Skevofilax v. Aventis Pasteur, Inc.

WOODWARD, J. In April 2003, appellants, Helen and John Skevofilax, individually and on behalf of their son, Michael Skevofilax, a minor, filed suit in the Circuit Court for Baltimore City against appellees, several defendants involved in the manufacture of pediatric vaccines or ingredients used in those vaccines. 1 Appellants claimed that mercury in the vaccines caused Michael neurological injuries. On December 21, 2004, ⁷ the circuit court granted summary judgment to appellees after Michael’s only expert witness on specific causation abruptly ended his participation in the case. In this appeal, appellants argue that the trial court abused its discretion in denying their motion to dismiss the case without prejudice pursuant to Maryland Rule 2-506(b). For the reasons set forth in this opinion, we will reverse the court’s judgment.

BACKGROUND Appellants filed suit in the circuit court on April 14, 2003, when Michael was five years old. 2 Michael has autism. Appellants allege that thimerosal, a preservative containing mercury, caused Michael’s autism, and that he was exposed to thimerosal when he was vaccinated as a baby. They assert, inter alia, that appellees negligently and fraudulently manufactured, marketed, and distributed their products, and as a direct and proximate result, Michael ingested poisonous mercury and suffered permanent neurological, developmental, and behavioral injuries, including his autism. 3 The Skevofilaxes’ lawsuit is representative of the many vaccine injury cases throughout the country currently in litigation. On July 11, 2003, appellees had the case removed to the U.S. District Court for the District of Maryland.

Two months later, however, on September 5, 2003, the case was returned to the circuit court. The court convened a hearing on November 13, 2003, at which the parties discussed a schedule for discovery and trial. The court then issued a scheduling order that directed, inter alia, the completion of fact discovery by July 30, 2004, identification of appellants’ expert witnesses by ⁸ September 1, 2004, identification of appellees’ expert witnesses by November 1, 2004, completion of expert discovery by December 15, 2004, filing of all dispositive motions no later than February 15, 2005, and the start of trial on May 2, 2005. The parties began discovery.

According to appellees, they deposed thirteen witnesses and prepared an additional nineteen for deposition by appellants. The parties also exchanged and responded to interrogatories and requests for production of documents. The long list of witnesses and the volume of materials soon led the Skevofilaxes to doubt their ability to meet the fact discovery deadline of July 30, 2004. On June 15, 2004, they requested an extension, which the court granted on July 16, 2004, with the filing of an Amended Scheduling Order.

The new scheduling order extended the deadline for fact discovery until December 15, 2004, the deadline for identification of appellants’ expert witnesses by two weeks, to September 15, 2004, and the deadline for identification of appellees’ expert witnesses by one week, to November 8, 2004. The expert discovery deadline remained December 15, 2004. However, the court denied appellants’ request to move the trial date to September 19, 2005, because the presiding judge was scheduled to end his rotation in the civil department on August 31, 2005, and he wanted the trial completed by that time. On August 2, 2004, the Skevofilaxes requested a modification of the Amended Scheduling Order.

They sought and received, in the Second Amended Scheduling Order, three more weeks to identify their expert witnesses, with a new deadline set at October 8, 2004. The expert discovery deadline was extended five days to December 20, 2004. Discovery continued with appellees retaining expert witnesses and pursuing medical examinations of Michael. Per the Second Amended Scheduling Order, on October 8, 2004, appellants identified eight expert witnesses, four on liability and four on damages.

One of the Skevofilaxes’ liability experts was expected to testify on specific causation, that is, to express an opinion on how Michael’s vaccines caused his ⁹ autism. This expert was James Jeffrey Bradstreet, M.D., a family practitioner in Florida. Appellants faced another obstacle towards the end of October when they learned that Dr. Bradstreet could not formulate a medical opinion as to the cause of Michael’s autism without the results of certain tests that would aid him in determining Michael’s “genomic susceptibility” to thimerosal. Laboratory clinicians at the University of Arkansas were scheduled to run these tests, but “exigent circumstances” caused them to delay the completion of testing by “at least 30 to 60 days.” Without the test results, Dr. Bradstreet could not formulate an expert opinion, and without Dr. Bradstreet’s expert opinion, appellants could not present him for deposition by appellees.

By letter dated October 26, 2004, appellants’ counsel informed appellees that Dr. Bradstreet would not be prepared for his deposition, which, per the Second Amended Scheduling Order, had to be taken no later than November 5, 2004. On October 29, 2004, appellants requested a continuance of the trial, or, alternatively, dismissal without prejudice. On November 10, 2004, the court convened a hearing, at which it declined to grant a continuance or to dismiss the case without prejudice. Instead, the court directed the parties to collaborate on a new scheduling time line, or, if they could not agree, to submit separate proposals.

Based on the parties’ proposals, on November 19, 2004, the court issued a Third Amended Scheduling Order. This order directed that Dr. Bradstreet be deposed no later than December 3, 2004, without questioning about the genetic tests underway in Arkansas, and then again by January 14, 2005, if the results from those tests became available. The expert discovery deadline was extended to January 22, 2005, but the filing date for dispositive motions, February 15, 2005, and the trial date, May 2, 2005, remained the same. Appellants did not have much time to follow the Third Amended Scheduling Order because shortly after it was entered, appellants’ counsel learned that Dr. Bradstreet was ending his participation in the case.

Counsel immediately ¹⁰ notified the court and appellees’ counsel of this dramatic development by letter dated November 28, 2004. On December 1, 2004, appellants renewed their motion of October 29, 2004, to dismiss all claims without prejudice, pursuant to Rule 2-506(b). Attached to the renewed motion was an affidavit of appellants’ counsel stating that Dr. Bradstreet ended his participation “because of professional and personal commitments and time constraints.” Also on December 1, 2004, appellees filed motions for summary judgment on the grounds that without Dr. Bradstreet, appellants had no evidence of specific causation, a required element of their claims. 4 On December 21, 2004, following a hearing, the court denied appellants’ motion and granted the appellees’ motions. 5 “Critical” to the court’s decision on appellants’ motion was the “extensive” discovery that the parties had completed and “the time, effort and expense” that the parties already had expended on preliminary motions. Appellants appeal the denial of their motion for dismissal without prejudice and the related grant of appellees’ motions for summary judgment.

They present the following question for our review: Did the lower court abuse its discretion when it refused to permit [appellants], including a minor, to dismiss their claims without prejudice when the dismissal request was compelled by the unforeseen withdrawal from the case of an indispensable liability expert? Because the court denied appellants’ motion to dismiss without prejudice at the same time that it granted appellees’ ¹¹ motions for summary judgment, we review the orders together. Additional facts will be presented as necessary to our discussion of the question presented in this appeal. DISCUSSION Standard of Review Maryland Rule 2-506, which governs motions for voluntary dismissal, 6 provides in relevant part: (a) By Notice of Dismissal or Stipulation.

Except as otherwise provided in these rules or by statute, a plaintiff may dismiss an action without leave of court (1) by filing a notice of dismissal at any time before the adverse party files an answer or a motion for summary judgment or (2) by filing a stipulation of dismissal signed by all parties who have appeared in the action. (b) By Order of Court. Except as provided in section (a) of this Rule, a plaintiff may dismiss an action only by order of court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded prior to the filing of plaintiffs motion for voluntary dismissal, the action shall not be dismissed over the objection of the party who pleaded the counterclaim unless the counterclaim can remain pending for independent adjudication by the court.

Rule 2-506(b) clearly states that, absent a request to dismiss prior to the filing of an answer or a summary judgment motion or a stipulation of the parties, “a plaintiff may dismiss an action only by order of court and upon such terms and conditions as the court deems proper.” Id. (emphasis added). Whether to grant a motion for voluntary dismissal is within the court’s discretion and will not be overturned absent a showing of an abuse of that discretion. Owens-Corning Fiberglas Corp. v. Fibreboard Corp., 95 Md.App. 345, 349-50 , 620 A.2d 979 (1993). “A motion for voluntary dismiss ¹² al may be granted with or without prejudice, a decision that is discretionary with the court.” Id. at 350 , 620 A.2d 979 .

Four Factors Governing Trial Court’s Exercise of Discretion In Owens-Corning, we advised trial courts to “weight] the equities and giv[e] due regard to all pertinent factors” before ruling on a motion for voluntary dismissal under Rule 2-506(b). Id. Unfortunately, neither this Court nor the Court of Appeals has identified the “pertinent factors” that should be considered by the trial court in deciding a Rule 2-506(b) motion. The parties in the case sub judice urge us to measure this case against four factors that a number of federal courts use to review voluntary dismissal motions under Federal Rule of Civil Procedure 41(a)(2).

Maryland Rule 2-506(b) duplicates Federal Rule 41(a)(2) “in language and purpose.” 7 Roane v. Wash. County Hosp., 137 Md.App. 582 , 589 n. 2, 769 A.2d 263 (2001). The principle underlying Federal Rule 41(a)(2) is “that dismissal should be allowed unless the defendant will suffer some plain legal prejudice other than the mere prospect of a second lawsuit.” Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 2364 (2d ed.1995); see also Fisher v. P.R. Marine Mgmt., Inc., 940 F.2d 1502, 1503 (11th Cir.1991); Simons v. Southwest Petro-Chem, Inc., A Div. of Whitco Corp., 130 F.R.D. 134, 136 (D.Kan.1990). Similarly, commentators on Maryland Rule 2-506(b) have stated: “Court approval will usually be granted unless some prejudice is shown.

The mere possibility that the action will be refiled is not sufficient reason to oppose the dismissal.” P. Niemeyer & L. Schuett, Maryland Rules Commentary 287 (3d ed.2003); ¹³ accord, J. Lynch & R. Bourne, Modern Maryland Civil Procedure § 8.4(a)(2) (2d ed.2004). The Sixth, Seventh, Eighth, and Tenth Circuits have approved the use of four factors in deciding a voluntary dismissal motion. See County of Santa Fe, N.M. v. Pub. Serv.

Co. of N.M., 311 F.3d 1031 (10th Cir.2002); Grover v. Eli Lilly and Co., 33 F.3d 716 (6th Cir.1994); Paulucci v. City of Duluth, 826 F.2d 780 (8th Cir.1987); U.S. v. Outboard Marine Corp., 789 F.2d 497 (7th Cir.1986). The four factors are: (1) the defendant’s effort and the expense involved in preparing for trial, (2) excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, (3) insufficient explanation of the need to take a dismissal, and (4) the fact that a motion for summary judgment has been filed by the defendant. Paulucci, 826 F.2d at 783 . 8 We believe that these four factors further the principle underlying Rule 2-506(b) by providing an analytical framework for the determination of whether there exists plain legal prejudice to the defendant that outweighs the preference for granting the plaintiffs request for a voluntary dismissal. These factors, however, are “by no means exclusive,” and the trial court may consider “any additional factors unique to the context of [the] case.” Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir.1997) (holding that “comity, uniform interpretation of the [Hague] Convention and the importance of giving ¹⁴ import to the Hague Convention’s intended purpose” were relevant to the motion to dismiss); see County of Sante Fe, N.M., 311 F.3d at 1048 (recognizing the principle of res judicata as a factor “unique” to the particular circumstances of the case).

In applying the above four factors and any other relevant factors, the trial court can weigh one factor more than another, because the particular facts of the case may demand more attention to one factor than to another. See County of Sante Fe, N.M., 311 F.3d at 1049 n. 14 (holding that the “unique” factor in the case outweighed most of the traditional factors that favored granting the motion to dismiss). Moreover, “[e]ach factor need not be resolved in favor of the moving party for dismissal to be appropriate, nor need each factor be resolved in favor of the opposing party for denial of the motion to be proper.” Ohlander, 114 F.3d at 1537 . In reaching its conclusion, the trial court “should endeavor to insure substantial justice is accorded to both parties, and therefore the court must consider the equities not only facing the defendant, but also those facing the plaintiff.” Brown v. Baeke, 413 F.3d 1121, 1124 (10th Cir.2005) (quoting County of Sante Fe, N.M., 311 F.3d at 1048 ); see Owens-Corning, 95 Md.App. at 350 , 620 A.2d 979 .

In sum, in ruling on a Rule 2-506(b) motion, the task of the trial judge is to determine: (1) the presence, vel non, of each factor, (2) the extent to which the presence or absence of each factor favors one party or the other, and (3) the appropriate weight to be given to each factor, with due regard to the equities of the parties and the principle underlying the rule, to wit, dismissal is preferred unless the defendant will suffer plain legal prejudice. 9 ¹⁵ In the instant case, the trial court considered each of the four factors in denying appellants’ motion for voluntary dismissal. We shall now review the trial court’s application of the four factors to the facts of this case. Application of the Four Factors 1. Effort and Expense The trial court determined that appellees’ effort and expense in preparing for trial weighed in favor of denying appellants’ motion for voluntary dismissal.

In support of this determination, the court found that there was “significant effort and expense on all sides in preparing for trial.” This is undeniably true. By December 1, 2004, the parties already had taken thirty-two depositions, exchanged voluminous documents, and spent considerable time and money developing their respective cases. Nonetheless, appellants point out that most of the witnesses deposed in the instant case are witnesses in other vaccine injury cases around the country. Indeed, nineteen of the depositions that occurred were cross-noticed with other vaccine injury cases, leaving only thirteen depositions that were specific to this case.

Regardless of the outcome in the instant case, therefore, the effort expended in preparing and/or deposing the cross-noticed witnesses will not be wasted. See P.R. Mar. Shipping Auth. v. Leith, 668 F.2d 46 , 50 (1st Cir.1980) (allowing voluntary dismissal after extensive discovery had been conducted because the discovered information could be used in another pending suit). ¹⁶ Moreover, in considering effort and expense, the focus is not the amount of time or money per se that has been spent on the litigation. The focus should always remain on the substantive question of whether and to what extent the defendant was prejudiced by the time and money expended.

See D’Alto v. Dahon Cal. Inc., 100 F.3d 281, 283 (2d. Cir.1996) (stating that “[a] voluntary dismissal without prejudice under Rule 41(a)(2) will be allowed ‘if the defendant will not be prejudiced thereby’ ”). In this regard, not only will the nineteen cross-noticed depositions remain useful to appellees, but, as appellants suggest, some of the thirteen “case specific” depositions may not need to be retaken or may need only to be updated if appellants’ claims are refiled.

Also, at the time of the hearing on appellants’ motion, one month remained for expert discovery, and appellants’ four liability experts and one of appellees’ experts had not been deposed. 2. Diligence We next consider whether excessive delay or lack of diligence contributed to appellants’ request for dismissal without prejudice. Dismissal with prejudice of a party’s complaint “is warranted when there is a clear record of delay or contumacious conduct by the plaintiff.” Jones v. Smith, 99 F.R.D. 4, 6 (D.Pa.1983); see also Edwards v. Demedis, 118 Md.App. 541, 565 , 703 A.2d 240 (1997) (affirming dismissal of claim with prejudice because claim had been pending for more than a year-and-a-half, and, without legitimate reason, plaintiffs requested dismissal one month before trial). Dismissal with prejudice is a harsh sanction that must be proportionate to the transgression of the party whose action is dismissed.

See Doe v. Cassel, 403 F.3d 986, 990 (8th Cir.2005). To warrant dismissal with prejudice, therefore, plaintiff must have acted “intentionally as opposed to accidentally or involuntarily.” Id. The trial court specifically found that there was no lack of diligence on the part of appellants. The court stated: “I will say, as all counsel have stated here, there has been no lack of diligence whatsoever on behalf of [appellants’ counsel] in the ¹⁷ context of the plaintiffs’ efforts in this case.” (emphasis added).

The evidence in this case fully supports the court’s finding. Appellants endeavored to follow the discovery schedule set by the court throughout the period between November 13, 2003, when they first met with the trial judge to discuss a scheduling time line for the case, and November 23, 2004, when they learned of Dr. Bradstreet’s withdrawal. When they encountered difficulties meeting the court’s deadlines, appellants sought several modifications of the scheduling order. The court granted only minor adjustments to the scheduling order, never changing the trial date or the date for filing dispositive motions.

For example, the deadline for appellants’ expert designation was moved only five weeks, from September 1, 2004 to October 8, 2004. Appellants named their expert witnesses on October 8, 2004. It was not until the unforeseen events of the delay in the test results from the University of Arkansas in October 2004, and the withdrawal of Dr. Bradstreet in November 2004, that appellants’ efforts to comply with their discovery obligations were ultimately frustrated. Even then, appellants promptly notified the court and opposing counsel.

All of the aforementioned circumstances, therefore, demonstrated appellants’ diligence in