits of Drs. Shmookler and Hutchins, we hold that the court erroneously entered summary judgment on the basis that the Marcantonios failed to establish sufficient evidence of proximate cause.

 

 

No. 134, September Term 2007, filed September 4, 2008. 

Opinion by Battaglia, J.   

 

Facts: Ellen Crews, a type I diabetic, took a combination of insulin medications and while driving, struck an automobile driven by Isaac Gourdine, who died. Petitioner, Mary Gourdine, the wife of Isaac Gourdine, individually, and as Personal Representative of the Estate of Mr. Gourdine, and as Next Friend of Monica J. Gourdine and Lamar T. Gourdine, filed suit against Respondent, Eli Lilly and Company (“Lilly”), the manufacturer of the insulin medications taken by Ms. Crews, alleging fraud, negligence and strict liability for failure to warn of known concealed defects.

 

The Circuit Court for Prince George’s County, after a hearing on the matter, granted Lilly’s motion for summary judgment and subsequently filed a memorandum opinion in which he determined that, “Plaintiffs have not raised any disputes as to material facts, and Defendant, Eli Lilly is entitled to judgment as a matter of law, because Eli Lilly did not owe a duty to Mr. Gourdine, and because Plaintiffs’ failure to warn claim is pre-empted by federal law.” The judge stated that “the issue is what duty is owed the public by a drug manufacturer in a failure to warn case,” and concluded that under the “learned intermediary” doctrine, no duty is owed to a non-patient.

 

The intermediate appellate court concluded that the trial court did not err in granting Lilly’s motion for summary judgment because “[Lilly] has no duty to warn a nonuser such as Gourdine” under the “learned intermediary” doctrine. The Court also opined that even if Lilly’s warnings were inadequate, the injuries to Mr. Gourdine were not foreseeable.

 

Holding:   The Court of Appeals affirmed and concluded that Lilly did not owe the requisite duty to Mr. Gourdine to sustain the negligence, strict liability and fraud claims asserted in the instant case, and thus, that the Circuit Court did not err in granting summary judgment in favor of Lilly. The Court noted the divergence in its analysis from that of the trial court and the Court of Special Appeals, because both relied on the “learned intermediary” doctrine, which the Court of Appeals has not adopted. The Court’s analysis first focused on the notion of duty under common law and concluded that to impose the requested duty from Lilly to Mr. Gourdine would expand traditional tort concepts beyond manageable bounds, because such a duty could apply to all individuals who could have been affected by Ms. Crews after her ingestion of the drugs. The Court also noted that there was no direct connection between the drugs and accompanying warnings and the decedent and that the Court has historically not embraced the belief that duty should be defined mainly with regard to foreseeability, without regard to the size of the group to which the duty would be owed.

 

 

No. 897, September Term, 2007, filed October 7, 2008. 

Opinion by Eyler, Deborah S., J. 

 

Facts: In 2004, the Zitterbarts purchased a demo model 2004 Suzuki Verona from an authorized dealership. The vehicle had slightly fewer than 5,000 miles and was covered by a 36-month/36,000 mile New Vehicle Limited Warranty, as well as an 84-month/100,000 mile Limited Powertrain Warranty.   Beginning in November 2004 and continuing through July 2005, the Zitterbarts had the vehicle serviced seven times at the dealership. Among the problems they cited (in addition to routine maintenance) were intermittent triggering of the “Check Engine” light, rough idle and engine operation, excessive RPM variation and “hesitation and loss of power.”  Eleven months later, the oxygen sensor was replaced. There were no other service records.

 

The Court granted summary judgment for the Defendant Suzuki on all counts.

 

Holding:   The Court of Special Appeals affirmed the judgment below. Because the Plaintiffs failed to forecast expert testimony to support their contention that the vehicle suffered from a “hesitation problem,” and because their own expert testified unequivocally that, when he examined and test-drove the vehicle in February 2007 “the vehicle’s powertrain system appeared to be operating as designed,” they did not satisfy their burden of production on the Lemon Law claim. The Zitterbrats could not prevail on their demand for the replacement/repurchase remedy under CL § 14-1502(c) because they forecasted no evidence that the vehicle continued to have an uncorrectable defect that substantially impaired its use and market value. They likewise forecasted no evidence to support their claim under CL § 14-1502(b) (correction remedy), because there was no evidence that the dealership had ever failed to correct an alleged defect within the statutory 30-day notice period.

 

Because the MCPA claim is derivative of the Lemon Law claim, the Circuit Court properly dismissed the MCPA claim. The Magnuson-Moss claim likewise could not withstand summary judgment. Because the Plaintiffs were the beneficiaries of a limited rather than a full warranty, the Circuit Court correctly ruled that the Plaintiffs’ Magnuson-Moss claims merely provided a means to enforce the warranty provisions in the UCC.

 

Estate of Ramona Cordero v. Christ Hospital, et al.
403 N.J. Super. 306
Decided October 29, 2008

 

Background: Decedent’s estate sued a hospital for the negligence of an anesthesiologist who attended to the deceased patient during surgery performed at the hospital. The trial court granted summary judgment for the hospital and held that there was no evidence indicating the hospital “actively held out” the anesthesiologist as its agent or that the hospital mislead the patient into believing an agency relationship existed between the hospital and the doctor. Plaintiff appealed. 

 

Outcome: The Appellate Court reversed, finding that, if a hospital provides a doctor for a patient, and that patient, given the totality of the circumstances created by the hospital, reasonably believes the doctor is rendering care on behalf of the hospital, the hospital has held out that doctor as its agent. Further, under these circumstances, the patient’s acceptance of that doctor’s care on behalf of the hospital may be presumed unless rebutted.