Brooks v. Bienkowski

SALMON, Judge. We are called upon to decide whether this Court, in entertaining an appeal from a judgment entered by a circuit court in banc panel, is restricted to reviewing the record provided to that panel or whether our review is of the record that was before the trial judge, even though some of that record was not before the in banc panel. This same issue was mentioned, but not decided, in Langston v. Langston, 136 Md.App. 203, 219-22 , 764 A.2d 378 (2000), aff'd, 366 Md. 490 , 784 A.2d 1086 (2001), and Azar v. Adams, 117 Md.App. 426, 431-34 , 700 A.2d 821 (1997). We shall hold that we must review the record that was before the trial court when it entered its final judgment. ⁹⁰ Also to be decided is whether the trial court abused its discretion in denying a motion for new trial in a case in which personal injury, wrongful death, and survivorship claims were brought and where the jury found in favor of the plaintiff as to liability and awarded him some economic damages but gave him no money for (1) loss of solatium; 1 (2) the value of the household services his deceased spouse would have rendered to him had she lived; and (3) non-economic damages for plaintiffs claimed post-traumatic stress disorder.

I. UNDISPUTED FACTS This case has its origin in an accident that occurred at 5:42 a.m. on June 13, 1997, during a very heavy rainstorm. On that date, a car driven by Jonathan Brooks, struck and killed Kazimiera Bienkowski (“Mrs.Bienkowski”) near the intersection of Wellham and Cromwell Avenues in Arbutus, Maryland. Prior to the accident, Mrs. Bienkowski, aged fifty-four, and her husband, Mieczyslaw Bienkowski (“Mr.Bienkowski”), aged sixty-one, lived on Vista Avenue with their daughter and her husband. The Bienkowskis were natives of Poland who had emigrated to this county in 1993.

The two had been married for thirty-two years at the time of Mrs. Bienkowski’s death. They lived less than one block from the scene of the subject accident. On the morning of the accident, Mr. and Mrs. Bienkowski were walking to the Ferndale light rail station to catch a train, which would have taken them to Baltimore, where both worked for the Joseph A. Bank Company. The Bienkowskis’ usual route to the light rail station was to walk a short distance down Vista Avenue, take a right at the intersection of Vista and Wellham Avenues, then walk one block westbound on the sidewalk that parallels Wellham Avenue (on its north side), cross Wellham by walking southbound at the crosswalk ⁹¹ controlling the intersection of Wellham and Cromwell Avenues, then proceed to the station.

The accident happened approximately midway 2 between the intersections of Wellham and Cromwell Avenues. Wellham Avenue is a two-lane road running east and west. Both lanes are approximately eleven feet in width; the lanes are separated by a double yellow line. On both sides of the travel lanes of Wellham Avenue is a solid white line; that line is three feet from the sidewalk (hereinafter “the three-foot shoulder”).

In the vicinity of the spot where Mr. Brooks’s vehicle collided with Mrs. Bienkowski, there is no height differential between the sidewalk and any portion of Wellham Avenue. The sidewalk is four feet in width. Shortly before the accident, both Mr. and Mrs. Bienkowski were walking westbound on the sidewalk, on the north side of Wellham Avenue. According to police photographs taken within an hour of the accident, water had puddled on the sidewalk near where the accident occurred.

The parties disagree, strenuously, as to whether Mrs. Bienkowski was still on the sidewalk when she was struck by Mr. Brooks’s vehicle. Mr. Brooks was driving his 1992 Pontiac westbound on Wellham Avenue immediately prior to the accident. He, like the Bienkowskis, was very familiar with the area. A motorist approaching the accident site from the east (as Mr. Brooks did) would traverse a bridge that crosses Interstate 97; at the west end of the bridge, the area where the accident occurred comes into the driver’s view; Wellham Avenue goes down hill and curves slightly to the right, then back to the left; at the base of the hill, the roadway straightens and intersects with Vista Avenue, at which point the driver starts up a slight incline.

Wellham Avenue does not become level again until it intersects with Cromwell Avenue. Mr. Bienkowski was walking ahead of his wife when she was struck. As a consequence he did not see the collision, nor was ⁹² he struck by Mr. Brooks’s vehicle. He- did, however, hear the collision and saw his wife’s body being thrown through the air.

He ran to her, tried to give her aid and comfort, then ran to his home to get his son-in-law to help him. An ambulance was called, and the two then ran back to the scene of the accident. The ambulance arrived at 5:49 a.m. Emergency medical personnel treated a laceration to Mrs. Bienkowski’s head while she lay in the roadway, then put her in an ambulance, but Mrs. Bienkowski had no pulse and was “in full arrest” at that point.

She was taken to a nearby hospital where she was pronounced dead. Damage to Mr. Brooks’s vehicle was to the right (passenger side) front area above the right headlight. Below the headlight there was a minor scrape on the bumper; additionally, there were hood dents — one above the right headlight and another near the windshield on the right side of the hood. The accident was investigated by Anne Arundel County Police Officer C. Craig Russell, who arrived at the accident scene twenty to twenty-five minutes post accident.

Officer Russell prepared an accident investigation report in which he said, inter alia, that he could find no evidence of accident-related skid marks. Under the heading “conclusions,” the accident report reads, in part: Due to the lack of a clearly defined point of impact or other evidence which could confirm the positions of both Vehicle # 1 and Pedestrian # 1 prior to the accident, it is not possible to state with absolute certainty where the parties involved in this accident were located prior to impact. However, it can be concluded tha,t [Mrs. Bienkowski] was not on the sidewalk, therefore she had to be walking on either the shoulder or travel portion of the roadway itself. ... Officer Russell said in his report that he reached this last-mentioned conclusion for the following reasons: ⁹³ • Pedestrian # l’s husband stated he was walking on the sidewalk was uninjured and made no contact with Vehicle # 1, indicating Pedestrian # 1 could not have been walking on the sidewalk. • The point of impact between Pedestrian # 1 and Vehicle # 1 was approximately 1.1 feet in from the right side of the vehicle.

Thus eliminating the possibility of a glancing or sideswipe impact. • Due to the location of the point of impact between Vehicle # 1 and Pedestrian # 1, Vehicle # 1 would have to have been driving so far onto the shoulder (assuming Pedestrian # 1 was walking completely on the shoulder) that it would likely have struck Pedestrian # l’s husband walking on the sidewalk. • The damage to Vehicle # 1, location of injuries to Pedestrian # 1, and location of the point of impact in respect to Pedestrian # l’s final resting position, suggest Pedestrian # 1 was heading toward the south side of the roadway. • The nature and condition of the sidewalks, roadway, and Pedestrian # l’s destination, make it likely that she would cross the street somewhere between or at the intersections of Wellham Avenue and Cromwell and Vista Avenues. • The driver of Vehicle # 1 indicted [sic] he believed Pedestrian # 1 was crossing the street in a diagonal manner when he struck her. (Footnotes omitted.) The investigating officer also reached these additional (but related) conclusions: (1) Mrs. Bienkowski was struck by Mr. Brooks’s vehicle while she was in the “travel portion” of Wellham Avenue; (2) the primary cause of the accident was Mrs. Bienkowski’s “illegal position in the roadway and her failure to yield” to Mr. Brooks’s vehicle; (3) Mrs. Bienkowski’s “dark clothing” was a “major contributing factor” to the accident because wearing all black in dark or near-dark conditions made it “nearly impossible for an approaching driver to identify and recognize ... [her] until coming right up on her”; ⁹⁴ (4) Mr. Brooks’s speed, which was four to six miles over the posted thirty-mile per hour speed limit, coupled with “the heavy rain and darkness,” dictated that Mr. Brooks should, have slowed his speed; and (5) Mr. Brooks’s speed was a “contributing factor” in the accident. Mr. Bienkowski filed a three-count complaint in the Circuit Court for Anne Arundel County, claiming that the June 3, 1997, accident resulted from the sole negligence of Mr. Brooks. Count I alleged that Mr. Bienkowski was emotionally traumatized, incurred medical bills, lost wages, and suffered other injuries as a result of the accident.

Count II was a survivorship action filed by Mr. Bienkowski in his capacity as Personal Representative of Mrs. Bienkowski’s estate. He sought in Count II recompense for medical bills, conscious pain and suffering of the decedent, and funeral expenses. Mr. Bienkowski’s wrongful death claim was set forth in Count III, in which he asked for the recovery of economic damages caused by his wife’s death, as well as solatium damages.

II

THE TRIAL A jury trial was held, presided over by the Honorable Robert Heller. The trial lasted four days, and the jury deliberated for six hours on the fifth day. A significant portion of the evidence focused upon the issue of where Mrs. Bienkowski was positioned when she was struck by Mr. Brooks’s automobile. Because there were no independent eyewitnesses to the accident, each side relied upon the opinion of an accident-reconstruction expert.

The expert called by Mr. Bienkowski was Gregory M. Manning, a retired Maryland State Police officer; Mr. Brooks relied upon the expert testimony of Officer Russell. Both experts had excellent credentials, coupled with extensive experience in accident investigation and reconstruction. Both experts admitted, however, that accident reconstruction is not “an exact science.” 3 ⁹⁵ A. Testimony of Mieczyslaw Bienkowski Mr. Bienkowski, who could not speak English, testified through an interpreter. Mr. Bienkowski and his wife took the same route every morning to the train station.

To reach the station, the Bienkowskis needed, at some point, to cross Wellham Avenue, i.e., from the north to the south side. The Bienkowskis never crossed Wellham Avenue at its intersection with Vista Avenue in the six months before the accident; moreover, they never crossed Wellham Avenue between the intersections of Vista and Cromwell Avenues because it was difficult-to see oncoming traffic and because cars usually traveled at a fast speed in this area. For those reasons, the two routinely waited until they reached the crosswalk at the intersection of Cromwell and Wellham Avenues before moving from the north to the south side of the Street. Mrs. Bienkowski carried an umbrella and was wearing Mr. Bienkowski’s coat when the accident occurred.

The coat reached almost to her ankles. Shortly before the accident, Mr. Bienkowski was walking on the sidewalk (parallel to Wellham Avenue), behind his wife, but at a faster pace. He caught up with his wife, moved around her on her right side, and passed her by walking on the grass. When he was approximately seven meters (roughly twenty-three feet) in front of his wife, and as he was stepping back onto the sidewalk from the grass, he heard a crash and saw his wife and a car go by.

The witness did not say how far either the car or his wife’s body was from him when he saw them pass. At the time of the accident, and at the time of trial, Mr. Bienkowski suffered from asthma and coronary problems. He was severely traumatized by the accident, and as a consequence, he was unable to work for about a month afterward. He compared the effect of losing his wife with losing his hands (“like cutting off his hands”).

In his words, “she knew English, and she could take care of everything.” Defense counsel did not cross-examine. ⁹⁶ B. Statements Given by Mr. Brooks to Officer Russell Within one hour of the accident, Mr. Brooks wrote the follbwing statement: I was traveling west on Wellham Avenue at approximately 5:45 a.m. right before I approached Cromwell Avenue. I struck a female pedestrian. The accident was over before I knew it happened. The pedestrian was in front of my car right out of nowhere.

He told Officer Russell, orally, that he thought Mrs. Bienkowski “was crossing the road from his right to his left and that she walked out in front of his car.” He also said that he believed that he was driving “about thirty-five miles per hour” at the time of the accident. On July 5, 1997, Mr. Brooks was re-interviewed by Officer Russell. He told the officer that at the time of the accident “it was raining very heavily and he believed” Mrs. Bienkowski “was crossing the street, but in a diagonal fashion and going from the comer of Vista and Wellham Avenues to the comer of Cromwell and Wellham Avenues.” When asked how fast he was going, he estimated his speed at approximately “thirty-six miles per hour.” C. Mr. Brooks’s Trial Testimony Mr. Brooks testified that he left his home on Wellham Avenue about two minutes before the accident. He was on his way to work at the O’Malley Senior Center in Odenton, Maryland, and was due there at six o’clock.

It was unusual to see anyone walking on Wellham Avenue at that hour of the morning. He was traveling at approximately thirty-five miles per hour, looking ahead, when he saw a “flash” — “like a light shining on metal kind of flash” — in front of his car for a “split second” before he struck Mrs. Bienkowski. He had no time to apply his brakes or steer to the left prior to impact. After the collision, he applied “medium” brake pressure and came to a stop entirely in the westbound lane of Wellham Avenue at its intersection with Cromwell Avenue. ⁹⁷ Mr. Brooks returned to the scene and saw Mr. Bienkowski, in the roadway, cradling his wife in his arms.

A man, who said his name was “Mike,” arrived. The stranger said that he “almost hit” Mrs. Bienkowski (who was still laying in the roadway) and suggested that “you might want to move your car because somebody is going to hit it.” Mr. Brooks followed the suggestion and parked his car on Cromwell Avenue and then continued to wait for the arrival of the police. Mr. Brooks denied crossing over the white line onto the shoulder at any time before impact. He also denied swerving to the left either immediately before or after the impact.

On cross-examination Mr. Brooks admitted that at the time of the accident visibility was very poor due to “torrential” rainfall. He said the yellow center line on the roadway was visible and that he was concentrating on the roadway ahead of him at the time of impact. He did not remember whether the white line demarcating the three-foot shoulder was visible. D. Testimony of Gregory Manning Mr. Manning was a Maryland State Police officer from 1974 to 1984.

During that period, he regularly investigated and reconstructed accidents. He has been employed in the private sector in the field of accident investigation and reconstruction since 1984. While in the private sector, he has investigated accidents in twenty-nine states and five foreign countries. He has testified as an expert numerous times in Maryland.

He also testified as an expert in eight other states and in the District of Columbia. He is a member and a co-founder of the National Association of Professional Accident Reconstructionists (“NAPARS”). Mr. Manning visited the scene of the accident for the first time on April 8, 2000, which was exactly thirty-four months after Mrs. Bienkowski was killed. He studied the scene of the accident, took measurements, and, prior to testifying, reviewed a great deal of material connected with this case. 4 ⁹⁸ Despite the mass of material reviewed, the central basis for Mr. Manning’s expert opinion was founded upon (1) a diagram prepared by Officer Russell; (2) reports from ambulance personnel and the funeral director who prepared Mrs. Bienkowski’s body for burial, which showed that the major trauma was to the decedent’s buttock and forehead areas; (3) photographs of Mr. Brooks’s automobile showing the damage caused by the subject accident; (4) photographs of the accident scene taken by Officer Russell that depicted the post-impact position of Mrs. Bienkowski’s shoes 5 and other articles of personal property Mrs. Bienkowski was carrying; and (5) photographs of the scene taken by Officer Russell showing three tire marks that the witness believed were highly significant.

In forming his opinion, Mr. Manning gave no credence to Mr. Brooks’s deposition testimony, except that he did assume that Mr. Brooks’s vehicle was traveling westbound at approximately thirty-five miles per hour at the time of impact. Moreover, in arriving at his opinion, Mr. Manning did not ⁹⁹ consider Mr. Bienkowski’s testimony that he was about seven meters in front of the decedent when he heard the impact. In Mr. Manning’s expert opinion, Mr. Brooks’s vehicle left the travel portion of Wellham Avenue and proceeded an unknown distance westbound on the sidewalk, whereupon his vehicle struck Mrs. Bienkowski from the rear; the striking vehicle then proceeded forward at the rate of 51.23 feet per second for three-fourths of a second (driver’s reaction time), then swerved left at an 18.7 degree angle; as the driver steered left, Mrs. Bienkowski rolled forward on the hood and to the right and fell off the car onto the street and slid to her position of rest in the middle of Wellham Avenue; Mr. Brooks’s car then proceeded across the center line onto the south side of Wellham Avenue and came to a rest there. At deposition, Mr. Manning estimated that Mr. Brooks swerved left at a 35 degree angle — not at the lesser angle he testified to in court.

When Mrs. Bienkowski was struck, she was carrying her lunch, containing a sandwich, an apple, and other food. She was also carrying a thermos bottle and an umbrella. These items scattered across the roadway by the force of the impact. The debris field left by these items was consistent with the witness’s opinion as to the path of the striking motor vehicle described above.

The witness discussed the possibility that the impact occurred in the travel portion of Wellham Avenue and rejected that possibility as he did the possibility that Mr. Brooks drove straight forward after the impact. According to Mr. Manning, if Mr. Brooks had driven straight forward, then Mrs. Bienkowski’s body would not have ended up in the center of Wellham Avenue. The witness established the point of impact by scrutinizing Exhibit 8(h), a photograph taken by Officer Russell on the morning of the accident. Exhibit 8(h) showed a circular mark on the sidewalk.

Mr. Manning opined that the circular mark was left by Mr. Brooks’s vehicle at the point it struck Mrs. Bienkowski. The centrality of that tire mark to the establish ¹⁰⁰ ment' of the point of impact was shown by the following question and answer: Q. [MR. BROOKS’S COUNSEL:] ... [I]sn’t it a fact that much of your opinion that you have expressed today, namely that Mr. Brooks went up on the sidewalk at some unknown point, traveled for some unknown distance, struck Mrs. Bienkowski, and veered off to the left in such a way that he did not hit Mr. Bienkowski, is predicated upon what you see as tire marks in the sidewalk in [Exhibit 8(h) ], correct, the semicircular [mark], I believe you described it, tire marks? A. [MR.

MANNING:] That’s right. And the absence of debris to the left of it. The witness’s opinion as to the post-impact path of Mr. Brooks’s vehicle was based upon a tire mark shown on Plaintiffs Exhibit 8(r). The mark is near the white (three-foot shoulder) line.

That mark was made by a tire turned at an 18.5 degree angle. 6 The witness opined that this mark was left by Mr. Brooks’s vehicle. Additionally, the witness saw in Exhibit 8(r) a tread mark on the yellow center line of Wellham Avenue. That tread mark was also left by Mr. Brooks’s Pontiac Sunbird, according to Mr. Manning. On cross-examination, Mr. Manning admitted that from the photographs he could not determine the type of car that had left the aforementioned three tire marks, nor could he determine in what direction- the vehicle that left the mark was traveling.

Finally, from the tire marks alone, he could not tell when the mark had been left on the highway. He stressed, however, that the marks shown on the photographs, -when viewed in conjunction with the debris field left by the impact, persuaded him, to a reasonable degree of scientific certainty, that the tire marks were those of Mr. Brooks’s vehicle. ¹⁰¹ E. Testimony of C. Gregory Russell Officer Russell has been employed in the traffic section of the Anne Arundel Police Department since 1990. His primary job responsibility is to investigate fatal and other serious accidents. The bulk of his duties are in the field of accident investigation and reconstruction.

An accident reconstruction usually takes him between forty and a hundred hours. He has personally reconstructed eighty to a hundred accidents and participated in the reconstruction of “probably 300” more. The witness has been qualified as an expert witness in the courts of Anne Arundel and three other Maryland counties. Since 1994, he has been certified as a qualified accident reconstructionist by the Accident Accreditation Commission for Traffic Accident Reconstructionists (AACTAR), a nonprofit organization that tests and certifies accident reconstructionists.

When Officer Russell arrived at the accident scene, Mrs. Bienkowski’s body had been removed to the hospital. He established that her body ended up in the middle of the roadway based upon what he was told by a police officer at the scene who had observed the body, coupled with the fact that he saw both blood on the roadway and gauze pads used by the paramedics near the center lane. After photographing and diagraming the accident scene, Officer Russell went to the hospital where he viewed Mrs. Bienkowski’s body and saw that she had two broken legs. This was obvious because her legs had “an unnatural bend.” He also observed a cut on the side of her right leg due, “apparently,” to having been “impacted by the bumper” of Mr. Brooks’s car.

He also saw a horizontal cut on her pant leg. After viewing Mrs. Bienkowski’s body, he talked to Mr. Bienkowski by using a “middle age” white male as an interpreter. He could not recall the time of the interview, but he believed it was at approximately 8:00 a.m. on the morning of the accident. Mr. Bienkowski, although upset, was seated in a ¹⁰² chair and physically seemed to be fine at the time of the interview. 7 In Officer Russell’s opinion Mr. Brooks was traveling on Wellham Avenue in the travel portion of the roadway when Mrs. Bienkowski entered the roadway and stepped in front of Mr. Brooks’s vehicle; when she was struck, Mrs. Bienkowski’s body went onto the hood and slid to the roadway, landing near the center line.

Officer Russell conceded, as he had in his report, that in this case it was impossible to determine the exact point of impact because there were no tire marks, scuff marks from the decedent’s shoes, or other identifying marks that would demarcate the exact point' where Mrs. Bienkowski was positioned when struck. In regard to the semi-circular mark on the sidewalk, shown on Exhibit 8(h), which Mr. Manning believed to be a tire mark left by Mr. Brooks’s vehicle, Officer Russell testified that he used a “flat bed computer scanner” to show greater detail in that photograph. The computer enhancement of Exhibit 8(h) ¹⁰³ showed that the mark in question was not left by a tire. What Mr. Manning thought to be a tire mark was, in fact, clumps of grass growing in the cracks of the sidewalk.

A closeup of the photograph also showed that there was standing water on the sidewalk adjacent to where the accident occurred. 8 Officer Russell established the approximate point of impact by a study of the debris field left by the broken glass liner of Mrs. Bienkowski’s thermos bottle, along with other items she was carrying. According to the witness, the evidence “suggests strongly” that the thermos bottle’s glass lining broke upon impact with Mr. Brooks’s car, and not when the thermos bottle “hit the ground.” The approximate area of impact was shown in Officer Russell’s report as an elliptical area that, on its southmost side, is about one-third of the way into the travel lane of Wellham Avenue and, at its northmost side (i.e., to the right of the white line), near the edge of the sidewalk. He admitted that it was possible that Mrs. Bienkowski was to the right (north) of the white three-foot shoulder line at the point of impact. He nevertheless opined that Mrs. Bienkowski was attempting to walk across the westbound lane of Wellham Avenue (north to south) when struck.

He supported that opinion by computer generated diagrams showing that a person walking south, when struck by a car going west, would go onto the hood of the automobile and roll right to left (from the driver’s perspective). This would account for the body coming to rest in the middle of the roadway. According to the computer diagram — and Officer Russell’s testimony — if, as Mr. Manning theorized, Mrs. Bienkowski had been walking west and was hit by a westbound car that turned left, she would have ended up on the grass to the right of the sidewalk — not in the middle of Wellham Avenue. Furthermore, the witness testified that, if Mrs. Bienkowski was walking twenty-three feet in back of her husband, it would be “impos ¹⁰⁴ sible” for a driver to swerve in the twenty-three feet that separated the two pedestrians because, at thirty-five miles per hour, Mr. Brooks would have had to perceive the danger and reacted within one-half of one second (the perception/reaction time); the average perception/reaction time is 1.6 seconds.

Also, a computer generated diagram showed that “if [a] car is turning to the left and the pedestrian is walking away from the car then [the pedestrian’s body] will ‘effectively’ travel toward the right side of the car when struck.” F. Testimony of Witness Called to Contradict Certain Aspects of Officer Russell’s Testimony 9 Lt. Greg Novae of the Anne Arundel County Fire Department arrived at the scene of the accident at 5:49 a.m. Shortly after his arrival, he and another officer took “trauma shears” and cut the pants that Mrs. Bienkowski was wearing, from the bottom of the pants leg to the top on both sides. He examined Mrs. Bienkowski’s legs and found that there was “nothing out of the ordinary” in their appearance.

David J. Weber, the mortician who prepared Mrs. Bienkowski’s body for burial, testified that the body had “extensive bruising on the buttocks and thighs but her legs did not appear to be broken.” Alisha Janus, a friend of the Bienkowskis’ family, testified that she was present at the hospital at approximately 8:00 a.m. when Officer Russell arrived. At that point, oxygen was being administered to Mr. Bienkowski as he lay on a hospital bed. Mr. Bienkowski was crying, having an asthma attack, and was extremely upset. Despite Mr. Bienkowski’s condition, Officer Russell began to .ask him questions while Ms. Janus served as a translator.

Because of Mr. Bienkowski’s condition, she had to keep repeating the questions. After Officer Russell asked ¹⁰⁵ “four or five questions,” Ms. Janus told him that Mr. Bienkowski was “too upset to answer ... questions.” Questioning was then discontinued. Dr. Kenneth Williams, Mr. Bienkowski’s personal physician, testified that emergency room records show that Mr. Bienkowski was administered Ativan intravenously at 6:20 a.m. and again at 7:20 a.m. on the date of the accident. In the amounts given to Mr. Bienkowski, the medication would begin acting within fifteen minutes and would decrease “recall memory” for “at least eight hours.” G. Bruce Hamilton, Ph.D. Dr. Hamilton, a Professor of Economics at Johns Hopkins University, was called by plaintiff and testified that the value of the household services Mrs. Bienkowski would have provided to her husband but for the accident was $214,280.

His calculations were based upon the cost of equivalent services in the commercial market place for various chores, i.e., what it would cost a person to hire, for instance, a cook or a housekeeper to perform the services previously performed by the decedent. The study, upon which Dr. Hamilton relied, showed that in two adult households the value of services provided by a spouse in the fifty to sixty-four year age range was $9,548 per year; in the sixty-four to seventy-five year age range, the spouse performed household services worth $14,545 annually; 10 and in the seventy-five and above age range, services worth $10,817 annually are performed. The $214,230 figure was not based upon the joint life expectancy of Mr. and Mrs. Bienkowski. Instead, the calculations were made for the thirty-year period between 1997 and 2027.

For each of the thirty years, the witness used life charts to determine the likelihood that Mr. Bienkowski would still be alive. 11 For instance, in the final year, 2027, when Mr. ¹⁰⁶ Bienkowski would be ninety-one, there would be a low-percentage chance that Mr. Bienkowski would still be living; for the final year, he took that low percentage and multiplied it by the cost for services rendered. Dr. Hamilton brought with him damage calculations for 2007, 2017, and 2027. He did not, however, bring with him calculations for other years. 12 Also, by a methodology that is not here important, he estimated that Mr. Bienkowski suffered an economic loss of $20,600 due to the loss of Mrs. Bienkowski’s future income. H. Manuel Smith Mr. Smith, a defense witness, earned a Bachelor’s Degree in mathematics and economics in 1964 from the University of Massachusetts; he received a Master’s Degree in economics at Washington University in St. Louis; and he completed the doctoral program at Washington University but did not finish his dissertation and therefore does not have a doctorate in economics.

After teaching economics at Washington University and Pennsylvania State University, he took a job with the federal government where he has worked since 1970. He presently is a program analyst for the United States Department of Education. In addition, for the last twenty-three years he has had an economic consulting practice, which endeavors “to assist the court in economic analysis of ... damages” in cases similar to the present one. Based on life tables, Mr. Smith determined that, as of the date of trial, Mrs. Bienkowski had a life expectancy of 25.8 ¹⁰⁷ years; and Mr. Bienkowksi, aged sixty-four, had a life expectancy of 16.7 years.

From “various economic studies of people doing household work,” he estimated that, had she lived, Mrs. Bienkowski would have performed twenty hours of household services per week for 16.7 years. He calculated the worth of those services at six dollars per hour (roughly the average of the $5.15 minimum wage and what Mrs. Bienkowski was earning at the time of her death). He assumed a 5.1 percent annual increase in wages for 16.7 years, but this was more than offset by a 6 percent discount to account for the advantage received by getting money immediately, rather than receiving it when earned. Using this methodology, Mr. Smith calculated, “to a reasonable degree of professional certainty,” that the present value of Mrs. Bienkowski’s lost household services was $96,437.

He testified that his estimate that Mrs. Bienkowski would provide twenty hours per week in household services for 16.7 years was “liberal” and explained why: So knowing that she was going to work were she still alive today for, say, six or more years, I took a number of hours per week from nationally published data, tables, studies that I’ve looked at for women of her age and so forth, took into account that she’d be working probably close to full time, and arrived at twenty hours as an average for that sixteen-year period. Now you can say that as she got older — and don’t forget, if she was going to — she would be age seventy-four at the time that he would be close to eighty-one, at the end of his expected work life, she’s not likely to work as much around the house at age seventy-four as she might at age fifty-seven. So over this sixteen-year-period she might put in twenty-five hours a week now and twenty in five or eight years and maybe only fifteen or maybe none at all when she’s in her mid-seventies. And twenty hours a week is a pretty hefty amount of work around the house for a full-time person.

It’s three or four hours a day after working a full day. And the national studies show that women that ¹⁰⁸ age work generally less than that around the house. So I was pretty liberal in giving her twenty hours. I. The Jury Verdict The jury found that Mr. Brooks was negligent and that his negligence caused the subject accident.

The jurors also found that Mrs. Bienkowski was not guilty of contributory negligence. In regard to Mr. Bienkowski’s individual claim for personal injuries caused by the accident, the jury awarded him past medical expenses in the amount of $250.47 and past lost wages of $840. They awarded him no non-economic damages for his personal injury claim. The damages awarded to Mrs. Bienkowski’s estate were: $54 in medical expenses; $5,000 for funeral expenses, and zero dollars for the decedent’s “non-economic damages.” In regard to Mr. Bienkowksi’s wrongful death claim, the jury awarded him $20,600 for the loss of his wife’s earnings during their joint lives, which was the estimate Dr. Hamilton had provided.

The jury awarded no damages for the replacement value of Mrs. Bienkowski’s household services and no “non-economic damages,” which were defined (for purposes of the wrongful death claim) as “any damages that you assess for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, attention, advice or counsel the surviving spouse has experienced or probably will experience in the future.” All told, the award amounted to only $26,744.47. J. Motion for New Trial as to Damages Only Mr. Bienkowski filed a motion for new trial as to damages only, in which he alleged that the jury ignored, disregarded, or was confused concerning evidence presented in regard to damages, and/or the trial court’s instructions regarding damages. Also, movant asserted that “the conscience of the court” should be shocked by the fact that the jury failed to award him any economic damages for the loss of his wife’s household services, no solatium damages for the . wrongful death of his ¹⁰⁹ wife, and no non-economic damages “for his own serious and permanent injuries.” A hearing was held on the motion, after which Judge Heller took the matter under advisement. On February 6, 2001, Judge Heller filed a memorandum opinion that reviewed the procedural history of the case, some of his impressions developed at trial, and the contentions made by the parties in respect to the motion.

Judge Heller commenced his discussion by citing Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51 , 612 A.2d 1294 (1992), and Butkiewicz v. State, 127 Md.App. 412 , 732 A.2d 994 (1999), and stating that he was mindful of his responsibility to prevent a miscarriage of justice due to an improper verdict and was likewise mindful that he should not “casually overturn the verdict of the jury.” He then said that his conscious was not shocked by the jury’s damage verdict. He noted that the jury “awarded the plaintiff those damages sought by [him] with respect to all matters except non-economic damages and damages for the replacement value of Mrs. Bienkowski’s household services.” The trial judge found “no support for movant’s argument that the jury was confused about the [damage] evidence ... or confused by the court’s instructions regarding [those] damages, or that the jury ignored or disregarded the evidence and/or the [c]ourt’s instructions regarding the plaintiffs damages.” More surprising to Judge Heller than the jury’s failure to award certain damages to the movant was the fact that the jury “found in favor of plaintiff and against the defendant on liability, especially given the testimony of the reconstruction experts called by” the parties. In this regard, Judge Heller found Officer Russell “far more credible ... in both his opinions and [the] basis for [those] opinions” than the testimony of Mr. Manning. He also said, without equivocation, that he believed Mr. Manning’s testimony to be “not credible.” Judge Heller acknowledged that, while the jury was entitled to judge the credibility of all witnesses in reaching its verdict, he nevertheless was also mindful that a trial judge, in consid ¹¹⁰ ering a motion for new trial, was called upon “to evaluate the character of the testimony” produced at trial “in order to determine whether justice has been done.” Judge Heller recalled that upon hearing the jury verdict he “suspected that the jury had ... reached a compromised verdict.” Therefore, he did not believe that .it would be fair to the parties if he took at “face value” the verdict sheet as it related to liability issues and some of the damage issues while not taking at “face value” the decision of the jury to not award damages in certain categories.

Judge Heller denied the motion for new trial and in doing so concluded by noting that movant opposed the granting of a new trial as to all issues and asked the court to grant a retrial as to damages only. Judge Heller opined that a retrial as to damages only, as requested by movant, would be unfair to the defendant. K. Petition for In Banc Review Mr. Bienkowski filed a timely “Notice for In Banc Review.” In a supporting memorandum, he contended that Judge Heller abused his discretion in denying the motion for new trial. Prior to the hearing by the three-judge in banc panel, the parties entered into discussions as to whether it would be necessary to produce the entire transcript of trial testimony for the panel’s review.

By a letter dated April 20, 2001, the parties agreed as follows: (1) by April 26, 2001, Mr. Bienkowski’s attorney would fax to Mr. Brooks’s attorney a suggested summary of the testimony and evidence at trial; (2) by May 3, 2001, Mr. Brooks’s attorney would fax to opposing counsel “any revisions or additions that” he wanted to make “to the proposed summary”; (3) based on the summary and proposed revisions, if there were any disagreements, the attorneys were to confer with an eye to stipulating “to as much of the testimony and evidence” as possible; (4) each side would set forth in their memorandums to the court their respective positions as to any areas of disagreement that still existed; (5) counsel for Mr. Bienkowski was to submit his memorandum to ¹¹¹ the court no later than June 18, 2001, and counsel for Mr. Brooks was to submit his memorandum within twenty-one days thereafter; and (6) to the extent that there was a conflict as to facts in the respective memoranda as to what evidence was presented at trial, the in banc panel would notify the attorneys as to whether any testimony needed to be transcribed and, if so, who would pay for the transcript. On April 26, 2001, counsel for Mr. Bienkowski sent opposing counsel a “proposed summary of testimony presented by plaintiffs witnesses” and a list of plaintiffs exhibits that had been admitted at trial. Despite its title, the paper did not summarize the testimony of seven of the twelve plaintiffs witnesses mentioned; counsel merely stated the subject about which seven of the witnesses testified, rather than summarizing what the witnesses had said. For instance, in regard to Officer Russell, whom plaintiff called as his own witness, the summary reads: “Investigating police officer, did not observe the collision or either party, or the decedent at the accident scene....

Testified in [pjlaintiff s case as to his observation and activities upon arrival at accident scene, as well as his follow-up investigation of the accident.” The paper did summarize, albeit in a very general way, the testimony of Dr. Williams, Dr. Hamilton, Mr. Manning, Mr. Bienkowski, and Captain Douglas Fishel of the Anne Arundel County Fire Department who treated Mr. Bienkowski immediately after the accident. Captain Fishel testified that Mr. Bienkowski was suffering from hypothermia and post-traumatic stress disorder secondary to the accident when he observed him shortly after the accident. On June 18, 2001, Mr. Bienkowski’s attorney filed a “memorandum in support of his request for in banc review,” in which counsel complained that Mr. Brooks’s counsel did not respond to his proposed summary by May 3 as had been agreed. According to the memorandum, on May 24, 2001, Mr. Brooks’s lawyer did send him a letter “claiming that [pjlaintiff s summary was not a summary and that there was nothing for him to revise or edit.” Counsel for Mr. Bienkowski disagreed with ¹¹² this characterization and asserted that defense counsel had “waived any right to challenge or dispute the facts as submitted in the summary sent on April 26, 2001.” After asserting that defense counsel had waived his right to challenge or dispute the facts set forth in plaintiffs summary, plaintiffs memoranda then proceeds to discuss testimony of various witnesses who appeared at trial but whose testimony had never been summarized by plaintiffs counsel.

By way of example, plaintiffs counsel summarizes in his memorandum the testimony of Mr. Brooks and Dr. Manuel Smith, although none of their testimony was mentioned in the April 26 proposed summary. Counsel for Mr. Brooks filed a memorandum in response on July 9, 2001. In the “Statement of Facts” section of the memorandum, Mr. Brooks’s counsel analyzes, in detail, testimony concerning the happening of the accident and the testimony of the two experts. New of the facts summarized in the memorandum are mentioned in the proposed summary of April 26.

The in banc panel heard argument from counsel on September 6, 2001. The panel raised no questions as to exactly what facts were before them. Counsel for Mr. Bienkowski conceded to the panel that Judge Heller was “a wonderful trial judge.” Nevertheless, he contended that in considering the new trial motion, Judge Heller “got hung up” by substituting his view of the liability issue for that of the jury. According to counsel’s argument, what Judge Heller should have done was to have disregarded the liability issue and focused exclusively on the issue of whether the jury verdict as to damages was fair and reasonable in light of the evidence as to damages that was “presented and uncontradicted.” In his argument to the panel, counsel for Mr. Brooks asserted that the most likely explanation for the meager damage award was that the jury arrived at a compromised verdict.

Counsel also maintained that there was no reason to believe that the jury disregarded the court’s instructions. He ¹¹³ pointed out (accurately) that the jury was told that they were entitled to “reject some or all of any witness’s testimony” and that all questions on the special verdict sheet concerning damages began with the words, “What if any damages do you award for....” Defense counsel was asked by one of the in banc panel members whether his expert economist “conceded that [Mrs. Bienkowski] clearly performed household services and that they were valued at” $96,000. Defense counsel answered: [T]hat is an excellent question. It wasn’t put to him in terms of “if’ or “Do you concede it?” He was assuming, as was the plaintiffs expert, that she had performed household services.

THE COURT: Well then, I imagine there was testimony about it, right— [DEFENSE COUNSEL]: There was testimony about — I was not in any position to offer contradictory services, I mean, the lady was deceased. I don’t know what her situation was at the time. And that is why I say, not being able to offer evidence in contradiction of a point, doesn’t mean that we concede the point, or that the point is still not contested or controverted. THE COURT: Right.

But I just want to make clear— [DEFENSE COUNSEL]: I mean, just like I did not cross-examine Mr. Bienkowski on, you know, his post-traumatic stress disorder, or whatever. I, as a tactical matter, was not about to go over — go after Mr. Bienkowski as I did Mr. Manning, or something. I’m not — I’m not real smart, but I’m not that stupid. I wasn’t about to tell the jury, “Watch this.

Let me take this man apart,” after all that has happened to him. No. But that doesn’t mean that I am conceding that there is all of these things, no. Everything was contested. And both experts’ testimony rests on the assumption that certain acts took place.

Defense counsel then proceeded to argue that the jury was free to “accept or reject foundational evidence that goes into an expert’s opinion.” He also reiterated that the mere fact ¹¹⁴ that he could not produce evidence showing that Mrs. Bienkowski did not perform household services “doesn’t mean that I am conceding that the jury must accept that evidence, or conceding that the jury had to make an award of damages.” After taking the matter under advisement, the panel filed a sixteen-page “Memorandum and Opinion” on October 15, 2001. The in banc panel ruled that Judge Heller had abused his discretion in failing to grant a new trial as to damages only. Included in the opinion is the following statement: On February [sic] 6, 2001, the [p]anel heard arguments, and the parties agreed to specific undisputed evidence. This evidence indicated Mrs. Bienkowski performed household services before her death.

Additionally, [p]laintiffs economic expert testified at trial that [p]laintiffs loss of household services was valued at $214,230.00. Whereas, [d]efendant’s expert valued the loss of Mrs. Bienkowski’s household services at $96,437.00. The in banc panel’s opinion does not discuss, in any fashion, the testimony regarding liability, nor does it discuss, or even mention, Judge Heller’s view of the liability issue or his belief that the jury returned a compromised verdict. Moreover, save for the excerpt above quoted, the panel’s opinion does not discuss any of the evidence presented at trial.

The in banc panel opined that there was no controlling Maryland precedent that governed their decision. Therefore, it relied on Linville v. Moss, 189 W.Va. 570 , 433 S.E.2d 281 (1993); Johnson v. Smith, 241 Va. 396 , 403 S.E.2d 685 (1991); and Flagtwet v. Smith, 367 N.W.2d 188 (S.D.1985), and, after remand, 393 N.W.2d 452 (S.D.1986). Reliance upon those out-of-state cases was misplaced. The Johnson and Flagtwet cases were ones where liability was not “seriously disputed.” See Johnson, 403 S.E.2d at 687 ; Flagtwet, 367 N.W.2d at 189 .

Liability was seriously disputed in Linville , but the Linville case noted that West Virginia has been a comparative negligence state since 1979, and also stressed that the jury had found the defendants fifty-one percent liable and the decedent forty-nine percent liable. 433 ¹¹⁵ S.E.2d at 286-89. The court in Linville rejected the possibility, which was recognized in pre-1979 West Virginia cases, that a motion for new trial could be validly denied on the basis of a compromised verdict, i.e., “a defendant’s verdict perversely expressed” as shown by the award of only nominal damages. Id. The in banc panel disagreed with Judge Heller’s statement that there was no indication that the jury was confused by the jury instructions or that the jury disregarded those instructions.

In the panel’s view, it could be “fairly concluded from a simple reading of the jury entries on the Verdict Sheet that there could be no rational basis for a failure to award any money damages for household services.” There being no rational basis, “the jury either did not understand the instructions, or chose to disregard them,” which “was not an option.” The in banc panel did not discuss whether there was any rational basis for the jury to fail to award Mr. Bienkowski non-economic damages on his individual claim or solatium damages in the wrongful death action.

III

ANALYSIS A. The Record to Be Reviewed Appellant filed with this Court the entire transcript of the trial. And, in his record extract, appellant printed, inter alia, 428 pages of trial testimony. Appellee filed a motion asking this Court to strike from the record the trial transcript and to also strike “all references contained in the record extract to the trial transcript and to all additional facts not specifically presented to, considered by[,] and relied upon by the in banc panel.... ” Movant asserts that, [consistent with a written stipulation of the parties dated April 20, 2001, and in accordance with the provisions of Maryland Rule 2-551(d), the record of the trial testimony presented to, reviewed by and relied upon by the in banc panel was limited to a written summary of that testimony, ¹¹⁶ as set forth in [plaintiffs Memorandum and to certain facts stipulated at the hearing before that panel on September 2, [sic] 2001. (References to record extract omitted.) Movant stresses that in a letter to the in banc panel chairman, dated July 16, 2001, counsel for Mr. Brooks had said that, having reviewed the two statements of fact contained in the party’s memoranda, I see no need for a transcript of testimony.

While I may disagree with some of Mr. Barnes’s [counsel for Mr. Bienkowski] characterization of the effect of the testimony - offered at trial, that is a matter of argument, and not something that would be resolved by a transcript. Movant also asserts that, because an appeal to an in banc panel is akin to an appeal from the circuit court to the Court of Special Appeals, the stipulation set forth in the letters exchanged between counsel is analogous to a “statement of the case in lieu of the entire record,” as permitted by Maryland Rule 8-413(b). Appellee’s counsel argues: To permit [a]ppellant to