Fowlkes v. Choudhry

Decision Date26 March 2021
Docket NumberNo. 6, Sept. Term, 2020,6, Sept. Term, 2020
Citation248 A.3d 298,472 Md. 688
Parties Lolita D. FOWLKES v. Shabbir Ahmed CHOUDHRY
CourtCourt of Special Appeals of Maryland

Argued by Thomas C. Cardaro (Jeffrey L. Peek and C. Drew Fritch, Cardaro & Peek, LLC, Baltimore, MD), on brief, for Petitioner.

George S. Tolley III, Esquire, Dugan, Babij, Tolley & Kohler, LLC, 1966 Greenspring Drive, Suite 500, Timonium, MD 21093, for Amicus Curiae Maryland Association for Justice, Inc.

Argued by John R. Fischel (Edward W. Brady, Brady, Fischel & Daily, LLC, Annapolis, MD), on brief, for Respondent.

Mitchell Y. Mirviss, Esquire, Emily J. Wilson, Esquire, Venable LLP, 750 East Pratt Street, 9th Floor, Baltimore, MD 21202, for Amici Curiae Medical Mutual Liability Society of Maryland, and Medchi, The Maryland State Medical Society.

Argued before: Barbera, C.J., McDonald, Hotten, Getty, Booth, Biran, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.

Battaglia, J.

This Court granted certiorari in the present case to determine what must be proven in a wrongful death medical malpractice case in order for a parent to recover pecuniary, also referred to as economic, damages for the alleged loss of household services rendered by a deceased adult child to the parent, under the Wrongful Death Act, Sections 3-901 to 3-904 of the Courts and Judicial Proceedings Article, Maryland Code (1973, 2013 Repl. Vol.).1 Fowlkes v. Choudhry , 467 Md. 712, 226 A.3d 245 (2020).

The Petitioner, Ms. Lolita Fowlkes, asks that we reverse a judgment of the Court of Special Appeals that had vacated an award of $500,000 against Dr. Shabbir Choudhry, Respondent, by a jury in the Circuit Court for Baltimore City, for loss of household services, which she alleged she would have received from her adult daughter, Yenita Owens, who had died after having received medical treatment by Dr. Choudhry, among others.2 The Court of Special Appeals, in a published opinion, Choudhry v. Fowlkes , 243 Md. App. 75, 219 A.3d 107 (2019), held that in a wrongful death action, a parent could recover economic damages for loss of household services, but that Ms. Fowlkes had not produced sufficient evidence to have the claim submitted to a jury, pursuant to Maryland Rule 2-519.3

In so doing, the intermediate appellate court articulated a three-part "test" to evaluate claims for economic damages arising from the loss of household services performed for a parent by an adult child prior to her death. According to the intermediate appellate court:

[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.

Id. at 86, 219 A.3d 107.

Application of the articulated "test" to the evidence presented by Ms. Fowlkes yielded a twofold concern for our brethren: the lack of "market value" evidence for the services, as well as the absence of proof "that Ms. Owens intended to continue providing the identified household tasks to her mother on a regular basis in the future", the latter being the basis for the Court's reversal of the judgment for the economic damages for household services. Id. at 101, 219 A.3d 107.

At trial, Ms. Fowlkes testified that she was seventeen years-old when her daughter was born and that she had raised her daughter as a single parent. Ms. Fowlkes stated that she and her daughter had lived together during her daughter's twenty-two years. The two of them had engaged in a variety of activities, by which they developed a very close bond, which, according to Ms. Fowlkes, "was more than a mother and a daughter." According to Ms. Fowlkes, she and her daughter were best friends.

Ms. Fowlkes also testified regarding household tasks that her daughter had performed, which, the parties agree was offered to support her claim for pecuniary damages related to lost household services:

Q [MS. FOWLKES'S ATTORNEY]: And as Yunita [sic] got older, was she also -- was she helping you around the house at all?
A Yes.
Q And what type of things was she helping you with?
A She would clean the bathroom. She would wash the dishes. She would mop the floor. She would vacuum.
Q Are you able to drive?
A No, I'm not, and she would drive me around.
Q Okay. And where would she drive you to?
A She would take me to Wal-Mart, Sam's Club.
Q Did Yunita [sic] have a car?
A No, she would use my cousin's car.
Q And how much time did she spend doing those things for you, on any given day?
A I'm going to say like two hours a day.
Q And I don't know if I've asked you this before, At the time of her passing, who were you living with?
A Yunita [sic].
Q Okay. Throughout Yunita's [sic] entire life, have you lived with her?
A Yes.
Q Okay. Was there ever a day in which you did not live with Yunita [sic]?
A No.
Q Did you have any expectation as to whether you were going to continue to live with Yunita [sic]?
A If I could live with her forever, then I was going to live with her forever.

What constitutes proof of loss under the Wrongful Death Act to support a pecuniary damage award to compensate for the loss of household services from an adult child, now deceased, to a parent and whether Ms. Fowlkes's testimony was sufficient to create a jury question regarding whether the loss of her daughter's services in the future was compensable constitute the crux of the case before us. We shall agree with the Court of Special Appeals that the evidence adduced by Ms. Fowlkes was insufficient to meet her burden of proof because proof of intent on the part of the deceased adult child to continue to perform household services on behalf of the parent must be adduced, in addition to evidence of what the parent expected, to survive a directed verdict.

The Wrongful Death Act was originally enacted in 1852 in Maryland as "An Act to compensate the families of persons killed by the wrongful act, neglect or default of another person." Maryland Laws (1852), Chapter 299. The Act provided:

[1] That whensoever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued), have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
[2] That every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused and shall be brought by and in the name of the State of Maryland, for the use of the person entitled to damages, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, in such shares as the jury by their verdict shall find and direct; Provided, always, that no more than one action shall lie for and in respect of the same subject matter of complaint; and that every such action shall be commenced within twelve calendar months after the death of the deceased person.
[3] That in every such action, the plaintiff on the record shall be required, together with the declaration, to deliver to the defendant, or his attorney, a full particular of the person or persons, for whom and on whose behalf such action shall be brought, and of the nature of the claim, in respect of which, damages shall be sought to be recovered.

1852 Maryland Laws, Chapter 299. The statute and its evolution were summarized by this Court in McKeon v. State, for the Use of Conrad , 211 Md. 437, 442, 127 A.2d 635 (1956) as:

Prior to 1852, under the common law, Maryland permitted no recovery for pecuniary loss suffered by a relative of one killed by the negligence of another. In that year, the Legislature enacted Ch. 299 of the Acts of 1852, which provided an action at law for the benefit of a wife, husband, parent and child of a person whose death shall have been caused by the wrongful act, neglect or default of another, against the person wrongfully causing said death. The list of persons entitled to recover under the then Sec. 2 of the above Act, remained the same until 1937, when it was enlarged to permit recovery by the mother of an illegitimate child and by an illegitimate child when the deceased person was the mother of such child. In 1952, the Legislature again added to this list by including relatives of the deceased who met certain dependency qualifications, but only if there were no surviving wife, husband, parent or child.

In 1969, the General Assembly revised the Act to expand the type of damages recoverable to include non-economic, or solatium, damages.

In the case of the death of a spouse or minor child, the damages awarded by a jury in such cases shall not be limited or restricted to the "pecuniary loss" or "pecuniary benefit" rule, but may include 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.[4 ]

1969 Maryland Laws, Chapter 352.

Under the Act, now codified as Sections 3-901 to 3-904 of the Courts and Judicial Proceedings Article, Maryland Code (1973, 2020 Repl. Vol.), a "wrongful act" is "an act, neglect, or default including a felonious act which would have entitled the party injured to maintain an action and...

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4 cases
  • Neal v. United States
    • United States
    • U.S. District Court — District of Maryland
    • February 8, 2022
    ... ... v. Ochse , 453 Md. 303, 354, 160 A.3d 1238, 1256 (2017). Economic damages are sometimes referred to as "pecuniary" damages. Choudhry v. Fowlkes , 243 Md. App. 75, 85, 219 A.3d 107, 113 (2019), aff'd , 472 Md. 688, 248 A.3d 298 (2021). Economic damages refer to those which " will ... ...
  • Tserkis v. Baltimore County
    • United States
    • U.S. District Court — District of Maryland
    • July 23, 2021
    ... ... benefits that would have been provided, had the decedent not ... died as a result of another's negligence'" ... Choudhry v. Fowlkes, 243 Md.App. 75, 85, 219 A.3d ... 107, 112 (2019) (quoting Spangler v. McQuitty, 449 ... Md. 33, 53, 141 A.3d 156, 168 ... ...
  • Norris v. PNC Bank
    • United States
    • U.S. District Court — District of Maryland
    • May 26, 2023
    ... ... 303, 354, 160 A.3d 1238, 1256 (2017) ... Economic damages are sometimes referred to as ... “pecuniary” damages. Choudhry v ... Fowlkes , 243 Md.App. 75, 85, 219 A.3d 107, 113 (2019), ... aff'd , 472 Md. 688, 248 A.3d 298 (2021) ... Economic damages ... ...
  • In re Nickerson
    • United States
    • Court of Special Appeals of Maryland
    • March 26, 2021

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