Choudhry v. Fowlkes

SHABBIR AHMED CHOUDHRY V. LOLITA D. FOWLKES, No. 1148, Sept. Term 2017 HEADNOTE: DEATH>ELEMENTS OF COMPENSATION To recover economic damages for the loss of household services, a beneficiary must: (1) identify domestic services that have a market value; (2) have reasonably expected the decedent to provide the identified services, which—absent the decedent’s legal obligation to provide the services—will typically require evidence showing that the decedent was regularly providing the services in the past; and (3) present some evidence concerning the duration the decedent would have likely provided the services. Circuit Court for Baltimore City Case No. 24-C-16-001919 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1148 September Term, 2017 ___________________________________ SHABBIR AHMED CHOUDHRY v. LOLITA D. FOWLKES ___________________________________ Meredith, Friedman, Eyler, Deborah S. (Senior Judge, Specially Assigned), JJ. ___________________________________ Opinion by Friedman, J. ___________________________________ Filed: November 1, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-11-01 15:26-04:00 Suzanne C. Johnson, Clerk The wrongful death of a child, no matter that child’s age, is an unimaginable loss. A jury found Shabbir Choudhry, M.D., liable for the wrongful death of Lolita Fowlkes’ daughter, 22-year-old Yenita Owens.

As a result, the jury awarded Fowlkes $500,000 in noneconomic damages and $500,000 in economic damages for the loss of Owens’ services. During trial, Fowlkes, who had lived with Owens since her daughter’s birth, testified that her daughter completed various household chores for about two hours per day and that she hoped to live with Owens forever. Choudhry twice moved for judgment as to Fowlkes’ damages claim for the loss of Owens’ services, but the Circuit Court for Baltimore City denied the motions. On appeal, Choudhry asserts that the circuit court erred in denying his motions for judgment as to Fowlkes’ economic damages claim.

We agree. Accordingly, we reverse the $500,000 jury award for the loss of Owens’ services. BACKGROUND In March 2013, 22-year-old Owens died from complications related to necrotizing fasciitis, a severe infection in her leg and groin area. As a result, Owens’ mother, Fowlkes, filed a wrongful death action against various medical providers who treated Owens, including Choudhry.1 1 Because Choudhry was the only defendant found liable during trial and is the only appellant, we will not further discuss the other defendants.

During trial, Fowlkes, then 44 years old, testified that Owens had lived with her for Owens’ entire life. Owens was born when Fowlkes was 17 years old, and Fowlkes had raised Owens as a single mother. Fowlkes testified that Owens was her best friend. Fowlkes relayed that, as Owens got older, she helped Fowlkes around the house.

Owens would clean the bathroom, wash dishes, mop the floor, and vacuum. Fowlkes did not drive, and Owens would drive Fowlkes to places like Wal-Mart and Sam’s Club using another family member’s car. Fowlkes estimated that Owens spent about two hours each day performing these tasks for her. Fowlkes testified that if she could continue to live with Owens, then she “was going to live with her forever.” During Fowlkes’ case-in-chief, her counsel asked the court to take judicial notice of life expectancy tables to assist the jury in evaluating the joint life expectancy of Fowlkes and Owens, pertinent to Fowlkes’ claim for damages based on the loss of Owens’ services.

Though counsel took the position that the market value of the services Owens provided to Fowlkes was within the common knowledge of the jurors, counsel also asked the court to take judicial notice of the minimum wage statute2 to provide a “baseline” value of those services to the jury. The court denied both requests. Concerning the life expectancy tables, the court said, “I see no reason to take judicial notice of that because I don’t know what the life expectancy of this woman would have been based on her medical condition.” 3 As 2 Presumably counsel was referencing section 3-413(c) of the Labor and Employment Article, which sets forth State minimum wage rates based on year. MD.

CODE, LABOR AND EMPLOYMENT § 3-413(c). 3 During the course of the trial, the jury heard evidence about Owens’ various physical and medical conditions, including that she was overweight, had a history of asthma, had chronic swelling of her legs, had a history of high blood pressure, took pain 2 to the minimum wage statute, the court commented that if the value of the services was within the jurors’ common knowledge, judicial notice was not necessary. The court pointed out that counsel had “every right to argue to the trier of fact what you believe the value of something is.” At the close of Fowlkes’ case-in-chief, Choudhry moved for judgment under Maryland Rule 2-519 as to Fowlkes’ damages claim for the loss of Owens’ household services. Defense counsel argued that the evidence Fowlkes presented was insufficient as a matter of law to submit the damages claim to the jury. The court denied the motion.

At the close of all the evidence, Choudhry renewed his motion for judgment as to the damages claim for loss of household services, but the court again denied the motion. The jury found Choudhry liable for Owens’ death. The jury then awarded Fowlkes $500,000 in noneconomic damages and $500,000 in economic damages for the loss of Owens’ services. On appeal, Choudhry challenges only the $500,000 jury award for economic damages described as “loss of services.” DISCUSSION Choudhry asserts that the trial court erred when it denied his motion for judgment as to Fowlkes’ damages claim for the loss of household services for two reasons.

First, he contends that the household services that Fowlkes testified Owens performed do not constitute a recoverable pecuniary loss. Second, he asserts that even if such household medication, and suffered from the autoimmune disease lupus, which had damaged her kidneys. 3 chores can be recovered as a pecuniary loss, Fowlkes nonetheless presented insufficient evidence to support any non-speculative damages award. Under Maryland Rule 2-519, any “party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all the evidence.” MD. RULE 2-519(a).

When ruling on a motion for judgment in a jury trial, the trial “court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made.” MD. RULE 2-519(b). When reviewing the trial court’s denial of a motion for judgment, we “perform the same task as the trial court, affirming the denial of the motion if there is any evidence, no matter how slight, that is legally sufficient to generate a jury question.” Prince George’s Cty. v. Morales, 230 Md. App. 699, 711 (2016). Whether the types of services Owens performed for Fowlkes constitute a recoverable pecuniary loss is a question of law, which we review without deference to the trial court.

See U.S. v. Searle, 322 Md. 1, 4, 6-7 (1991); Khalifa v. Shannon, 404 Md. 107, 115 (2008). For the reasons discussed below, we hold that household services like those Owens performed may be recoverable as a pecuniary loss but that Fowlkes presented insufficient evidence to submit her damages claim to the jury. Therefore, the trial court should have granted Choudhry’s motion for judgment, so we reverse the $500,000 economic damages award for the loss of Owens’ services. 4 I. HISTORY AND BACKGROUND A. The Wrongful Death Act Generally We start with a brief overview of the wrongful death statute. “The wrongful death statute allows the decedent’s beneficiaries or relatives to recover damages for loss of support or other benefits that would have been provided, had the decedent not died as a result of another’s negligence.” Spangler v. McQuitty, 449 Md 33, 53 (2016). Maryland initially adopted its wrongful death statute in 1852, and until 1969, limited recovery to pecuniary losses.

Barrett v. Charlson, 18 Md. App. 80, 84-85 (1973). The statute has been amended over time to increase the types of damages recoverable and the beneficiaries who may recover damages for the wrongful death of a family member. H. KENNETH ARMSTRONG, ET AL., MARYLAND TORT DAMAGES 43-44 (Robert R. Michael, ed., 7th ed. 2015). It is well established that the wrongful death statute now allows a covered beneficiary to recover for both pecuniary (i.e., economic) and nonpecuniary (often referred to as noneconomic or solatium) damages resulting from the wrongful death of a family member listed in the statute.

Spangler, 449 Md. at 69. Accordingly, a parent of an adult child undisputedly may recover both types of damages that arise from the wrongful death of an adult child. MD. CODE, COURTS AND JUDICIAL PROCEEDINGS (“CJ”) § 3-904(e).

B. Loss of Household Services as Economic Damages in a Wrongful Death Action Turning to the concept of household services, we acknowledge that our previous cases addressing the recovery of damages for a loss of such services do not always provide 5 trial courts and litigants with clear, consistent guidance about what a beneficiary must show to be entitled to such damages. Better direction from the appellate courts is long overdue. Consequently, upon our review of Maryland case law and other persuasive authority, we have derived the following 3-part rule for when a beneficiary in a wrongful death action may recover economic damages for the loss of household services. Specifically, we conclude that a beneficiary must: (1) identify domestic services that have a market value; (2) have reasonably expected the decedent to provide the identified services, which—absent the decedent’s legal obligation to provide the services—will typically require evidence showing that the decedent was regularly providing the services in the past; and (3) present some evidence concerning the duration the decedent would have likely provided the services.

We explain below. 1. Identification of Domestic Services that have a Market Value In Maryland, “damages referred to as ‘household services’ can have both pecuniary and nonpecuniary aspects.” Searle, 322 Md. at 6 . The Court of Appeals has clarified under what circumstance a loss of household services will constitute a pecuniary loss: [W]here an award for household services is compensation for the loss of domestic services and is based on the market value of those lost services, the award is pecuniary and is not duplicative of the solatium damages. These are services that can be performed by domestic workers and their replacement value is measured by prevailing wage rates for such services.

Searle, 322 Md. at 7 (emphasis added); see also Edmonds v. Murphy, 83 Md. App. 133, 170 (1990) (household “services which can, but need not necessarily, be performed by hired help” constitute a pecuniary, rather than nonpecuniary, loss); Holmes v. Criminal 6 Injuries Comp. Bd., 278 Md. 60, 67 (1976) (“this Court has held that the loss of domestic services performed by a relative may constitute a loss of a pecuniary nature”); see also Morvant v. Constr. Aggregates Corp., 570 F.2d 626, 633 (6th Cir. 1978) (under the federal Jones Act and general maritime law; “[h]auling out the garbage, mowing the lawn, making repairs, and other household tasks” that “command[] an economic price” may “be included as a part of the pecuniary loss suffered by the decedent’s family”). Accordingly, a beneficiary must first identify specific household tasks that can be performed by domestic workers and, as a result, have an identifiable market value if the beneficiary is seeking an economic damages award.

These tasks may include “cooking, cleaning, and gardening” and can range from “polishing the family silver to pulling up weeds from the garden.” Edmonds, 83 Md. App. at 165 . Without such an identification of specific domestic services that have a market value, economic damages awarded for a generalized claim of loss of “household services” could problematically duplicate damages awarded for the nonpecuniary4 aspect of household services and allow a beneficiary to circumvent the noneconomic damages cap set forth in CJ § 11-108(b). 2. Reasonable Expectation to the Receipt of Services Next, we conclude a beneficiary must set forth evidence showing that he or she had a reasonable expectation that the decedent would perform the identified household tasks. 4 The nonpecuniary or noneconomic component of “household services” has been described as “services that are of such a character that they cannot be rendered by hired help and on which, by reason of their character, no market value can be placed.” Edmonds, 83 Md. App. at 168 (cleaned up). These include “affection, society, companionship, and sexual relations.” Id. at 169 . 7 Maryland cases consistently set forth that a beneficiary must have a “reasonable expectation of pecuniary benefit or advantage5 from a continuance of the life of the person killed.” Balt. & O.R. Co. v. State, to Use of Mahone, 63 Md. 135, 145 (1885) (“Mahone”); see also State, for use of Strepay v. Cohen, 166 Md. 682 , 172 A. 274, 279 (1934) (“Strepay”) (“recovery for loss of services … does not depend upon a legal right in the plaintiff to valuable assistance from the dead relative, but … it is sufficient if the evidence shows that the surviving relative had a reasonable expectation of pecuniary benefits from the continuance of the life of the dead relative”); Emp’rs Liab.

Assurance Corp., for Its Own Use and to Use of Jones v. Balt. & O.R. Co., 173 Md. 238, 245 (1937) (“Jones”) (action for damages under Workers’ Compensation Act; economic damages are limited “to the loss of benefits which the plaintiff because of the decedent’s past conduct might reasonably have expected to receive from him had he lived”) (emphasis added). Indeed, the Supreme Court, when addressing the pecuniary loss rule, has likewise recognized that the touchstone for recovery is whether the surviving relative had “some reasonable expectation of pecuniary assistance or support of which they have been deprived.” Mich. Cent. R.R. Co. v. Vreeland, 227 U.S. 59, 70 (1913) (applying federal law).

We further glean from the case law that there are at least two ways in which a beneficiary can establish this reasonable expectation. First, a beneficiary may have a reasonable expectation to the receipt of services from a decedent if the decedent was under 5 In this scenario, the pecuniary benefit or advantage would be the receipt of the domestic services. 8 a legal obligation to provide the services to the beneficiary. 6 See, e.g., Jones, 173 Md. at 244-45 (recognizing as then-existing legal obligations a parent’s entitlement to the services of a minor child and a husband’s duty to support his wife); Strepay, 172 A. at 279 . Second, absent the decedent’s legal obligation to provide the services, Maryland case law supports that a beneficiary has a reasonable expectation that a decedent will perform such tasks if the decedent has been regularly and consistently (not just occasionally) performing those tasks in the past. For example, in Mahone, the Court of Appeals concluded that an adult daughter suffered a pecuniary loss from the death of her mother because the evidence showed that the mother performed babysitting and housekeeping services for her daughter on a daily basis, which allowed the adult daughter to work outside of the home.

Mahone, 63 Md. at 145-46 . In contrast, in the same case the adult sons only provided evidence that the mother occasionally helped out when the sons’ children were ill. Id. at 147 . Notably absent from the record was any evidence about “[h]ow often [the mother] went, how long she remained, and what was the value of such services” through, for example, evidence that the sons had “to employ [someone] to nurse” the children after the mother’s death.

Id. Without such evidence, the sons failed to establish “a reasonable expectation of pecuniary benefit from the continuance of the mother’s life.” Id. at 148 . We observe that generally “[a]n adult child has no legal obligation to contribute to 6 the support of his or her parents, and the parents have no legal right to the services or earnings of an adult child.” 3 JEROME H. NATES, ET AL., DAMAGES IN TORT ACTIONS § 22.06, 22-142 (Matthew Bender 2019). 9 Similarly, in State, for use of Bowman v. Wooleyhan Trans. Co., 192 Md. 686 (1949) (“Bowman”), the Court of Appeals concluded an adult daughter did not suffer a pecuniary loss after the death of her mother because, while the mother visited her daughter daily, the mother only provided domestic help to her daughter “at times” when the mother, who was regularly employed elsewhere, was not working.

Id. at 690-91 . The Bowman Court characterized the services provided by the mother as “remote” and “occasional.” Id. at 695 . Likewise, in Montgomery Cablevision Ltd. P’Ship v. Beynon, 116 Md. App. 363 (1997), rev’d on other grounds, 351 Md. 460 (1998) (“Montgomery Cablevision”),7 we reversed an award for economic damages to parents for the death of their 19-year-old son who lived at home when the father testified that his son helped around the house but gave no indication how often such services were rendered. Id. at 390-91; see also Betesh v. U.S., 400 F. Supp. 238, 248 (D. D.C. 1974) (construing Maryland law; parents could not recover economic damages for death of 26-year-old son where there was “no record of his pecuniary support of them or of services gratuitously rendered to them”); compare Driscoll v. U.S., 456 F. Supp. 143, 151 (D. Del. 1978) (construing Maryland law; wife’s testimony that deceased husband performed household services such as “shopping, child care, and the making of some furniture” for two hours per week supported an award for loss of household services).

Thus, consistent with prior Maryland case law, we hold that a 7 The Court of Appeals granted certiorari and reversed this Court solely on the issue of whether and under what circumstances pre-impact fright damages are recoverable in survival actions. 351 Md. at 464, 469 . Thus, we continue to treat as binding the Montgomery Cablevision Court’s discussion of when economic damages for loss of services and other pecuniary benefits are recoverable in a wrongful death action. 116 Md. App. at 389-92 . 10 beneficiary who is not otherwise legally entitled to the services typically must present some evidence that the deceased relative performed the household services on a consistent, regular basis to establish a reasonable expectation of a pecuniary benefit in the continued life of the deceased relative.8 See also 3 JEROME H. NATES, ET AL., supra note 6, at § 22.06[3][a], 22-114 (recognizing that generally “regular patterns of behavior” must be shown and that “occasional or isolated acts of assistance … may not be a sufficient predicate for an award for loss of services”). 3. Likely Duration of the Services Finally, because damages may not be “speculative, remote, or uncertain,” Sugarman v. Liles, 460 Md. 396, 439 (2018), we conclude that a beneficiary must also present some evidence tending to establish the time period during which the beneficiary could have reasonably expected the deceased relative to keep performing the household services. For example, in Jones, the Court of Appeals noted that the “words and conduct of the decedent manifesting an intention and purpose on his part to make future contributions of money, other things of value, or service to the plaintiff, may be relevant and material facts.” Jones, 173 Md. at 244 .

The Jones Court further determined that damages awarded to the beneficiaries had to be limited to “the duration of the period over which the contributions 8 We do not mean to suggest that these are the only two ways to ever show a reasonable expectation to the receipt of household services. We simply note that they are the primary means we have seen explained in our cases. We anticipate there may be other avenues to establish a reasonable expectation (maybe, for example, based on an express agreement between a beneficiary and decedent concerning the provision of identified services in the future), which likely will be informed by the nature of the relationship between the beneficiary and the decedent. We leave for another day the identification and development of these other avenues. 11 would have been made, had the decedent lived.” Id. at 250 .

Likewise supporting that evidence of duration is necessary to recover for a loss of household services, in Montgomery Cablevision, we reversed an economic damages award based on rent and household services a deceased 19-year-old provided to his parents, in part, because there was no evidence tending to “show that the decedent planned to live with his parents indefinitely.” 116 Md. App. at 391 (emphasis added). We recognize that, in certain circumstances, the duration of services may be presumed due to the relationship between the beneficiary and the decedent. For example, when calculating economic damages based on the loss of services as between spouses, courts typically presume that the deceased spouse would have provided the identified household services during the couple’s joint life expectancy. See, e.g., Driscoll, 456 F. Supp. at 151 ; Sun Cab Co. v. Walston, 15 Md. App. 113, 143 (1972).

In addition, due to the obligation of parents to support their minor children, as well as parents’ legal right to the services of their children, when damages for loss of services are sought between a parent