Pasteur v. Skevofilax
| Decision Date | 08 January 2007 |
| Docket Number | No. 15, September Term, 2006.,15, September Term, 2006. |
| Citation | 914 A.2d 113,396 Md. 405 |
| Parties | AVENTIS PASTEUR, INC., et al. v. John SKEVOFILAX, Individually, etc., et al. |
| Court | Court of Special Appeals of Maryland |
Stephen E. Marshall (Paul F. Strain, Mitchell Y. Mirviss, David S. Gray, Venable LLP, Baltimore), for petitioners.
Paul W. Spence (Paul W. Spence, P.A., Towson, C. Andrew Waters, Waters & Kraus, LLP, Dallas, TX, on brief), for respondents.
D'Ana E. Johnson, Carolyn Israel Stein, Bonner Kiernan Trebach & Crociata, Washington, DC, for Aventis Pasteur, Inc.
Carlos E. Provencio, Shook, Hardy & Bacon, L.L.P., Washington, DC, for Eli Lilly & Co.
Ava Lias-Booker, McGuire Woods LLP, Baltimore, Deborah M. Russell, McGuire Woods, LLP, Richmond, VA, Winstol D. Carter, Jr., Marcy Hogan Greer Fulbright & Jaworski, L.L.P., Houston, TX, for GlaxoSmithKline & GlaxoSmithKline Biologicals, S.A.
Daniel J. Thomasch, Richard W. March, Orrick, Herrington & Sutcliffe, LLP, New York City, Raymond G. Mullady, Jr., Kenneth Y. Turnbull, Orrick, Herrington & Sutcliffe, LLP, Washington, DC, for Wyeth.
Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.
On 14 April 2003, Helen and John Skevofilax (Respondents here), individually and as next friends of their eight-year-old son, Michael, filed suit in the Circuit Court for Baltimore City seeking damages from Defendants (Petitioners here), several corporations engaged in the manufacture of pediatric vaccines and the ingredients incorporated in the vaccines.1 The Plaintiffs-Respondents claimed that Michael's autism spectrum disorder was caused by thimerosal, a mercury-containing preservative used in pediatric vaccines administered to Michael as an infant. The disposition of the complaint on preliminary motions is what brings this case to us. On 21 December 2004, the Circuit Court denied Respondents' motion for dismissal of the complaint without prejudice, and granted summary judgment in Petitioners' favor. The court, having extended discovery three times by way of amended scheduling orders, determined that summary judgment was appropriate in light of Respondents' "conceded inability to produce an expert witness on the area of specific causation in connection with this proceeding."
Respondents noted a timely appeal, arguing that the trial court abused its discretion in denying their motion to dismiss without prejudice pursuant to Maryland Rule 2-506(b).2 The Court of Special Appeals, in a reported opinion,3 agreed with the Skevofilaxes and reversed. The intermediate appellate court reasoned that the need to protect Michael's rights as a minor warranted a voluntary dismissal, in lieu of the summary judgment entered in Petitioners' favor.
For reasons we shall explain, we reverse the judgment of the Court of Special Appeals. It was neither an abuse of discretion by the Circuit Court to deny Respondents' motion to dismiss nor error of law to enter summary judgment in favor of Petitioners.
Respondents' complaint in the Circuit Court alleged that toxic levels of mercury in the thimerosal contained in vaccinations, administered to Michael as a baby, caused his autism.4 This lawsuit thus became one of many thimerosal vaccine cases maintained throughout the country.
On 30 September 2003 Judge Stuart R. Berger of the Circuit Court for Baltimore City was assigned specially to preside over the case.5 The parties met on 13 November 2003 in order to discuss a scheduling order for discovery, preliminary motions, oppositions and replies, pre-trial conferences, and the trial itself. The court issued, on 18 November 2003, a Scheduling Order requiring completion of all discovery, including depositions and resolution of any fact discovery disputes, no later than 30 July 2004. The Order further directed the identification of Respondents' expert witnesses on or before 1 September 2004 and identification of Petitioners' experts by no later than 1 November 2004. The experts were required to be available for deposition no later than by 30 September and 30 November 2004, respectively. The Order also called for completion of all discovery of experts, including depositions, no later than 15 December 2004, required all dispositive motions to be filed no later than 15 February 2005, and directed that the parties attend a pre-trial conference on 4 April 2005. Trial was set for 2 May 2005.
Discovery began with the depositions of Mr. and Mrs. Skevofilax, and the scheduling of several other depositions to be taken at a later date. By letter dated 24 May 2004, however, Respondents' counsel expressed doubt to the Circuit Court that the 30 July 2004 deadline for completion of fact discovery could be met. According to Respondents, GlaxoSmithKline recently was added as a defendant by the Second Amended Complaint filed on 24 May 2004, and Wyeth had served Respondents' counsel with approximately 20,000 documents in response to Respondents' discovery requests. The Skevofilaxes accordingly filed a Motion to Modify the Scheduling Order on 15 June 2004. Following a hearing, the court ordered on 13 July 2004 (the Amended Scheduling Order) that the following changes be made in the Scheduling Order: (1) the date for completion of fact discovery was extended from 30 July 2004 to 15 December 2004; (2) the deadline for designation of Respondent's expert witnesses was pushed-back two weeks to 15 September 2004, and the time for deposing those experts was likewise moved to 15 October 2004; (3) the date for identification of Petitioner's witnesses was moved back one week to 8 November 2004; and, (4) the deadline for deposing them was changed to 7 December 2004 from 30 November 2004. Judge Berger refused, however, to grant Respondents' request to move the trial date to 19 September 2005 because time constraints imposed by operation of the Circuit Court's docket rotation system mitigated against such a delay.6
Respondents filed a Motion to Modify Amended Scheduling Order on 2 August 2004, citing the "extensive document production, numerous depositions of fact witnesses and corporate designees, and the appearance of [GlaxoSmithKline]. . . ."7 After another hearing, the Circuit Court, on 2 September 2004, again extended discovery (Second Amended Scheduling Order). The time for designation of Respondents' experts was extended another three weeks to 8 October 2004, and those experts were to be available for deposition by no later than 5 November 2004. The deadline for identification of Petitioners' experts was changed to 29 November 2004, and they were to be available for deposition on or before 20 December 2004. The deadline for completion of all discovery as to proposed expert witnesses was extended five days to 20 December 2004.
Respondents designated four expert witnesses as to liability and four experts as to damages on 7 October 2004. One, James Jeffrey Bradstreet, M.D., was designated to testify to specific causation, i.e., "that significant amounts of mercury to which the minor plaintiff was exposed, including bolus doses received as a result of vaccination, was a substantial factor in causing [Michael's] current injuries and symptoms," and further, "that the exposure to toxic levels of mercury within the vaccines [was] a substantial contributing factor to the minor Plaintiff's ultimate injuries and symptoms." Dr. Bradstreet was the sole expert named by Respondents on the question of specific causation.8
On 26 October 2004, Respondents notified Petitioners, by letter, that "due to unforeseen circumstances [genomic profiling] test results critical to [Dr.] Bradstreet's opinions" would be delayed up to sixty days.9 The relevant genomic susceptibility tests assertedly needed for Dr. Bradstreet's expert medical opinion were being performed by a laboratory at the University of Arkansas. An affidavit completed by Dr. Bradstreet stated that an outbreak of leukemia in New Mexico caused the Arkansas lab's director, Dr. Jill James, to be called out of town to consult on that outbreak, and that she would not be returning for several weeks. Drs. James and Bradstreet previously had collaborated on other projects. According to Dr. Bradstreet, he would be unable to formulate an expert medical opinion regarding causation specific to Michael's injuries until the results of the genetic test results were received from Dr. James' lab.
Respondents filed on 29 October 2004 a Motion for Continuance or, in the Alternative, Dismissal of All Claims Without Prejudice. The parties came before the court on 10 November 2004 to discuss the discovery issues raised by the motion. The court, after hearing from all parties, concluded that neither a continuance nor dismissal was appropriate, given the time constraints imposed by the court's docket rotation system. Judge Berger instead urged that the parties "endeavor to agree upon a Third Amended Scheduling Order." If the parties could not settle upon a mutually agreeable schedule, they each were to provide the court with a proposed order. The parties were unable to collaborate successfully on a unified, new scheduling order, citing disputes over specific dates for deposition of Respondents' expert witnesses. They submitted competing proposals on 17 November 2004.
The Circuit Court entered a Third Amended Scheduling on 19 November 2004. The dates for dispositive motions, pre-trial conference, and the trial itself remained unchanged. The deadline for completion of all fact discovery, including depositions of fact witnesses and full resolution of disputes, was delayed until 31 December 2004. Of particular relevance to the posture of the case as it comes to us, the court ordered further that Dr. Bradstreet be made available for initial deposition on 19 November 2004. According to the court,
[a]ppropriate topics of inquiry for this deposition, [were to] include, but not be limited to, the nature and purpose of the GST [glutathione-S-transferase, a...
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