Osunde v. Lewis

ADEOLA OSUNDE et al., Plaintiffs,

v.CHRISTINA E. LEWIS, Defendant.

Civil Case No.: PWG-11-0234

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Northern Division

Dated: March 15, 2012

MEMORANDUM AND ORDER

This Memorandum & Order¹ addresses Defendant Christina E. Lewis's Motion in Limine, ECF No. 29, which, for the reasons explained below, is construed as a motion for partial summary judgment; Defendant's Amended Motion in Limine, ECF No. 35; Defendant's February 17, 2012 letter explaining the corrections made to the original motion, ECF No. 36; Plaintiffs Adeola and Olubunmi Osunde's Response, ECF No. 38; and Defendant's Reply, ECF No. 43. For the reasons stated herein, Defendant's Motion in Limine—construed as a motion for partial summary judgment as to Plaintiffs' wrongful death claim, which is found in Count II of the Complaint, ECF No. 1—is GRANTED. Plaintiffs will not be permitted to present their wrongful death claim at trial. Instead, trial will proceed on Plaintiffs' negligence and loss of consortium claims only.² Accordingly, this Order disposes of ECF Nos. 29, 35, 36, 38, and 43.

I. BACKGROUND

A. Factual Background³

This case arises out of an accident that occurred on or around June 10, 2009 in the passenger-pick up area of Franklin Hospital, in Baltimore, Maryland, where Olubunmi Osunde had parked his vehicle as he waited to pick up his wife, Adeola Osunde, who was seven-months pregnant at the time, following an antenatal appointment. See Compl. ¶¶ 6-7; Def.'s Am. Mot. in Limine ¶ 1. As Plaintiffs were sitting in their vehicle in the pick-up area, a vehicle operated by Defendant rear-ended Plaintiffs' vehicle, causing Mrs. Osunde to fall forward. See Compl. ¶¶ 89; Def.'s Am. Mot. ¶ 2. Plaintiffs contend that this collision caused a tear in Mrs. Osunde's uterus, and that an emergency caesarian section was necessary to stop the excessive bleeding and to save Mrs. Osunde's life. Compl. ¶¶ 10-12; Def.'s Am. Mot. ¶ 2. The emergency caesarian section resulted in the premature birth of Plaintiffs' son, Joshua Osunde. Compl. ¶ 2; Def.'s Am. Mot. ¶ 2. Plaintiffs further contend that Joshua Osunde's premature birth, which they maintain was caused by Defendant's negligence, resulted in his death nearly four months later, on October 8, 2009. Compl. ¶ 13; Def.'s Am. Mot. ¶ 2. Plaintiffs also allege that, as a result of her injuries, Mrs. Osunde "required extensive medical treatment and therapy." Compl. ¶ 14.

B. Distinguishing Wrongful Death and Survivorship Claims

Plaintiffs filed a three-count complaint in federal court alleging negligence, wrongful death, and loss of consortium. Compl. ¶¶ 15-31. Plaintiffs did not plead a survivorship claim. As a result, it appears that Plaintiffs have failed to appreciate the difference between survivorship and wrongful death claims under Maryland law.⁴ Specifically, Plaintiffs have sought damages for injuries and expenses sustained by their infant son that are not recoverable in a wrongful death action. See, e.g., Compl. ¶ 25 (seeking damages for the mental and physical pain that Joshua Osunde allegedly sustained as a result of the accident); Joint Final Pretrial Order 2, ECF No. 34 (seeking damages for Joshua Osunde's pain and suffering and burial expenses). Rather, Maryland law is clear that, with regard to their wrongful death claim, Plaintiffs only may recover for economic and noneconomic damages that they incurred as a result of the death of their infant son. See Smith v. Borello, 804 A.2d 1151, 1154 (Md. 2002) (explaining that, in a wrongful death action, a deceased victim's parent, spouse, or child "may sue, on his or her own behalf, for certain losses the person suffered by reason of the wrongful death of the victim" (emphasis added)); Paul Mark Sandler & James K. Archibald, Pleading Causes of Action in Maryland 399 (4th ed. 2008) ("Damages [in a wrongful death claim] are the harm caused to the survivors as a result of the decedent's death." (emphasis added)); see also Md. Code Ann., Cts. & Jud. Proc., § 3-904(d) (West 2010) (stating that, in addition to pecuniary damages, wrongful death beneficiaries may recover damages for "mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education where applicable" suffered as a result of the victim's death). Plaintiffs may not recover for economic or noneconomic damages, includingpain and suffering damages and burial expenses, incurred by their infant son prior to his death under their wrongful death claim. Any such damages must be brought by the estate of the child in a separate survivorship claim. See Smith, 804 A.2d at 1154 (explaining that, in a survival action, the personal representative of the victim may sue to recover, for the estate of the victim, damages for the economic and non-economic losses suffered by the victim prior to his or her death—the damages that the victim would have been able to recover had he or she survived" (emphasis added)); Sandler & Archibald, supra, at 399 ("A survival action . . . is brought by the personal representative of the decedent's estate to recover, on behalf of the decedent and for the estate, damages (such as pain and suffering) sustained by the decedent prior to his or her death."); Anderson v. United States, No. AW-09-2553, 2011 WL 1231143, at *3 (D. Md. Mar. 28, 2011) ("Damages recoverable in a Maryland survival action are limited to compensation for pain and suffering endured by the deceased, his lost time, and his funeral expenses." (citing Stewart v. United Elec. Light & Power Co., 65 A. 49, 53 (Md. 1906))).

Arguably, it may be possible to construe Plaintiffs' complaint under Fed. R. Civ. P. 1 as having attempted to plead both a wrongful death and a survivorship claim. See Fed. R. Civ. P. 1 (requiring the Court to construe the rules of procedure "to secure the just, speedy, and inexpensive determination of every action and proceeding"). However, as I describe below, Defendant's motion, in essence, challenges Plaintiffs' ability to establish the causation element of their wrongful death claim, and therefore is construed as a motion for partial summary judgment. A decision that Plaintiffs have not presented sufficient admissible evidence to create a triable issue of fact regarding causation would be fatal to either a wrongful death or survivorship claim. See Sandler & Archibald, supra, at 396 (stating that a successful wrongful death claim requires proof that death occurred and that such death was "proximately caused by thenegligence of the defendant" (citing Md. Code Ann., Cts. & Jud. Proc. §§ 3-901 - 3-904; Weimer v. Hetrick, 525 A.2d 643 (Md. 1987))); id. at 404 (stating that a successful survivorship claim requires proof that "the defendant's negligence was the direct and proximate cause of the decedent's injuries" (citing Md. Code Ann., Est. & Trusts § 7-401(x) (2001 & Supp. 2007); Ory v. Libersky, 389 A.2d 922 (Md. 1978))); see also Miskin v. Baxter Healthcare Corp., 107 F. Supp. 2d 669, 671 (D. Md. 1999) (stating that, to survive a motion for summary judgment, the non-moving party "must produce competent evidence on each element of his or her claim"). Accordingly, I first must consider the issues with causation raised in Defendant's present motion. It only will be necessary to consider whether the complaint can be construed as properly pleading both causes of action if the causation issue is resolved in Plaintiffs' favor.

C. Construing Defendant's Motion

In her Motion in Limine, Defendant seeks to "exclude from trial any and all evidence of the death of" Joshua Osunde. Def.'s Am. Mot. 4. Because the practical effect of excluding such evidence would be to eliminate Plaintiffs' wrongful death claim, I will construe Defendant's motion as a motion for partial summary judgment as to the wrongful death claim. See Fed. R. Civ. P. 1; see also Monge v. Portofino Ristorante, 751 F. Supp. 2d 789, 792 n. 1 (D. Md. 2010) (explaining that Rule 1 instructs the Court "not [to] exalt form over substance"); Hall v. Sullivan, 229 F.R.D. 501, 504 (D. Md. 2005) (same). I informed the parties that I intended to do so in our February 27, 2012 pretrial conference, and directed Plaintiffs to respond to Defendant's motion as if it were a motion for summary judgment, focusing, in particular on establishing that there is a genuine issue for trial regarding whether Defendant's alleged negligence caused the death of Joshua Osunde. See Feb. 29, 2012 Ltr. Order 1 (memorializing discussions in the pretrial conference). Defendant was instructed to do the same in her reply. See id.

II. DISCUSSION

A. Summary of Arguments

In her motion, Defendant argues, in essence, that Plaintiffs are unable to establish a prima facie case for wrongful death, as they have offered no evidence establishing "that the child's death was causally related to the accident at issue." See Def.'s Am. Mot. ¶ 8. Defendant acknowledges that expert testimony "relate[s] the accident to a tear in the uterus of Plaintiff Adeola Osunde and the Caesarian operation that occurred immediately after the accident." Id. ¶ 11 (referencing Pls.' Resp. Ex. C, May 13, 2011 Ltr. from Julius S. Piver to Muyiwa Sobo, ECF No. 38-4 ("Piver Rep.")). Such testimony does not, however, Defendant stresses, relate the motor vehicle accident to Joshua Osunde's death. See id. ("[T]he child survived four more months [after the accident], and any number of factors could have proximately caused the death."). Moreover, Defendant contends, even were some evidence of causation offered, "the direct, proximate cause of the death of the child is a complex medical question requiring expert medical testimony," and Plaintiffs have offered no such testimony. Id. ¶¶ 5-8. Indeed, Defendant points out, Plaintiffs' expert witness, Dr. Julius Piver, M.D., testified in his deposition that he had no opinion regarding the cause of Joshua...