Fulton v. K & M ASSOCIATES

KARWACKI, Judge. The issue to be resolved in this case is whether the trial court abused its discretion in denying a motion for voluntary dismissal without prejudice under Maryland Rule 2-506(b) made by a next friend on behalf of a minor plaintiff where counsel lacked sufficient medical evidence to prove the permanent brain damage to the infant which was alleged. I. Shawn Fulton, a minor, is alleged to have suffered chronic lead poisoning during his infancy. In a complaint, his next friend and mother, Jacqueline Alexander, pursuant to Rule 2-202(b) \ claimed that the primary source of that poisoning was ⁷¹⁴ deteriorated lead based paint ingested by her son in various houses where Shawn lived in Baltimore City.

The suit was filed in the Circuit Court for Baltimore City against the owners of those houses (“the appellees”) contending that their negligence in maintaining the properties resulted in Shawn’s brain damage. Ms. Alexander also made claims in her own right for the loss of services of her son and for expenses she allegedly incurred as the result of her son’s lead poisoning. 2 Discovery proceeded and the case was called to trial on June 16, 1992. At trial, plaintiffs counsel informed the court that he lacked sufficient evidence to support Shawn’s case, citing lack of cooperation on the part of the next friend in taking Shawn to receive psychometric testing by a clinical psychologist. Plaintiffs counsel contends that such testing would permit a medical expert to conclude whether a pattern of deficits exhibited by the child is consistent with and probably caused by exposure to lead.

Unprepared for trial, plaintiffs counsel sought voluntary dismissal without prejudice pursuant to McLRule 2-506(b) 3 in ⁷¹⁵ order to preserve the child’s cause of action. Defense counsel opposed the motion. Following a pre-trial hearing, the trial court denied the motion. The trial proceeded and a jury was selected.

Plaintiff’s counsel presented his client’s case. Following the close of the plaintiffs evidence, the defendants moved for judgment in their favor and against the plaintiffs pursuant to Md.Rule 2-519 4 , and the trial judge granted that motion. A notice of appeal to the Court of Special Appeals was timely filed. Prior to consideration of case by the intermediate appellate court, we issued a writ of certiorari on our own motion, 329 Md. 479 , 620 A.2d 349 .

Under the plain language of Md.Rule 2—506(b) the appellants lost the absolute right to voluntarily dismiss their action after the appellees filed answers to the complaint. Scheve v. Shudder, 328 Md. 363, 377 , 614 A.2d 582, 589 (1992). Thereafter, the appellants could only voluntarily dismiss their actions “upon such terms and conditions as the court deems proper.” Md.Rule 2-506(b). Consequently, in an action such as the instant case, where the claims of the infant plaintiff had ⁷¹⁶ not been previously voluntarily dismissed in a previous action, whether a voluntary dismissal should be granted without prejudice is committed to the sound discretion of the trial judge.

Md.Rule 2—506(c); See New Jersey ex rel. Sandra Lennon v. Strazzella, 331 Md. 270 , 627 A.2d 1055 (1993); Paturzo v. Home Life Ins. Co., 503 F.2d 333, 335 (4th Cir. 1974) (interpreting Federal Rule Civ.Proc. 41(a)(2) from which Md.Rule 2-506(b) is derived). In refusing to permit the claim of the infant plaintiff to be dismissed without prejudice, the trial judge explained: “I have no reason to believe, and I’ll put this on the record, that based on what has happened up to this point with the fact that considering that you have used best efforts to try and have this testing done, there is no cooperation....

Mr. Murphy had to get a court order to have the mother appear at a deposition, I have no reason to believe that even if I postpone this case that this woman would then cooperate. None at all. There is no expectation that with this case pending for this period of time that now further postponement or a dismissal to give you time to get it done would help.” He continued: “Sir, I can’t make it clearer. Based on these facts where this woman has not cooperated and where you have done and used best efforts to get her to take her son to this testing and where I have no reason to believe a postponement caused by—no matter how you cut it it’s a postponement.

If I allow you to dismiss without prejudice, it’s a continuance in this case.” He stated further: “I’m well aware that I have discretionary powers to grant your dismissal without prejudice. What I’m telling you, I think it’s in the best interest of all involved because the defendants, have also expended monies and efforts in this case as well. It’s not just you who has accumulated expenses and costs, each one of these defendants have in ⁷¹⁷ curred attorneys fees, costs, and other expenses related to this case.... “Secondly, each for their own reason has objected to your dismissal which is their right. I understand their position.

As part of their objection, Mr. Murphy has made it perfectly clear that this woman has not cooperated with him or his office either. You have gotten—you have told me that she has not withstanding your best efforts, has not cooperated with you to get this testing done. I have no reason to believe that if I granted your request to dismiss this case and testing occurred that, number one, that it would prove that any of these problems were causally related to the lead paint, and secondly, no reason to believe that, in fact, she’s going to go to the testing on the