GREENE, J.
In the present case, we are called to decide whether apportionment of damages is appropriate in the wrongful death and asbestos litigation context, and whether the "use plaintiffs"
This case is an appeal from judgments in favor of plaintiffs and use plaintiffs in four asbestos cases that were consolidated for trial in Baltimore City. All of the plaintiffs were separately awarded damages for their wrongful death claims against Wallace & Gale Asbestos Settlement Trust ("WGAST"). The four decedents who are the subject of these consolidated cases, Levester James ("James"), Mayso A. Lawrence Sr. ("Lawrence"), Rufus E. Carter ("Carter"), and Roger C. Hewitt, Sr. ("Hewitt"), all worked for various companies (most frequently at Bethlehem Steel and American Smelting and Refining Company) where Wallace & Gale, Co. ("W & G") installed asbestos-containing products. W & G was a Baltimore-based insulation and roofing contractor that was established in 1881.
W & G initially handled all asbestos claims filed against it until W & G filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code on November 16, 1985. Thereafter, the United States Bankruptcy Court for the District of Maryland entered an order affirming the Fourth Amended Joint Plan of Reorganization. This created WGAST, an entity that assumed liability for asbestos claims against W & G. On November 2, 2010, the United States Bankruptcy Court for the District of Maryland approved the "Second Amended and Restated Asbestos BI Claims Resolution Procedures." In part, the procedures provided that claims may be brought against WGAST by either December 28, 2010, or the statute of limitations date, whichever is later. Based on the dates when the four complaints were amended to add wrongful death counts, the last dates to bring claims under this order were December 28, 2010 in the Carter and James cases, February 21, 2011 in the Lawrence case, and July 24, 2012 in the Hewitt case.
Carter worked as a laborer and crane operator at the Baltimore-based copper refinery American Smelting and Refining Company ("ASARCO") from 1966 to 1975. He was exposed to asbestos from insulation applied to pipes. Carter died from lung cancer in November 2003. On February 17, 2006, Johanna Carter, as personal representative of Carter's estate, and Sonia, Carter's surviving daughter, filed an amended short form complaint against numerous defendants, claiming loss of consortium, negligence (survival), strict liability (survival), conspiracy, fraud, and wrongful death. The complaint listed Carter's other children as use plaintiffs: Kenneth, Rufus Jr., and Natasha. Thereafter, Sonia filed a Notice to Substitute Parties, advising that Johanna had been removed as personal representative and Sonia had been appointed as successor because Johanna's marriage to Carter had been previously annulled.
James was a laborer in ASARCO's tank room from 1968 to 1972, where he was
Lawrence worked as a laborer at ASARCO from 1968 to 1969 and in Bethlehem Steel's "68-inch hot strip mill" at Sparrows Point from 1970 to 1979, where he was exposed to asbestos from pipe insulation. Lawrence died from lung cancer on October 8, 2007, at age 65. On February 21, 2008, Arthur L. Drager, as personal representative of Lawrence's estate and Bernice, Lawrence's widow, filed a short form asbestos complaint against numerous defendants, including WGAST, alleging negligence (survival), strict liability (survival), conspiracy, fraud, and wrongful death. Lawrence's seven children, Mayso Jr., Tyrone, Cephas, Sean, Elaine, Phaedra, and Tanesha, were named in the complaint as use plaintiffs.
Hewitt worked as a laborer, mechanic steamfitter, and pipefitter at the Pennsylvania Railroad from 1943 to 1944, and as a laborer and crane operator at Bethlehem Steel from 1946 to 1978, where he was exposed to asbestos in pipe insulation supplied by W & G. Hewitt was a long-time smoker, smoking half a pack to a full pack of cigarettes every day for 65 years. He died as a result of complications from lung cancer on December 20, 2008, at age 81. On September 7, 2006, prior to his death, Hewitt and his wife, Annette, filed a short form asbestos complaint against numerous defendants, alleging that Hewitt had been diagnosed with asbestosis and asbestos-related diseases in April 2006. On January 5, 2007, plaintiffs filed an Amendment by interlineation, adding WGAST as a defendant. Following Hewitt's death, Roger Jr., Hewitt's son, filed a Notice to Substitute Parties, notifying the Circuit Court for Baltimore City and the parties that he, as personal representative of Hewitt's estate, was added as a party plaintiff in the survival action. On July 24, 2009, Annette and Roger Jr. filed an amended short form complaint, incorporating the counts set forth in the original complaint (loss of consortium, negligence (survival), strict liability (survival), conspiracy, and fraud) and added a count alleging wrongful death. Hewitt's daughters, Penny and Idalyn, were named in the amended complaint as use plaintiffs. Roger Jr. also filed an "Amendment by Interlineation to Add Disease Process," alleging that Hewitt also suffered from lung cancer causally connected to his exposure to asbestos and asbestos products.
On November 10, 2009, the Circuit Court for Baltimore City consolidated ten asbestos cases for trial, including the four at issue in this appeal. The trial was scheduled to begin on January 18, 2011. According to the scheduling order, plaintiffs were required to produce all fact witnesses for deposition by September 15, 2010, but this did not occur. Plaintiffs allege that it is typical of all asbestos cases tried in Baltimore City to defer all expert and family member depositions until the completion of settlement negotiations, and that this process was the reason for the delay in producing such fact witnesses. On January 3, 2011, WGAST filed two motions to exclude all fact and expert witnesses. The trial judge denied both motions
On January 17, 2011, the day before the scheduled trial date, the trial judge directed the plaintiffs to provide discovery and participate in depositions prior to the commencement of trial, which was continued to February 9, 2011. During that time, WGAST conducted thirty-one depositions, including depositions of experts, party plaintiffs, and individuals identified as use plaintiffs. A fifteen-day jury trial took place between February 9 and March 2, 2011, and the jury ultimately returned verdicts in favor of the plaintiffs, including those listed as use plaintiffs.
Hewitt worked at Bethlehem Steel for over thirty years and smoked half a pack to a pack of cigarettes a day. He was diagnosed with lung cancer in October 2008 and died two months later. During trial, Dr. Steven Zimmet testified that asbestos exposure was a substantial contributing factor to Hewitt's lung cancer and that smoking was also a cause of Hewitt's lung cancer. Dr. Zimmet further testified that he could not differentiate between the two causes because the two exposures are "not just additive, they are synergistic
WGAST's counsel then filed an offer of proof concerning Dr. Kerby's testimony. It provided that Dr. Kerby was of the opinion that Hewitt's occupational exposure
The Circuit Court judge also declined to give WGAST's requested jury instruction on apportionment of damages, which read:
The trial judge stated in response:
The court also declined to distribute to the jury WGAST's proposed verdict sheets, which asked the jury to determine the percentage of compensatory damages that were related to Hewitt's cigarette smoking and to his asbestos exposure, and whether the jury could, by a preponderance of the evidence, apportion damages between the two different causes.
On December 20, 2010, prior to the commencement of trial, the plaintiffs filed their proposed voir dire. Question two asked the following regarding the plaintiffs: "Is any member of the panel or any member of your immediate family, or close circle of friends related to or otherwise acquainted with the plaintiffs" and then proceeded to list all 25 interested parties, including the decedents, party plaintiffs, and use plaintiffs. During opening statements, plaintiffs' counsel referred to the use plaintiffs as "family members" and the four decedents as "plaintiffs." Most of the use plaintiffs testified and were subject to cross-examination by WGAST's counsel.
After plaintiffs concluded their case, WGAST filed a Motion for Directed Verdict, arguing that the statute of limitations had run and that, therefore, the use plaintiffs in the James and Carter cases were precluded from joining the action as required by Maryland Rule 15-1001. In an oral motion for judgment "against all the plaintiffs' cases on all counts," WGAST's counsel argued that all use plaintiffs failed to join as necessary parties and that their identification in the complaint was only to provide them with notice of the action. The court denied the motion for judgment with leave for WGAST's counsel to renew the motion at the conclusion of the presentation
The jury returned verdicts in favor of the plaintiffs and use plaintiffs in the following amounts: (1) Carter case: $2,017,302.50; (2) James case: $2,035,684.71; (3) Lawrence case: $2,930,532.09; and (4) Hewitt case: $2,686,686.07. On May 12, 2011, the Circuit Court entered orders in the four cases, reducing the jury verdicts after application of the cap on non-economic damages, bankruptcy settlement payments, and joint tortfeasor credit for appellant's cross-claims against another defendant (i.e., pro rata share allocation). The jury verdicts were reduced to the following judgments:
(1) The Carter case: Survival: $499,953.41(total) Wrongful Death: $476,250.00 (total) Plaintiff Sonia Carter: $119,062.50 Use Plaintiff Rufus Carter, Jr.: $119,062.50 Use Plaintiff Kenneth Carter: $119,062.50 Use Plaintiff Natasha Sloan: $119,062.50Total Judgment: $976,203.41 (2) The James case: Survival: $503,959.39 (total) Wrongful Death: $476,250.50 (total) Use Plaintiff Katherine James: $238,125.50 Use Plaintiff Monica James: $119,062.50 Use Plaintiff Kevin James: $119,062.50Total Judgment: $980,209.89 (3) The Lawrence case: Survival: $261,371.24 (total) Wrongful Death: $521,250.00 (total) Plaintiff Bernice Lawrence: $108,593.74 Use Plaintiff Elaine McPherson: $32,578.13 Use Plaintiff Mayso Lawrence, Jr.: $32,578.13 Use Plaintiff Phaedra Bailey: $32,578.13 Use Plaintiff Tyrone Lawrence: $32,578.13 Use Plaintiff Cephus Lawrence: $32,578.13 Use Plaintiff Sean Lawrence: $32,578.13 Use Plaintiff Tanesha Lawrence: $217,187.48Total Judgment: $782,621.24 (4) The Hewitt case: Survival: $687,394.00 (total) Loss of Consortium: $169,050.97 (total) Wrongful Death: $469,050.98 (total) Plaintiff Annette Hewitt: $172,808.26
Plaintiff Roger C. Hewitt, Jr.: $98,747.57 Use Plaintiff Idalyn Williams: $98,747.57 Use Plaintiff Penny Hewitt: $98,747.57 Total Judgment: $1,325,495.95
Following the Circuit Court's rendering of recorded judgments, WGAST's counsel filed a Motion for Judgment Notwithstanding the Verdict, a Motion for New Trial, and a Motion for a Remittitur (the "posttrial motion hearing"), again raising the issues of apportionment in the Hewitt case and the status of the use plaintiffs in all cases. The court held a hearing on the post-trial motion on July 21, 2011. After hearing arguments from both sides, the trial judge ruled from the bench on the apportionment issue, stating:
As to the issue of joinder of the use plaintiffs, following arguments from both parties, the trial judge stated that he was going to delay his decision on "this mess with the use plaintiffs." On October 13, 2011, the Circuit Court held a brief hearing on this sole outstanding issue, where the trial judge decided that "there is no question that use plaintiffs have to be included. They're supposed to be included. They're necessary parties." He further opined:
As predicted by the trial judge, WGAST noted a timely appeal. In a reported opinion, the Court of Special Appeals held in pertinent part that (1) the failure of the use plaintiffs to join the action as party plaintiffs before the expiration of the wrongful death three year limitations period precluded the use plaintiffs from recovering damages; and (2) the Circuit Court erred when it refused to instruct the jury as to apportionment of damages and when it excluded expert's testimony on apportionment. Wallace & Gale Asbestos Settlement Trust v. Carter, 211 Md.App. 488, 65 A.3d 749 (2013). This Court granted certiorari, Carter v. Wallace & Gale Asbestos Settlement Trust, 434 Md. 311, 75 A.3d 317 (2013), to address the following questions:
In the instant matter and pertinent to the issues on appeal, the Court of Special Appeals held that (1) as to the Hewitt case, the trial judge erred when he rejected the argument of allocation of damages according to the respective harm caused by smoking and exposure to asbestos; and (2) as to all four consolidated cases, the trial judge also erred in allowing substantial damage awards to 15 use plaintiffs who never joined in the action prior to the verdict.
As to the first issue, the Court of Special Appeals concluded that apportionment of damages between several causes of an injury is appropriate in some circumstances, relying in large part on the Superior Court of New Jersey's opinion in Dafler v. Raymark Industries, Inc., 259 N.J.Super. 17, 611 A.2d 136 (Ct.App.Div.1992). At issue in Dafler was whether damages for plaintiff's lung cancer could be apportioned between an asbestos producer defendant and the cigarette smoker plaintiff. The court held that there was reasonable factual support for the jury's finding that 70% of plaintiff's lung cancer was caused by cigarette smoking and 30% was caused by his exposure to asbestos. Dafler, 259 N.J.Super. at 33-34, 611 A.2d at 145-46.
Dafler is not binding on this Court. The Court of Special Appeals acknowledged this, but it also did not appreciate that New Jersey law is grounded in comparative negligence principles (whereas Maryland law is grounded in contributory negligence principles). Although the Court of Special Appeals attempted to dispel this major difference in the two states' tort laws by stating that the New Jersey Superior Court's decision in Dafler was not based in comparative negligence principles, we disagree. The New Jersey opinion makes this point for us: "As we well know, apportionment is also consistent with the principles of the Comparative Negligence Act." Dafler, 259 N.J.Super. at 35, 611 A.2d at 145. The New Jersey appellate court affirmed the jury's finding
We disagree with the Court of Special Appeals's reliance on New Jersey case law and prefer to be guided by our own case law and principles previously relied upon by this state's appellate courts. In a situation such as this, we shall hold that apportionment of damages is appropriate only where the injury is reasonably divisible and where there are two or more causes of the injury. We explain this conclusion in detail below.
As to the question of whether the use plaintiffs were formally required to join in this case, the intermediate appellate court concluded that the use plaintiffs were not converted to party plaintiffs simply because they were occasionally identified as "plaintiffs," they participated in pretrial depositions, and they testified at trial. Carter, 211 Md.App. at 528, 65 A.3d at 773. Further, the court stated that because the use plaintiffs did not formally join the action by filing some type of pleading and did not timely move to join the action, all use plaintiffs were barred from doing so as the statute of limitations in each of the cases had expired. Id. Based on the later date of either December 28, 2010, or the date when the complaints were amended to add wrongful death counts,
Again, we disagree with the intermediate appellate court in this regard. Notably, at the times of the filing of the amended complaints and subsequent trial in the present case, Md. Rule 15-1001
Following a determination that a defendant's conduct was a substantial factor in causing injury to a plaintiff,
A question may arise as to whether only a portion of the total damage award may properly be assigned to the defendant. This is the inquiry at bar. "The question is primarily not one of the fact of causation, but of the feasibility and practical convenience of splitting up the total harm into separate parts which may be attributed to each of two or more causes." W. Page Keeton et al., Prosser and Keeton on Torts § 52, at 345 (5th ed. 1984). Based on our review of Maryland case law and its application of the Restatement (Second) of Torts, we conclude that apportionment of damages is appropriate only where the injury in question is reasonably divisible among multiple causes.
In 2002, the Court of Special Appeals adopted the Restatement (Second) of Torts § 433A. Section 433A specifies the circumstances when apportionment of damages is appropriate. See Mayer v. N. Arundel Hosp. Assoc., 145 Md.App. 235, 249, 802 A.2d 483, 491 (2002). Restatement (Second) of Torts § 433A states that:
In other words, apportionment of damages is appropriate where the injury is divisible. Prosser and Keeton on Torts illustrates the difference between a divisible and indivisible injury:
§ 52, at 345-46 (5th ed. 1984) (citations omitted).
The concept of joint and several liability is helpful to explain further why a defendant should be held liable for the entirety of an injury, even when there may be multiple contributing causes. The analysis below is based on a concurrent tortfeasor situation, where a tortfeasor acts independently from — and concurrently with — other individuals to produce an indivisible injury to a plaintiff. See Consumer Prot. Div. v. Morgan, 387 Md. 125, 181-82, 874 A.2d 919, 952 (2005) (explaining the difference between tortfeasors acting in concert and concurrent tortfeasors as they relate to joint and several liability); Morgan v. Cohen, 309 Md. 304, 311-12, 523 A.2d 1003, 1006 (1987) (explaining the concept of concurrent tortfeasors and how they relate to the common law concept of "joint tortfeasors"). If a tobacco company could have been joined as a joint tortfeasor in this litigation, we could have had a concurrent tortfeasor scenario. In Consumer Protection Division v. Morgan, this Court explained:
387 Md. at 178-79, 874 A.2d at 950-51 (citing Cohen, 309 Md. at 316, 523 A.2d at 1008; Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 260, 99 S.Ct. 2753, 2756, 61 L.Ed.2d 521, 527 (1979); Mitchell v. Gilson, 233 Ga. 453, 211 S.E.2d 744, 745 (1975); Ruud v. Grimm, 252 Iowa 1266, 110 N.W.2d 321, 324 (1961); Palleschi v. Palleschi, 704 A.2d 383, 385 n. 3 (Me.1998); D & W Jones, Inc. v. Collier,
This Court, in Morgan, continued:
Morgan, 387 Md. at 182, 874 A.2d at 952 (quoting Woods v. Cole, 181 Ill.2d 512, 230 Ill.Dec. 204, 693 N.E.2d 333, 336-37 (1998)).
In this same vein, we look to the United States Supreme Court for guidance. In a maritime tort law case where the plaintiff longshoreman, the defendant shipowner, and the non-party stevedore were all negligent actors, the Court relied on the common law to support the position that "an injured party [is allowed] to sue a tortfeasor for the full amount of damages for an indivisible injury that the tortfeasor's negligence was a substantial factor in causing, even if the concurrent negligence of others contributed to the incident." Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 260, 99 S.Ct. 2753, 2757, 61 L.Ed.2d 521, 527 (1979). The situation in Edmonds can be analogized to the present case: plaintiff Hewitt added to his injury by smoking cigarettes, defendant WGAST substantially contributed to the harm, and an unidentified non-party cigarette company also contributed to Hewitt's injury. Plaintiff Hewitt, under the common law, is allowed to sue WGAST for the full amount of damages for an indivisible injury that WGAST was a substantial factor in causing, even if a cigarette company's negligence contributed to the harm.
To be sure, if an injury is indivisible, any tortfeasor joined in the litigation whose conduct was a substantial factor in causing the plaintiff's injury would be legally responsible for the entirety of the plaintiff's damages. Only if the harm is reasonably divisible is the issue of apportionment a question of fact for the jury or a basis for a Frye-Reed
We therefore turn to the issue at hand: whether Hewitt's death from lung cancer was an indivisible injury. First, we note that the Court of Special Appeals has held previously that "[a] single injury or harm may be divisible or indivisible.... Some injuries are inherently or obviously indivisible, e.g., death or, generally, a traumatic injury to a particular part of the body." Mayer, 145 Md.App. at 250, 802 A.2d at 492; see also Restatement (Second) of Torts § 433A cmt. i ("Certain kinds of harm, by their very nature, are normally incapable of any logical, reasonable, or practical division. Death is that kind of harm, since it is impossible, except upon a purely arbitrary basis for the purpose of accomplishing the result, to say that one man has caused half of it and another the rest."); W. Page Keeton et al., Prosser and Keeton on Torts § 52, at 347 (5th ed. 1984) ("Certain results, by their very nature, are obviously incapable of any reasonable or practical division. Death is such a result, and so is a broken leg or any single wound, the destruction of a house by fire, or the sinking of a barge."); Azure, 596 P.2d at 470 (concluding that death would make the ultimate harm theoretically indivisible). Although we consider these propositions to be conclusive, we need not rely on these statements alone to support the holding that Hewitt's harm was indivisible. We look, therefore, to the nature of the harm to determine if it was actually indivisible, as Hewitt's beneficiaries claim.
Plaintiffs rely on the fact that asbestos exposure and smoking have a synergistic effect, which makes the harm indivisible. At trial, Dr. Zimmet, an expert witness for Hewitt, testified as to what synergy is in this context:
Commentators also indicate that
George A. Peters & Barbara J. Peters, Asbestos Pathogenesis and Litigation, Vol. 13 of the Sourcebook on Asbestos Diseases: Medical, Legal, and Technical Aspects 149 (1996). What we take from that language is that while there are many variables that go into the causal effects of tobacco and asbestos exposure, there is evidence that the effect is multiplicative in nature, which we are satisfied is indicative of an indivisible injury.
Based on the evidence presented at trial, there was sufficient evidence for the trial judge to conclude that Hewitt's death caused by lung cancer was an indivisible injury, incapable of apportionment. WGAST admitted that Hewitt had asbestosis, which contributed to his lung cancer and subsequent death. Although witnesses on both sides testified that Hewitt's smoking and exposure to asbestos were both factors in causing the harm to him, what we are focused on here is the ultimate harmful result of WGAST's conduct, namely, Hewitt's death. Our intermediate appellate court, courts in other states, and leading commentators Prosser & Keeton conclude, as we do, that death is an indivisible injury incapable of apportionment.
Last year, this Court revisited the question of whether Maryland should judicially abrogate the common law principle of contributory negligence in favor of the more popular comparative negligence doctrine. Coleman v. Soccer Ass'n of Columbia, 432 Md. 679, 69 A.3d 1149 (2013). While this Court declined to do so, we find language in the dissenting opinion, which argues for the adoption of comparative negligence, enlightening. Writing for the dissent, Judge Harrell explained that "a system of comparative negligence [is one] which apportions damages between a negligent plaintiff and a negligent defendant according to each party's relative degree of fault. Thus, under a comparative negligence system, a plaintiff's contributory negligence does not bar recovery, but rather reduces proportionately his or her damages in relation to his or her degree of fault." Coleman v. Soccer Ass'n of Columbia, 432 Md. 679, 699, 69 A.3d 1149, 1160-61 (2013) (Harrell, J., dissenting).
This is precisely what WGAST is proposing we do here. Practically speaking, because there is no other tortfeasor joined in the case, WGAST hopes to apportion 75% to 90% of the damages to the plaintiff
We further conclude that the Court of Special Appeals's contention that its holding (in support of apportionment of damages) is based on causation principles, rather than comparative negligence, and therefore sound in Maryland law, is not persuasive. The intermediate appellate court stated:
Carter, 211 Md.App. at 537, 65 A.3d at 778-79. Stating that "[c]omparative fault or comparative negligence involves a determination of the relative percentages of fault between joint tortfeasors," id., ignores the most simple form of comparative negligence, "which apportions damages between a negligent plaintiff and a negligent defendant according to each party's relative degree of fault," Coleman, 432 Md. at 699, 69 A.3d at 1160 (Harrell, J., dissenting). Comparative negligence not only allocates fault between tortfeasors, but allocates fault between plaintiffs and defendants, as would be the situation here. Again, allocation of fault between plaintiffs and defendants is contrary to this state's longstanding principles of contributory negligence.
Because Hewitt's injury was indivisible as a matter of law and WGAST was attempting to attribute a portion of the damages to the plaintiff for his smoking history/tobacco exposure, we conclude that the trial judge did not abuse his discretion by excluding Dr. Kerby's testimony concerning apportionment of damages. To admit into evidence Dr. Kerby's testimony with regard to apportionment of damages would have been inconsistent with Maryland law. We also point out that in Mayer, the intermediate appellate court adopted the Restatement (Second) of Torts § 434, which states in pertinent part that "[i]t is the function of the court to determine ... (b) whether the harm to the plaintiff is capable
In the present case, the trial judge carefully considered whether the harm was capable of apportionment prior to deciding to exclude Dr. Kerby's testimony on the matter. During a lengthy discussion of the viability of the apportionment of damages issue at trial, the trial judge stated that it is not the law to apportion damages between smoking and asbestos inhalation, and later asked: "How can you possibly apportion these damages? It is a wild guess." At a motions hearing following the trial, the trial judge further explained his reservations concerning Dr. Kerby's testimony:
Because the trial judge, through careful consideration, determined that Hewitt's death was incapable of apportionment, he did not abuse his discretion in determining that, as a matter of law, Dr. Kerby's testimony as it related to apportionment of damages was not admissible.
The second issue before this Court is whether the use plaintiffs are precluded from recovering damages because they did not formally join the wrongful death proceedings, and as a result are barred from doing so by the statute of limitations. To understand the genesis of the "use plaintiff" in this context, we first look to the history of the wrongful death statute. At the outset, "[t]he common law not only denied a tort recovery for injury once the tort victim had died, it also refused to recognize any new and independent cause of action in the victim's dependents or heirs for their own loss at his [or her] death." Walker v. Essex, 318 Md. 516, 522, 569 A.2d 645, 648 (1990) (quoting W. Page Keeton et al., Prosser and Keeton on Torts § 127, at 945 (5th ed. 1984)). In 1846, to counter this harsh rule, the English legislature created a cause of action for wrongful death, known as Lord Campbell's Act, which required a wrongful death suit to be brought by the executor or administrator of the estate for the use of the parties named in the complaint. Walker, 318 Md. at 522-23, 569 A.2d at 648. The purpose of Lord Campbell's Act was "to compensate the families of persons killed by the wrongful act, neglect, or default of another person[,]" and the measure of damages was based on the loss sustained by the parties on whose behalf
In 1852, Maryland adopted its wrongful death statute that had a close resemblance to Lord Campbell's Act. Id. Today, the key difference between the English statute and Maryland's Wrongful Death Act is that under the Maryland statute, "suit is brought in the name of a person entitled to recover, and to the use of all such parties who may have an interest." Walker, 318 Md. at 523, 569 A.2d at 648; see Robinson v. Lewis, 20 Md.App. 710, 714, 317 A.2d 854, 857 (1974) (explaining that wrongful death suits arising within the state must now be filed in the name of the real parties in interest, rather than in the name of the State). We note that unlike most other states, Maryland has two independent causes of action for the beneficiaries of a tort victim to bring following the victim's death: a survival action and a wrongful death action. The former is in the name of the personal representative for any claim the deceased person could have maintained during his or her lifetime and the latter claim is brought on behalf of the surviving heirs or beneficiaries for their loss resulting from the death of a spouse, parent or child. Walker, 318 Md. at 523, 569 A.2d at 648. It follows then, based on the history of the wrongful death cause of action, that a beneficiary (or a personal representative with an interest) would bring the suit for the use of the other parties in interest.
Md.Code (1973, 2006 Repl.Vol.), § 3-904 of the Courts and Judicial Proceedings Article (hereinafter § 3-904) and Md. Rule 15-1001 govern the proper procedures for a wrongful death action. Section 3-904 provides, in pertinent part:
We point out that section (f), known as the "one action rule," codifies one of the main policies underlying wrongful death statutes. This Court has explained that "the purpose of the one action rule is to protect a defendant from being vexed by several suits instituted by or on behalf of different equitable plaintiffs for the same injury, when all the parties could be joined in one proceeding." Walker, 318 Md. at 523, 569 A.2d at 648. Moreover, § 3-904(c) requires that "if a recovery or verdict is obtained in this one action, the amount recovered shall be divided among the beneficiaries in shares directed by the verdict." Id. The statute does not allow for claims to be severed, and "[a] judgment should not [be] entered in the circuit court unless it included the interests of all the known beneficiaries." Walker, 318 Md. at 524, 569 A.2d at 648.
In an attempt to decipher the state of the law regarding joinder of use plaintiffs at the time of the present trial, we discovered that the case law interpreting Md. Rule 15-1001 (governing the procedures for a wrongful death action) to be less than clear. To thoroughly explain our holding here, we must explain how this Rule has evolved, starting before the commencement of this action, and ending with the 2013 amendment to the Rule. This Court's recent opinion in University of Maryland Medical System Corp. v. Muti, 426 Md. 358, 44 A.3d 380 (2012), is the catalyst of this evolution. We therefore proceed by first explaining the law prior to Muti. We next explain the clarification and affirmative mandate imposed by the decision in Muti, and finally, we explain the 2012 amendments to Rule 15-1001, which were drafted in accordance with and as further clarification of Muti.
Prior to, and for the duration of the trial in the instant case, Md. Rule 15-1001 stated:
The conclusions drawn from the case law interpreting Rule 15-1001 (prior to Muti) can be summarized in two general propositions: (1) Maryland Rule 15-1001(b) did not require formal joinder; and (2) Maryland Rule 15-1001 was more than just a notice rule because use plaintiffs are real parties in interest whose interests must be acknowledged and protected throughout the litigation. Ace American Ins. Co. v. Williams, 418 Md. 400,
192 Md.App. at 454-55, 995 A.2d at 754-55 (emphasis added) (quotations and citations omitted).
In addition, one of the respondents in Work argued that Rule 15-1001 is simply a notice rule, and so long as use plaintiffs are properly designated as such in the complaint, the Rule is satisfied when the party plaintiffs' attorneys give the use plaintiffs notice of the action. 192 Md. App. at 460, 995 A.2d at 758. The court in Work explained that if it were to follow the theory that Rule 15-1001 was only a notice rule, once the use plaintiffs were notified of the complaint, the burden would then fall upon them to join or intervene in the wrongful death action in order to protect their interests. Id. In explicitly rejecting this theory, the court in Work stated:
Id. (quotations omitted). It can be inferred from this excerpt that plaintiffs' attorneys must have, to some as yet undefined extent, presumably acted on behalf of and represented the interests of those statutory beneficiaries entitled to damages, and that the burden to intervene did not fall on the use plaintiffs.
The following year, on March 21, 2011, this Court adopted the Court of Special Appeals's express interpretation of Rule
The first affirmative directive to use plaintiffs explaining how to join in a wrongful death action occurred in this Court's 2012 opinion in Muti. In that case, this Court undertook the task of clarifying the case law on use plaintiffs. In a section entitled "Some Considered Dicta," the majority opinion explained the standard for a named use plaintiff to join in the wrongful death action when it stated:
Muti, 426 Md. at 384, 44 A.3d at 395. See Schmidt v. Prince George's Hosp., 366 Md. 535, 551, 784 A.2d 1112, 1121 (2001) ("When a question of law is raised properly by the issues in a case and the Court supplies a deliberate expression of its opinion upon that question, such opinion is not to be regarded as obiter dictum, although the final judgment in the case may be rooted in another point also raised by the record.").
As stated previously, this "considered dicta" in Muti is the first affirmative, clear attempt to delineate what is required of use plaintiffs to formally join a wrongful death action. From Muti, we conclude that use plaintiffs who wish to assert their claim for damages in a wrongful death action must, in a "clear fashion," indicate to the court and the original parties "that they are claiming their share." This statement is followed by the proposition that "[o]rdinarily, this is done by intervening." We read this statement to mean that the Court left open for interpretation the precise manner by which a use plaintiff could clearly claim his or her share, but the typical manner is by filing a motion to intervene.
The Rules Committee closed that door with its 2012 recommendation to amend Rule 15-1001 "to implement holdings of the Court in [Muti.]" Court of Appeals Standing Committee on Rules of Practice and Procedure, Meeting Minutes of June 21, 2012, at 105. The new version of Md. Rule 15-1001, which was amended in October 2012, and adopted by this Court, effective January 1, 2013, substantially incorporated the old iteration of sections (a) and (b). The new amendments to the Rule state:
As the new language of the Rule makes quite plain, a use plaintiff is now required to file a motion to intervene in order to be joined as a party plaintiff in a wrongful death action. Therefore, the amendments to Rule 15-1001 effectively abrogate all
With the evolution of Rule 15-1001 in mind, we return to the issue at bar: whether the use plaintiffs in the instant case did enough to join in the action under the state of the law at the time of the filing of the amended complaints and through the duration of the trial, in order to maintain a claim for damages. If the use plaintiffs did not do enough to join in the litigation prior to the expiration of the three year statute of limitations, they would be barred from recovery. To summarize, the case law in existence at the time of trial interpreting § 3-904 and Rule 15-1001, which govern wrongful death suits, dictates four general propositions: (1) "the purpose of the one action rule [in § 3-904(f)] is to protect a defendant from being vexed by several suits instituted by or on behalf of different equitable plaintiffs for the same injury, when all the parties could be joined in one proceeding;" (2) if a verdict is obtained in this single proceeding, it shall be divided among all of those beneficiaries who have an interest; see Walker, 318 Md. at 523, 569 A.2d at 648; (3) Maryland Rule 15-1001(b) did not require formal joinder; and (4) Maryland Rule 15-1001 is more than just a notice rule because use plaintiffs are real parties in interest whose interests must be acknowledged and protected throughout the litigation, see Work, 192 Md.App. at 454-55, 460, 995 A.2d at 755, 758.
Under the state of the law at the time of trial here, which was prior to this Court's decision in Muti and before the latest revisions to Rule 15-1001, the use plaintiffs were real parties in interest that were not required to formally join in the proceeding in order to share in an award for damages. Absent any clear direction or requirement that formal joinder was necessary, on the facts of this case, the use plaintiffs' knowing consent to and active participation in the litigation was the functional equivalent of joinder. Moreover, when "Rule 15-1001(b) does not require formal joinder," we see no plausible way for a named use plaintiff's "interests [to] be acknowledged and protected throughout the litigation" other than to include them in the process towards judgment. See Work, 192 Md. App. at 455, 995 A.2d at 755. Indeed, the use plaintiffs' non-joinder was not fatal to their claim for damages because they were beneficiaries with a cognizable interest in the litigation. See Johnson v. Price, 191 F.Supp.2d 626, 629 (D.Md.2001) (holding that the use plaintiff had "a real, legally cognizable interest" and her rights "must be adjudicated as part of the wrongful death suit brought by her mother"). There would need to have been some other applicable law
We find this situation analogous to the facts in Hayden v. Wesner, 52 Md.App. 323, 449 A.2d 436 (1982). In that case, a complaint for damages was filed, designating the plaintiffs as "State of Maryland for the Benefit of Rose Elizabeth Wesner and Rose Elizabeth Wesner, Personal Representative of Edward Lee Morgan." Hayden, 52 Md.App. at 324, 449 A.2d at 436. Rose Wesner, the mother of the decedent, never formally joined the proceedings. After the jury returned a verdict in Mrs. Wesner's favor, the defendant-appellant thereafter objected for want of necessary parties. Hayden, 52 Md.App. at 324-25, 449 A.2d at 436-37. The intermediate appellate court held that "there was no lack of necessary parties. Mrs. Wesner, the mother of the slain child, was the party plaintiff, albeit a misdesignated one. Naming her as a `use plaintiff' instead of bringing the action in her own name amounts to no more than an error in styling rather than one of substance." Hayden, 52 Md.App. at 326, 449 A.2d at 437. The court further elaborated that "[i]t was obvious to [the trial judge], the jury, and the appellant that the real party plaintiff was the appellee, Mrs. Wesner, and the appellant acknowledges that he was not harmed, surprised, or placed at a disadvantage by the mislabeling of the declaration." Id. Rather, the defendant-appellant knew of his right to object to the failure to join Mrs. Wesner throughout the course of the trial, "but was content to lie in wait and then play `his ace in the hole' if the verdict was in favor of Mrs. Wesner or was in an amount greater than the appellant deemed proper." Hayden, 52 Md.App. at 325, 449 A.2d at 437.
This conclusion in Hayden is one dictated by fairness and is also a conclusion applicable to the case at bar: it was obvious to everyone involved in the case that the use plaintiffs were parties to the litigation, and in addition, WGAST was not surprised or disadvantaged because the use plaintiffs here did not formally join in the proceedings. Petitioners pointed to a number of facts that support these propositions: all use plaintiffs were identified in discovery, they were listed as "plaintiffs" in the proposed voir dire, most of them were deposed at the same time as the four party plaintiffs, they were introduced to the jury, all but three testified at trial and were subjected to cross-examination, and each of the use plaintiffs was listed on the verdict sheet and obtained individual awards resulting in money judgments.
We also point out that, although occurring inconsistently, the use plaintiffs were listed as plaintiffs in several of the filings, including a Motion By Interlineation to add W & G as a party defendant and in a notice of deposition. At oral argument in this Court, Petitioners' counsel asserted that all 19 plaintiffs were represented by the same law firm from at least as far back as when the cases were consolidated for trial in 2009. In response to a question in
Respondent's retort is that the use plaintiffs do not appear on the docket sheets (except as judgment recipients), counsel never entered appearances on their behalf, and no motions were ever filed to join them in the case. Respondent argues that the use plaintiffs' supposed "participation" in the proceedings does not qualify them as party plaintiffs with a right to recover damages. We disagree. It is obvious that everyone involved, including Respondent's counsel, considered the use plaintiffs to be parties to the litigation. It is particularly telling that Respondent's counsel did not object to the line of questioning employed by plaintiffs' counsel that established the use plaintiffs' claims for damages. Moreover, Respondents make no assertion of genuine surprise or genuine harm to them. We therefore hold that in this case, where use plaintiffs were named in the complaint and participated in the litigation, where it was obvious to everyone involved that they were parties claiming damages, and where WGAST was not genuinely disadvantaged by their addition to the action, the use plaintiffs were real parties in interest who were entitled to an award for damages. Prior to the expiration of the statute of limitations, the use plaintiffs had already effectively joined in the case. This is demonstrated by the fact that, prior to December 28, 2010, the earliest of the statute of limitations dates,
If we were evaluating the facts of this case under the state of the law following the filing of our opinion in Muti, but before the new amendments to Rule 15-1001 became effective, our inquiry would be whether the use plaintiffs did enough to indicate to the court and original parties in some clear fashion that they were claiming their share.
We would further emphasize that the assertion in Muti that joinder is ordinarily accomplished by intervention does not mean it is the only method, but is the recommended one in order to avoid confusion and ambiguity. Where, as here, the designated use plaintiffs fully participated in the proceedings, both the trial judge and the use plaintiffs were undoubtedly under the assumption that they had properly joined the action. It appears as though the only party not operating under this assumption was WGAST, who belatedly pointed out the problem to the court following the presentation of the plaintiffs' case in chief.
Finally, we point out that if we were evaluating the facts of this case under the state of the law following the 2012 amendments to Rule 15-1001 (effective January 1, 2013), our inquiry would be whether the use plaintiffs "file[d] a complaint or motion to intervene by the statutory deadline." Rule 15-1001(e)(2). This would be a very brief inquiry because it is clear by all accounts that the use plaintiffs did not ever formally join in the present action. Therefore, if the trial in the case at bar took place on or after January 1, 2013, the use plaintiffs would all be barred from recovery because the statute of limitations would have run long before any formal joinder occurred. That not being the case, however, we shall hold that the use plaintiffs, as real parties in interest, and as designated in the complaint filed with the court, were part of the action for purposes of the trial resulting in jury verdicts and money judgments entered in their favor.
BATTAGLIA and RAKER, JJ., concur and dissent.
I disagree with the analysis of the majority as to the apportionment issue in the Hewitt case and thus, dissent from that portion of the majority opinion. I join the majority opinion in all other respects. For the reasons explained below, pursuant to Maryland Rule 8-604(d), I would remand the Hewitt case to the circuit court for a Frye-Reed hearing to determine whether the defense expert's theory that Hewitt's injury is capable of apportionment is generally accepted in the scientific community.
I believe that the Court of Special Appeals, Judge Shirley Watts writing for the Court, got it right in its analysis that apportionment concerns causation, not comparative negligence principles. I disagree with the majority's holding that in all cases, death is an indivisible injury as a matter of law and hence, not suitable for apportionment.
Death may be indivisible as to result, but it is not per se incapable of apportionment. Many courts around the country have permitted apportionment in death cases. See e.g., Brisboy v. Fibreboard Corp., 429 Mich. 540, 418 N.W.2d 650, 655 (1988) (permitting apportionment of damages in a wrongful death action based on smoking history and asbestos exposure); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 562 A.2d 1100, 1118 (1989) (same); see also Poliseno v. General Motors Corp., 328 N.J.Super. 41, 744 A.2d 679, 687 (2000) (concluding that while death is indivisible as to result, it is capable of apportionment in terms of causation). In Maryland, the State Workers' Compensation Commission is compelled statutorily to apportion damages in workers' compensation cases involving a deceased employee. See Maryland Code (1991, 2008 Repl.Vol.) § 9-608 (noting that the "Commission shall determine the percentage that an occupational disease contributed to the death or disability of a covered employee...."). (emphasis added). In my view, a categorical rule that death is an indivisible injury incapable of apportionment speeds past an accepted principle of law: death can be capable of apportionment as to damages, but not as to fault. See Restatement (Third) of Torts: Physical and Emotional Harm § 28, cmt. d (2010) ("Death as an injury may not be divisible, but damages for death are divisible."); see also Gerald W. Boston, Toxic Apportionment: A Causation and Risk Contribution Model, 25 Envtl. L. 549, 568-69 (1995) (stating that although "comment i [to the Restatement (Second) of Torts § 443A] states that death is the quintessential indivisible harm... deaths attributable to toxic causes, as when a plaintiff dies from lung cancer brought about by the combined effects of smoking and asbestos exposure, each of the contributing causes can be compared and the harm apportioned on that basis.").
In addition to the notion that death has been held to be an indivisible injury, the majority relies improperly on the one-sided evidence presented at trial to support its conclusion. The trial court, however, failed to consider the defendant's evidence on the issue of apportionment and relied solely on the plaintiff's experts, and the trial judge's own understanding, to support its ruling rejecting apportionment. Dr. Kerby, defendant's expert, was prepared to testify to the risk assessment involved with the causes at issue: smoking and exposure to asbestos. Dr. Kerby's proffer indicates that he would have testified that "the relative risks for each [history of smoking and exposure to asbestos] to the development of [the plaintiff's] lung cancer and death therefrom is 3 to 1, cigarette smoking to asbestos." Further, he would have opined that the relative contribution
Moreover, the question of apportionment, a process although sounding in comparative negligence, is a different animal. See Mayer, 145 Md.App. at 249, 802 A.2d at 491 (noting that in the context of apportionment of damages "we are talking about causal, not fault, apportionment"); Poliseno, 328 N.J.Super. at 55-56, 744 A.2d at 687-88 (explaining the distinction between apportionment based on causation principles and fault); (Boston, supra, at 580-85) (discussing the shortcomings of utilizing comparative fault principles as a justification for apportionment of damages); see also Mayer, 145 Md.App. at 249, 802 A.2d at 491 (noting that because the plaintiff had an injury prior to the negligent act committed by the defendant, "the question becomes one of apportionment of damages"); Maryland Civil Pattern Jury Instructions 10:4 ("A person who had a particular condition before the accident may be awarded damages for the aggravation or worsening of that condition."). Judge Watts, writing for the Court of Special Appeals, set out a well-reasoned analysis as to why apportionment can be appropriate notwithstanding this Court's allegiance to contributory negligence. I quote the opinion addressing this issue, in relevant part, as follows:
I agree with the reasoning of the Court of Special Appeals that apportionment of damages is consistent with tort law in Maryland.
Because the trial court failed to conduct a Frye-Reed hearing, I would order a limited remand for an evidentiary hearing to ascertain whether the defense expert's theory that Hewitt's injury is capable of apportionment is generally accepted in the scientific community. See Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314, 333-34, 923 A.2d 939 (2007) (holding that a trial court's failure to conduct a Frye-Reed hearing is appropriate for a limited remand because it generally involves matters collateral to the substantive issues of a case and verdicts should not be vacated unnecessarily). On remand, if the trial court finds that the defense expert's methods and theories satisfy the Frye-Reed test, the trial court should vacate the judgment, order a new trial, and submit the issue of apportionment to the jury. If the court finds to the contrary, the judgment should stand. See id. at 336, 923 A.2d at 951.
Judge BATTAGLIA authorizes me to state that she joins in this concurring and dissenting opinion.
We cannot imagine a reason for asking these questions other than to establish that the use plaintiff had a claim under the Wrongful Death Statute. All of the use plaintiffs that testified were asked similar questions.
