Raynor v. Maryland Department of Health & Mental Hygiene

¹⁷⁰ DAVIS, Judge. This is an appeal from the decision of the Circuit Court for Washington County (Moylan, J.) to grant appellee’s motion to dismiss appellants’ counterclaim against appellee on July 25, 1995. The trial court treated appellee’s motion as though it were a motion for summary judgment and considered evidence beyond the four corners of appellants' counterclaim. Appellant presents the following issues for our review: I. Did the trial court err when it found that Christina Hiett was in jeopardy of contracting rabies, and that the Maryland Department of Health and Mental Hygiene was bound and justified in ordering the ferret’s destruction and testing to determine whether she was at such risk?

II

Is the Maryland Department of Health and Mental Hygiene required by the United States Constitution and Maryland’s Constitution to pay compensation to the owners of a healthy pet animal for the destruction and testing of their animal pursuant to the Department’s rabies eradication program?

III

Did the trial court’s denial of Heather Sauders’s motion to intervene during the injunction hearing bar her from joining as a counterclaimant in the second amended complaint? FACTS On December 22, 1994, Gina Raynor, a twelve-year-old girl, took her pet ferret to a slumber party hosted by another girl’s parents. Thirteen-year-old Christina Hiett attended the sleep-over party. Unknown to her parents, Christina was thinking about adopting the pet ferret and wanted to see what the ferret was like.

Toward that end, Gina brought the ferret to the party in a clothes bag and let it wander about in the bedroom while the four girls attending the party sat on the host’s bed, ate cookies, and passed the night away. At some point, the ferret went over to a cookie that was lying on the bed next to Christina’s hand and started to sniff the cookie. ¹⁷¹ Apparently, the ferret determined by its smell test that it wanted to eat the cookie and so it decided to take a bite. Unfortunately for all parties involved, however, the ferret missed the cookie and bit Christina’s hand between the thumb and forefinger. Christina bled a little, but washed her hand and rejoined the party without telling any adults of the incident.

When Christina went home the next day, she did not immediately tell her parents about the ferret bite. Her mother, Victoria Hiett, learned of the incident only after directly confronting her daughter about the bite mark on her hand. After she learned the nature of the bite, Ms. Hiett contacted her doctor who referred her to the Maryland Department of Health and Mental Hygiene, appellee, and told her to go to a hospital emergency room. An emergency room physician gave Christina a tetanus shot, but did not recommend that Christina be given a rabies vaccination because of the combination of the treatment’s side effects and the doctor’s lack of knowledge concerning the ferret that bit Christina.

Appellee informed Ms. Hiett that in cases where an animal has bitten a person, there are two choices—(1) the individual may receive the rabies prophylaxis, or (2) the animal can be destroyed and its brain tested to determine if it has rabies and if vaccination is necessary. Before deciding upon her daughter’s course of action, Ms. Hiett conducted her own research of rabies and the necessary vaccinations—she consulted the Physicians Desk Reference, called her family doctor, called the hospital, and contacted the maker of the vaccine. Finally, Ms. Hiett decided that, because the animal was not vaccinated against rabies, Christina would have to undergo the rabies treatment if it could not be determined whether the ferret had rabies. Consequently, Ms. Hiett wanted the animal destroyed and its brain tested for rabies before she forced her daughter to undergo what she perceived to be a painful series of injections that could have other harmful side effects. ¹⁷² As a result of Ms. Hiett’s decision, appellee ordered Gina’s father, Steven Raynor, to give the ferret to the local Society for the Prevention of Cruelty to Animals (SPCA) or to a local veterinarian for destruction and testing. 1 Six days later, appellee sought from the Circuit Court for Washington County an order requiring Mr. Raynor to turn over the ferret for testing because he had not yet done so.

Pending the resolution of appellee’s petition, Mr. Raynor agreed to give the ferret to the local SPCA for safekeeping. After hearing testimony presented by both parties on January 20 and 23, 1995, the circuit court granted appellee’s petition for an injunction requiring appellants to submit the ferret for rabies testing. The circuit court stated that appellee and the Washington County Health Department (WCHD) were empowered to compel the destruction and testing of the ferret by Md.Code Ann., Health-Gen. § 18-313 and § 18-320 (1984), as well as COMAR 10.06.02. The court explained that it found that the testimony of several doctors indicated that rabies is a deadly disease and that the only method available to determine if an animal has it is to test the animal’s brain after it has been destroyed.

It stated that the regulations defined entire species as domesticated or wild and not individual pets. Additionally, the court found that the regulations requiring the testing of a ferret that bites a human were rationally and cogently developed. The circuit court determined that appellee’s regulations implementing Md.Code Ann., Health-Gen. § 18-313, et seq. (1984) were based upon the recommendations of the Immunization Practices Advisory Committee (ACIP) associated with the Division of Viral and Rickettsial Diseases, Center for Infectious Diseases, Center for Disease Control (CDC).

The court noted that ACIP’s most recent publication regarding rabies states that ferrets are considered wild animals because they may be highly susceptible to rabies and can transmit the disease, particularly ¹⁷³ as the shedding period (the time during which rabies lives in an animal’s saliva) is unknown in ferrets. The court further found that appellee’s expert who testified at the hearing discounted several studies relied upon by appellants to demonstrate that biting ferrets should not be destroyed. The court noted that appellant’s expert was only qualified as an expert on pediatrics and subsequently held that appellee’s expert testimony established that ferrets are wild animals and that the ferret in this case needed to be tested for rabies in order to ensure Christina’s continued health. As a result, the circuit court ordered that the animal be tested.

Additionally, the trial court granted appellant Gina Raynor permission to intervene in the action and allowed appellants to submit a counterclaim against appellee. The circuit court, however, denied Heather Sauders’s attempt to intervene and become a party to the counterclaim. Heather, a friend of Gina’s, claimed to be a part owner of the ferret. When the ferret was born, Gina and Heather shared ownership of her.

Each took care of the ferret for periods of up to two months at different times during which the ferret never lived outside and had no exposure to wild animals. Appellants filed a three-part counterclaim alleging (1) inverse condemnation, (2) damages that were compensable under the Maryland Constitution and Declaration of Rights, and (3) conversion under the Maryland Tort Claims Act. The complaint disputed the necessity of destroying all ferrets that have bitten humans and stated that appellee’s decision to test the ferret in this case was unnecessary. As a result, appellants claim that they are entitled to compensation for the destruction of their property—the ferret.

Appellee filed a motion to dismiss appellants’ claim alleging that no compensation was owed. The trial court treated this motion as if it were a motion for summary judgment and considered much of the evidence presented to the circuit court during the injunction hearing. The trial court found that appellee was justified in its decision to destroy and test the ferret because Christina was in danger of contracting rabies. ¹⁷⁴ The court held that appellee was acting within the legitimate boundaries of its police power when it did so. ■ The trial court also dismissed the unlawful conversion count because it held that there was no unlawful taking. Finally, the trial court stated that the circuit court had already denied Heather’s motion to intervene and so it would not consider the petition.

I Appellants contend that summary judgment is inappropriate in the case sub judice. Appellants do not question the trial court’s decision to treat appellee’s motion to dismiss as a motion for summary judgment. Rather, appellants argue that the evidence before the trial court demonstrated that the rabies test was not necessary because Christina’s health was never in jeopardy and because the ferret did not have rabies. Appellants argue that these two facts make appellee’s decision to seize and destroy the animal an improper use of the State’s police power.

Appellants apparently concede that appellee could take the ferret from appellants for testing so long as the taking was justified as a legitimate exercise of the police power, Andrus v. Allard, 444 U.S. 51 , 100 S.Ct. 318 , 62 L.Ed.2d 210 (1979), and that appellee legitimately acted pursuant to the State’s police power if destroying and testing the ferret was substantially related to the protection of Christina’s health. Cf. Potomac Sand & Gravel v. Governor, 266 Md. 358 , 293 A.2d 241 , cert. denied, 409 U.S. 1040 , 93 S.Ct. 525 , 34 L.Ed.2d 490 (1972). Appellants claim that, contrary to the trial court’s finding, Christina was never in jeopardy of contracting rabies, as shown by the negative test result.

Appellants assert that the evidence adduced at the injunction hearing and considered by the trial court on summary judgment indicated that Christina was not at risk to contract rabies from the ferret’s bite because of the animal’s history, species and circumstances of the bite. In other words, appellants argue that appellee’s decision to test the ferret was not warranted by the facts and that this was demonstrated to the trial court. If this is so, according to appellants, appellee’s actions were not justified ¹⁷⁵ by the State’s police powers because they were not substantially related to the protection of Christina’s health. As we consider this case, we are, of course, mindful that we are reviewing the trial court’s decision to grant summary judgment and that, as a result, we must determine whether the trial court was legally correct.

The rationale is that [w]hen making a determination on summary judgment, a trial court makes no findings of fact. Rather, the court decides whether a genuine issue of material fact exists to prevent the entry of summary judgment. Under this standard, therefore, we review the trial court’s ruling as a matter of law. IA Constr.

Corp. v. Carney, 104 Md.App. 378, 384 , 656 A.2d 369 (1995), aff'd, 341 Md. 703 , 672 A.2d 650 (1996) (citations omitted). See also Consumers Life Ins. Co. v. Smith, 86 Md.App. 570, 572-73 , 587 A.2d 1119 (1991). Additionally, in determining whether summary judgment is appropriate, a court must view the facts, including all inferences, in the light most favorable to the non-moving party—appellants.

See Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 43 , 656 A.2d 307 (1995). Appellants direct this Court’s attention to the testimony of several witnesses that they claim establish that appellee was not justified when it tested the ferret. Dr. Hoffman, an expert in pediatrics, testified that Christina was not in any danger of contracting rabies.

He stated: I believe that the circumstances of the bite, uh, the history is, is totally absent of any exposure to rabies. Uh, the fact that the, there is no logical explanation for a, this animal to, to have been exposed.... So in this case I would be telling those parents, both the bite parents, the parents of the child who, who was nipped, as well as the parents who currently own the animal, that there is no risk in this situation and that post-exposure prophylaxis would not be warranted and that quarantine of the animal, uh, you know, would be something to, to be considered only if there was nervous ¹⁷⁶ ness. That is what my assessment is, that this is a no risk situation.

(Emphasis added). Additionally, Dr. Badura, a veterinarian who examined the ferret in question after the biting incident, testified that she found the animal to be within the “normal health parameters of a ferret.” This diagnosis was based upon her examination of the ferret at which time she looked at the eyes, ears, and throat of the ferret and performed a skulltation of the heart and lungs, palpation of the abdomen, and a rectal temperature reading. At the conclusion of her visit, Dr. Badura found that there was no indication that the ferret had any health problem. Appellants place additional weight on the testimony of both Dr. Grigor and Dr. Hoffman, who stated that epidemiological evidence shows that no human has ever been reported to have contracted rabies from a ferret and that the number of reported rabid ferrets was statistically non-existent.

Appellants also point to two other sources to dispute the trial court’s finding that Christina’s health was at risk. Appellants state that it was the testimony of those responsible for the care of the ferret that it lived its entire life in a domestic environment—the ferret lived at either Gina Raynor’s or Heather Sauders’s home since birth. Furthermore, it was their testimony that at no time was the ferret lost or did it come in contact with other wild animals. Finally, appellants direct our attention to the test result to prove their point—the test was negative for rabies.

This, appellants assert, is proof positive that Christina was never in danger of contracting rabies. Appellants further argue that the ferret did not need to be tested because the necessity of the prophylaxis treatment could have been determined without performing a rabies test on the animal’s brain. According to appellants’ pediatric expert, Dr. Hoffman, whether vaccination against rabies is required after an individual has been bitten is based on the clinical evaluation of the circumstances, it is not based on a laboratory examination. The laboratory ¹⁷⁷ examination can, can [sic] bring comfort to a, to a low level, you know, to a medium level, I won’t say low level, there’s no risk, there’s risk or there is extreme risk, uh, and in the, in the suspected cases where, uh, where you think the animal, and it’s not flagrant, you know, but I think the bottom line is I would not rely on the test by itself.

There are situations where tests will be negative ... [and] I would not stop post-exposure prophylaxis if, if it had already been started based on that negative test. Appellants contend that the doctor’s testimony supports their argument that testing was unnecessary because the need for post-exposure prophylaxis treatment could have been determined merely by studying the animal that bit Christina, in this case a domesticated ferret. Finally, appellants assert that appellee’s decision to destroy and test the ferret was an act that was outside the State’s police power because appellee’s own regulatory policy wrongly classified ferrets as wild animals that must be destroyed and tested in the event that they bite a human. Md.Code Ann, Health-Gen. § 18-313 (1986) authorizes appellee to establish regulations, inter alia, to control rabies.

COMAR 10.06.02.06(B)(3) was formulated in compliance with § 18-313 and requires any “wild animal” that bites a human to be destroyed and the head to be submitted to appellee’s laboratory for rabies testing. 2 Md.Code Ann, Health-Gen. § 18-320(d)(1) also authorizes the destruction and testing of a biting animal if it is necessary to preserve human health. 3 Appellee ¹⁷⁸ classifies ferrets as wild animals that are subject to the above regulations. Appellants, however, argue that the trial court had evidence before it that dogs, cats, and livestock, all of which they claim are more prone to expose an individual to rabies than ferrets, are not required to be destroyed. Because ferrets are less likely to infect a human, appellants claim that appellee’s classification of ferrets as wild animals is wrong and that ferrets should be treated as domesticated animals that are only quarantined in the event that they bite a human. Additionally, appellants argue that the regulatory scheme allowed appellee merely to quarantine the ferret and compel the bite victim to receive post-exposure treatment.

Each argument put forward by appellants to challenge appellee’s decision to destroy the ferret denies that appellee’s actions were within the police power that the State and its agencies may lawfully exercise. In this case, appellants attack the validity of a statute, Md.Code Ann., Health-Gen. § 18-320(d)(l) (1984), and a regulation, COMAE. 10.06.02.06(B)(3), which itself was created to satisfy a statutory mandate set forth in Md.Code Ann., Health-Gen. § 18-313 (1986). We must, therefore, determine whether those laws are lawful manifestations of the State’s police power. “A legislative enactment is within the permissible bounds of the police power if it is reasonably and substantially related to the public health, ... safety and welfare of the people.” Cade v. Montgomery County, 83 Md.App. 419, 425 , 575 A.2d 744 , U.S. cert. denied, 498 U.S. 1085 , 111 S.Ct. 960 , 112 L.Ed.2d 1047 (1991). Cf.

The Maryland-Nat'l Capital Park And Planning Comm. v. Chadwick, 286 Md. 1, 8-9 , 405 A.2d 241 (1979); Edgewood Nursing Home v. Maxwell, 282 Md. 422, 426 , 384 A.2d 748 (1978). The State’s exercise of its police power is reviewable, of course, Aero Motors, Inc. v. Motor Vehicle Admin., 274 Md. 567, 588 , 337 A.2d 685 (1975), “but the exercise of such power will not be interfered with unless it is shown to be misused or .abused, or where it is shown to be exercised arbitrarily, oppressively or unreasonably.” Id. (citations omitted). Moreover, ¹⁷⁹ The wisdom or expediency of a law adopted in the exercise of the police power of the state is not subject to judicial review and such a statute will not be held void if there are any considerations relating to the public welfare by which it can be supported.

Id. at 588-89 , 337 A.2d 685 (emphasis added) (citations omitted). The decidedly difficult task of demonstrating the invalidity of a legislative enactment predicated upon the police power is made even more onerous by the fact that “the burden of demonstrating the invalidity of a legislative enactment rests [entirely] with the party attacking its constitutionality.” Cade, 83 Md.App. at 425-26 , 575 A.2d 744 . Initially, we note that appellants sought to place before the trial court and this Court the wrong issue. Of the five objections appellants articulate to the handling of the ferret in this case, two are based on the assertion that Christina’s health in this case was never at risk and the destruction of the animal was unnecessary because (1) the ferret was domesticated, having been raised and kept in captivity its entire life; and (2) the animal was examined by a veterinarian after the incident and found to be in good health.

Appellants seem to suggest that the question is whether appellee had the authority to seize and destroy this ferret. That is not the question. Rather, appellants must challenge the enabling legislation that allows appellee to destroy and test ferrets in general. They cannot acknowledge the lawfulness of Md.Code Ann., Health-Gen. § 18-320(d)(l) (1984), and COMAR 10.06.02.06(B)(3) and challenge appellee’s specific application to this case of the powers granted therein because these sections directly authorize appellee’s conduct in the event any ferret, healthy or otherwise, bites a human.

In other words, appellants cannot argue that this individual ferret should not have been destroyed, but rather must argue that appellee’s treatment of all ferrets is in some manner objectionable. This principle was recognized by the circuit court during its consideration of the matter during the injunction hearings on January 20 and 23, 1995, when it stated, “[T]he regulations relate to species of animals, not particular animals.” (Emphasis ¹⁸⁰ added.) Because this is the case, appellants must challenge appellee’s authority to destroy and test ferrets. Among the remaining three arguments that appellee’s seizure, destruction, and testing of the ferret was beyond the State’s police powers, one questions the wisdom of Md.Code Ann., Health-Gen. § 18—320(d)(1) (1984), and 'COMAR 10.06.02.06(B)(3). Appellants assert that destruction of an animal is never necessary as the need for treatment can be determined by the biting animal’s history and the possibility that it could have contracted rabies.

As noted above, Dr. Hoffman testified that in cases where a human is exposed to rabies, one cannot rely on a rabies test to determine whether treatment is necessary because mistakes may be made by a testing laboratory and there can be false negatives wrongly indicating that the victim of an animal bite did not contract rabies. Instead, Dr. Hoffman testified that the proper course of action for the victim is to determine whether the biting animal is at high risk of having rabies regardless of any rabies test. Appellants assert that the course prescribed for the handling of wild animals is irrational because the test need not be performed in order to evaluate the necessity for the victim to undergo prophylaxis treatments. As previously noted, when the soundness of a law adopted in accord with the State’s police power is questioned, the law will not be held void if there are any considerations relating to the public welfare by which it can be supported.

See Aero Motors, Inc., 274 Md. at 588-89 , 337 A.2d 685 . In the case sub judice, appellee’s rabies policy is sufficiently related to furthering the public welfare that it is a legitimate exercise of the police power. Preliminarily, we note that Dr. Hoffman’s position that testing is not necessary is born out of his belief that a false-negative test result may cause an individual to forego post-exposure treatment. Appellee’s policy as set forth in COMAR 10.06.02.06(B)(3), as well as Md.Code Ann., Health-Gen. § 18—320(d)(1) (1984), is designed to help ensure that any bite victim who is bitten by a “wild” animal receives post-exposure prophylaxis treatment in the event of a positive test.

If a test is negative, appellee may still counsel in favor ¹⁸¹ of post-exposure prophylaxis treatments if the biting animal’s history indicates the wisdom of such a course of action. The test is merely one more weapon in appellee’s arsenal against rabies. Additionally, even where other experts believe alternative solutions to a problem are more appropriate than that proposed by an agency, courts may defer to the agency’s own expert opinion of the best method for resolution of the problem. See Mourning v. Family Publications Serv., Inc., 411 U.S. 856 , 371, 93 S.Ct. 1652, 1661 , 36 L.Ed.2d 318 (1973).

In this case, therefore, we may also defer to appellee’s solution to the rabies problem even if, as appellee asserts, there are legitimate alternatives. Appellants also argue that appellee’s policy, which classifies ferrets as wild animals for the purpose of administering its regulations, is wrong. As stated above, appellants presented evidence to the trial court that ferrets were not properly classified as “wild” animals and are, in fact, less likely to transmit rabies to humans than other “domesticated” animals such as dogs and cats that are merely quarantined after a biting episode. Appellee’s regulations separate animals into two categories: domesticated animals and wild animals.

See COMAR 10.06.02.02. In the event that an animal bites a human, its treatment is determined by its classification. Domesticated animals are not required to be destroyed and tested, but rather are simply quarantined for a period of time. See COMAR 10.06.02.06(B)(1),(2).

Wild animals, on the other hand, are to be destroyed and tested unless an exception is granted by the public health veterinarian. See COMAR 10.06.02.06(B)(3). Appellee classifies ferrets as wild animals. We give special deference to appellee’s interpretation of its own regulations.

See Dep’t of Health and Mental Hygiene v. Reeders Memorial Home, Inc., 86 Md.App. 447, 453 , 586 A.2d 1295 (1991). In this case, appellee’s classification of ferrets as wild animals is also supported by ACIP, a division of the CDC. ACIP recommends that ferrets be treated as wild animals because, as its publication states: ¹⁸² Exotic pets (includingferrets) and domestic animals crossbred with wild animals are considered wild animals by the National Association of State Public Health Veterinarians and the Conference of State and Territorial Epidemiologists because they may be highly susceptible to rabies and could transmit the disease. Because the period of rabies virus shedding in these animals is unknown, these animals should be killed and tested rather than confined and observed when they bite humans.

Recommendations of the Immunization Practices Advisory Committee (1991) (emphasis added). 4 Appellee’s reliance on ACIP’s recommendation is strong evidence that its