DRD Pool Serv., Inc. v. Freed

• Decision Date: 24 September 2010
• Docket Number: No. 104, Sept. Term, 2009.,104, Sept. Term, 2009.
• Citation: 416 Md. 46,5 A.3d 45
• Parties: DRD POOL SERVICE, INC. v. Thomas FREED, et al.
• Court: Maryland Court of Appeals

5 A.3d 45

416 Md. 46

DRD POOL SERVICE, INC.

v.Thomas FREED, et al.

No. 104, Sept. Term, 2009.

Court of Appeals of Maryland.

Sept. 24, 2010.

Steven R. Migdal (Buck, Migdal & Myers, Chartered of Annapolis, MD), on brief, for Petitioner/Cross-Appellant.

Andrew H. Baida (Benjamin Rosenberg and Douglas J. Furlong of Rosenberg, Martin, Greenberg, LLP; Gary A. Wais and H. Briggs Bedigian of Law Offices of Wais & Vogelstein of Baltimore, MD), on brief, for Respondent/Cross-Petitioners.

Jennifer S. Lubinski, Funk & Bolton, P.A., Baltimore, MD, for the brief of Amicus Curiae, Maryland Defense Counsel, Inc.

James L. Shea, Mitchell Y. Mirviss, Michael J. De Vinne, Venable LLP, Baltimore, MD, for Amicus Curiae brief of Medical Mutual Liability Insurance Society of Maryland, Inc., the Medical and Chirurgical Faculty of Maryland, Inc., t/a the Maryland State Medical Society, and the American Medical Association.

Mark A. Behrens, Philip S. Goldberg, Cary Silverman, Shook, Hardy & Bacon L.L.P., Washington, D.C., for Maryland Chamber of Commerce, Chamber of Commerce of the United States of America, NFIB Small Business Legal Center, American Tort Reform Association, Maryland Motor Truck Association, American Trucking Associations, American Chemistry Counsel, Property Casualty Insurers Association of America, National Association of Mutual Insurance Companies, and American Insurance Association's Amici Curiae Brief in Support of Defendant/Cross-Appellee.

Cary J. Hansel, Joseph M. Creed, Joseph, Greenwald & Laake, P.A., Greenbelt, MD, for Amicus Curiae brief of the Maryland Association for Justice.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, and BARBERA, JJ.

GREENE, J.

In this case, we are asked to determine two issues. First, we are asked to decide whether a jury may consider a claim for conscious pain and suffering when there is a reasonable inference of consciousness prior to the decedent's death, but the length of that consciousness and evidence of pain and suffering during the drowning process are based on expert testimony rather than on eyewitness testimony. The petitioner, DRD Pool Service, Inc. ("DRD"), argues that a claim for conscious pain and suffering cannot be based solely on an expert's opinion in the absence of any case-specific independent objective evidence to support that opinion. The respondents, Thomas Freed and Deborah Neagle Webber Freed (the "Freeds") surviving parents of Connor Freed, argue that once a reasonable inference arises from expert testimony, the jury should decide whether the decedent experienced conscious pain and suffering. After reviewing Maryland case law andholdings of courts from other states, we agree with the Freeds and shall affirm the judgment of the Court of Special Appeals.

We are asked also to revisit our precedent concerning the constitutionality of Maryland's cap on non-economic damages. We shall hold that the standards for disregarding stare decisis and reconsidering precedent have not been satisfied here, and, accordingly, we find no basis to hold that the statutory cap on non-economic damages is unconstitutional.

FACTS AND PROCEDURAL BACKGROUND

On June 26, 2006, Connor Freed, a healthy five year old boy, went to the Crofton Country Club swimming pool with a family friend, Paul Carroll, and two other children. At some time between 4:15 and 4:30 p.m., Connor left the water and asked Mr. Carroll to remove Connor's life jacket so he could use the restroom. Mr. Carroll removed the life jacket and told Connor to return, after he used the restroom, so Connor could put his life jacket on before reentering the water. According to Mr. Carroll, "after a couple of minutes" he wondered where Connor was because Connor was taking longer than expected to return. Then,Mr. Carroll sent one of the other children in his group into the bathroom to look for Connor.

Around that time, another child pointed to someone floating in the pool. Mr. Carroll and another adult ran over and found Connor face down in the pool, in what Carroll described as a "dead man's float." After Mr. Carroll and the other patron pulled Connor out of the water, emergency help came and attempted lifesaving measures. Connor never regained consciousness. None of the estimated 80-90 patrons at the pool that afternoon saw Connor enter the pool after leaving the bathroom, nor did anyone see him struggle in the water. The autopsy report showed Connor died of drowning, and the medical examiner found "no evidence of significant recent injury."

Thomas Freed, in his capacity as a personal representative of Connor Freed's estate, and the Freeds, together as survivingparents, filed in the Circuit Court for Anne Arundel County a complaint for damages alleging causes of action for survival and wrongful death. In their lawsuit, they named, inter alia, DRD Pool Service, Inc. ("DRD") as a defendant, alleging DRD's negligence in maintaining the pool. Thomas Freed, as personal representative of Connor's estate, sought damages for conscious pain and suffering, and the Freeds, as surviving parents, sought monetary relief on the basis of their wrongful death claim for the grief and mental anguish they experienced as a result of Connor's drowning. Following fact and expert witness discovery, DRD filed a motion for summary judgment on the claim of conscious pain and suffering. At the hearing, both parties introduced excerpts from the depositions of their respective expert witnesses.

The Freeds' and DRD's experts disagreed on whether it was possible to determine Connor's actual conscious pain and suffering. The Freeds' expert was Dr. Jerome Modell. According to the record, he treated over 100 near-drowning victims and authored a book on the pathophysiology of drowning. Dr. Modell testified to a reasonable degree of medical certainty that Connor experienced pain and suffering during the two and half minutes it approximately takes for a five-year-old to lose consciousness as a result of drowning. He based his opinion on interviews he conducted with patients and animal experiments. Dr. Modell also relied on a report prepared by a group of international experts who participated in the 2002 World Congress on Drowning ¹ and an article published in the Edinbrough Medical Journal by Dr. Lowson ² about his near-drowning experience.

DRD argued that because no one saw Connor drown, the claim of conscious pain and suffering was not supported by any objective evidence and was therefore precluded. DRD's expert, Dr. Brandis Marsh, admitted it was more likely than not that Connor was conscious when he entered the pool, but he could not say so with exact certainty. Nor could Dr.Marsh say for how long, if at all, Connor consciously suffered while drowning because no eyewitnesses observed him.

After a hearing in the Circuit Court, the trial judge granted DRD's motion for summary judgment on the issue of conscious pain and suffering. The judge explained that no material fact was in dispute because "there is not a dispute that the child was conscious for some period of time." The trial judge relied on the case of University of Maryland Medical System Corporation v. Malory, 143 Md.App. 327, 795 A.2d 107 (2001), in which the Court of Special Appeals pointed out that a proponent must show, by some objective measure, that the decedent was conscious of the pain and suffering before the claim may be submitted to the jury. According to the Circuit Court, because there were no eyewitnesses to say when Connor became unconscious, there was no objective measure of Connor's conscious pain and suffering in order for the jury to consider the issue.

Proceeding on the remaining wrongful death claim, the jury found DRD negligent and found that DRD's negligence was the proximate cause of Connor's death. The jury awarded the Freeds $4,006,442.³ Pursuant to the statutory cap imposed in Maryland on non-economic damages, Md.Code (2008 Repl.Vol.), § 11-108 of the Courts and Judicial Proceedings Article (hereinafter "the Cap"), the wrongful death award was reduced to $1,002,500. The statute provides in pertinent part that, "[i]n an action for damages for personal injury inwhich the cause of action arises on or after July 1, 1986, an award for noneconomic damages many not exceed $350,000." § 11-108(b) (1). The statutory cap was raised in 1994 to $500,000, and the wrongful death cause of action was added. § 11-108(b)(2)(i). Further, "[t]he limitation ... shall increase by $15,000 on October 1 of each year beginning on October 1, 1995." § 11-108(b)(2)(ii).⁴ The Freeds filed a motion to alter or amend the judgment challenging the constitutionality of the Cap. According to the Freeds, the statutory limitation on non-economic damages violated their right to a jury trial under Articles 5 ⁵ and 23 ⁶ of the Maryland Declaration of Rights, the right to redress for injury under Article 19,⁷ and the guarantee of equal protection under the Fourteenth Amendment to the United States Constitution and Article 24 ⁸ of the Declaration of Rights.

[416 Md. 51, 5 A.3d 56]

The Freeds' motion was denied. The Freeds filed a timely notice of appeal to the Court of Special Appeals with regard to the grant of summary judgment on the survivorship claim and the denial of the motion to alter or amend the judgment. The Court of Special Appeals reversed the Circuit Court's grant of summary judgment. The court held that direct evidence, such as an eyewitness who could say how long Connor consciously suffered, was not required in order to submit the claim to the jury. Freed v. DRD, 186 Md.App. 477, 488, 974 A.2d 978, 985 (2009). The court held that the evidence presented to the jury in this case was sufficient for the jury to infer Connor experienced conscious pain and suffering immediately preceding his death by drowning. 186 Md.App. at 489, 974 A.2d at 985. The intermediate appellate court explained that Connor was a healthy five-year-old who entered the pool without adult supervision or a lifejacket. Id....