Choudhry v. Fowlkes

243 Md.App. 75

219 A.3d 107

Shabbir Ahmed CHOUDHRY

v.Lolita D. FOWLKES

No. 1148, Sept. Term, 2017

Court of Special Appeals of Maryland.

November 1, 2019

Argued by: James P. Robinson (Edward W. Brady, John R. Fischel, Brady, Fischel & Daily, LLC on the brief), Annapolis, MD, for Appellant.

Argued by: C. Drew Fritch (Thomas C. Cardaro, Jeffrey L. Peek, Samuel V. D. Lewis, Cardaro & Peek, LLC on the brief), Baltimore, MD, for Appellee.

Meredith, Friedman, Eyler S. Deborah (Senior Judge, Specially Assigned), JJ.

Friedman, J.

The wrongful death of a child, no matter that child's age, is an unimaginable loss. A jury found Shabbir Choudhry, M.D., liable for the wrongful death of Lolita Fowlkes' daughter, 22-year-old Yenita Owens. As a result, the jury awarded Fowlkes $500,000 in noneconomic damages and $500,000 in economic damages for the loss of Owens' services. During trial, Fowlkes, who had lived with Owens since her daughter's birth, testified that her daughter completed various household chores for about two hours per day and that she hoped to live with Owens forever. Choudhry twice moved for judgment as to Fowlkes' damages claim for the loss of Owens' services, but the Circuit Court for Baltimore City denied the motions.

On appeal, Choudhry asserts that the circuit court erred in denying his motions for judgment as to Fowlkes' economic damages claim. We agree. Accordingly, we reverse the $500,000 jury award for the loss of Owens' services.

BACKGROUND

In March 2013, 22-year-old Owens died from complications related to necrotizing fasciitis, a severe infection in her leg and groin area. As a result, Owens' mother, Fowlkes, filed a wrongful death action against various medical providers who treated Owens, including Choudhry.¹

During trial, Fowlkes, then 44 years old, testified that Owens had lived with her for Owens' entire life. Owens was born when Fowlkes was 17 years old, and Fowlkes had raised Owens as a single mother. Fowlkes testified that Owens was her best friend.

Fowlkes relayed that, as Owens got older, she helped Fowlkes around the house. Owens would clean the bathroom, wash dishes, mop the floor, and vacuum. Fowlkes did not drive, and Owens would drive Fowlkes to places like Wal-Mart and Sam's Club using another family member's car. Fowlkes estimated that Owens spent about two hours each day performing these tasks for her. Fowlkes testified that if she could continue to live with Owens, then she "was going to live with her forever."

During Fowlkes' case-in-chief, her counsel asked the court to take judicial notice of life expectancy tables to assist the jury in evaluating the joint life expectancy of Fowlkes and Owens, pertinent to Fowlkes' claim for damages based on the loss of Owens' services. Though counsel took the position that the market value of the services Owens provided to Fowlkes was within the common knowledge of the jurors, counsel also asked the court to take judicial notice of the minimum wage statute² to provide a "baseline" value of those services to the jury. The court denied both requests. Concerning the life expectancy tables, the court said, "I see no reason to take judicial notice of that because I don't know what the life expectancy of this woman would have been based on her medical condition."³ As to the minimum wage statute, the court commented that if the value of the services was within the jurors' common knowledge, judicial notice was not necessary. The court pointed out that counsel had "every right to argue to the trier of fact what you believe the value of something is."

At the close of Fowlkes' case-in-chief, Choudhry moved for judgment under Maryland Rule 2-519 as to Fowlkes' damages claim for the loss of Owens' household services. Defense counsel argued that the evidence Fowlkes presented was insufficient as a matter of law to submit the damages claim to the jury. The court denied the motion. At the close of all the evidence, Choudhry renewed his motion for judgment as to the damages claim for loss of household services, but the court again denied the motion.

The jury found Choudhry liable for Owens' death. The jury then awarded Fowlkes $500,000 in noneconomic damages and $500,000 in economic damages for the loss of Owens' services.

On appeal, Choudhry challenges only the $500,000 jury award for economic damages described as "loss of services."

DISCUSSION

Choudhry asserts that the trial court erred when it denied his motion for judgment as to Fowlkes' damages claim for the loss of household services for two reasons. First , he contends that the household services that Fowlkes testified Owens performed do not constitute a recoverable pecuniary loss. Second , he asserts that even if such household chores can be recovered as a pecuniary loss, Fowlkes nonetheless presented insufficient evidence to support any non-speculative damages award.

Under Maryland Rule 2-519, any "party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all the evidence." MD. RULE 2-519(a). When ruling on a motion for judgment in a jury trial, the trial "court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made." MD. RULE 2-519(b). When reviewing the trial court's denial of a motion for judgment, we "perform the same task as the trial court, affirming the denial of the motion if there is any evidence, no matter how slight, that is legally sufficient to generate a jury question." Prince George's Cty. v. Morales , 230 Md. App. 699, 711, 149 A.3d 741 (2016). Whether the types of services Owens performed for Fowlkes constitute a recoverable pecuniary loss is a question of law, which we review without deference to the trial court. See U.S. v. Searle , 322 Md. 1, 4, 6-7, 584 A.2d 1263 (1991) ; Khalifa v. Shannon , 404 Md. 107, 115, 945 A.2d 1244 (2008).

For the reasons discussed below, we hold that household services like those Owens performed may be recoverable as a pecuniary loss but that Fowlkes presented insufficient evidence to submit her damages claim to the jury. Therefore, the trial court should have granted Choudhry's motion for judgment, so we reverse the $500,000 economic damages award for the loss of Owens' services.

I. HISTORY AND BACKGROUND

A. The Wrongful Death Act Generally

We start with a brief overview of the wrongful death statute. "The wrongful death statute allows the decedent's beneficiaries or relatives to recover damages for loss of support or other benefits that would have been provided, had the decedent not died as a result of another's negligence." Spangler v. McQuitty , 449 Md. 33, 53, 141 A.3d 156 (2016). Maryland initially adopted its wrongful death statute in 1852, and until 1969, limited recovery to pecuniary losses. Barrett v. Charlson , 18 Md. App. 80, 84-85, 305 A.2d 166 (1973). The statute has been amended over time to increase the types of damages recoverable and the beneficiaries who may recover damages for the wrongful death of a family member. H. KENNETH ARMSTRONG, ET AL., MARYLAND TORT DAMAGES 43-44 (Robert R. Michael, ed., 7th ed. 2015). It is well established that the wrongful death statute now allows a covered beneficiary to recover for both pecuniary (i.e., economic) and nonpecuniary (often referred to as noneconomic or solatium) damages resulting from the wrongful death of a family member listed in the statute. Spangler , 449 Md. at 69, 141 A.3d 156. Accordingly, a parent of an adult child undisputedly may recover both types of damages that arise from the wrongful death of an adult child. MD. CODE, COURTS AND JUDICIAL PROCEEDINGS ("CJ") § 3-904(e).

B. Loss of Household Services as Economic Damages in a Wrongful Death Action

Turning to the concept of household services, we acknowledge that our previous cases addressing the recovery of damages for a loss of such services do not always provide trial courts and litigants with clear, consistent guidance about what a beneficiary must show to be entitled to such damages. Better direction from the appellate courts is long overdue.

Consequently, upon our review of Maryland case law and other persuasive authority, we have derived the following 3-part rule for when a beneficiary in a wrongful death action may recover economic damages for the loss of household services. Specifically, we conclude that a beneficiary must: (1) identify domestic services that have a market value; (2) have reasonably expected the decedent to provide the identified services, which—absent the decedent's legal obligation to provide the services—will typically require evidence showing that the decedent was regularly providing the services in the past; and (3) present some evidence concerning the duration the decedent would have likely provided the services. We explain below.

1. Identification of Domestic Services that have a Market Value

In Maryland, "damages referred to as ‘household services’ can have both pecuniary and nonpecuniary aspects." Searle , 322 Md. at 6, 584 A.2d 1263. The Court of Appeals has clarified under what circumstance a loss of household services will constitute a pecuniary loss:

[W]here an award for household services is compensation for the loss of domestic services and is based on the market value of those lost services , the award is pecuniary and is not duplicative of the solatium damages. These are services that can be performed by domestic workers and their replacement value is measured by prevailing wage rates for such services.

Searle , 322 Md. at 7, 584 A.2d 1263 (emphasis added); see also Edmonds v. Murphy , 83 Md. App. 133, 170, 573 A.2d 853 (1990) (household "services which can, but need not necessarily, be performed by hired help" constitute a pecuniary, rather than nonpecuniary, loss); Holmes v. Criminal Injuries Comp. Bd. , 278 Md. 60, 67, 359 A.2d 84 (1976) ("this Court has held that the loss of domestic services performed by a relative may...