Women First OB/GYN Associates, L.L.C. v. Harris , 232 Md. App. 647 ( 2017 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 00315
September Term, 2016
______________________________________
WOMEN FIRST OB/GYN ASSOCIATES,
L.L.C.
v.
YOLANDA HARRIS
______________________________________
Eyler, Deborah S.,
Reed,
Moylan, Jr., Charles E.,
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Eyler, Deborah S., J.
______________________________________
Filed: May 31, 2017
The primary question in this case is whether the voluntary dismissal with prejudice
of a tort claim against an employee for no consideration and in the absence of a release
bars the prosecution of the same claim against the employer based solely on vicarious
liability. We hold that it does not.
FACTS AND PROCEEDINGS
In the Circuit Court for Montgomery County, Yolanda Harris, the appellee, filed a
one-count complaint for medical negligence against Women First OB/GYN Associates,
LLC (“Women First”), the appellant, and LaKeischa McMillan, M.D., an obstetrician-
gynecologist (“OB-GYN”) employed by Women First. 1 Ms. Harris alleged that Dr.
McMillan negligently performed a laparoscopic hysterectomy, causing an injury to her
left ureter, and that Women First was liable for Dr. McMillan’s negligence under the
doctrine of respondeat superior. There was no claim of independent negligence against
Women First. Women First and Dr. McMillan filed answers; they were represented by
the same counsel.
Discovery proceeded and the case was set in for a jury trial to begin on December
7, 2015. On December 1, 2015, the parties filed a stipulation, signed by counsel, that Dr.
McMillan was an “employee” of Women First and was “acting within the scope of her
employment” “at all times while . . . treating [Ms. Harris][.]”
1
Ms. Harris also sued C. Douglas Lord, M.D., the owner of Women First. She
voluntarily dismissed her claim against him almost a year before trial.
The trial commenced as scheduled. At the very outset, before the venire was
brought in, defense counsel told the court that “through some discussions just before trial
we’ve decided to dismiss Dr. McMillan. So the only defendant would be [Women
First.]” 2 The court responded, “Okay.” In case the court had not seen it, defense counsel
referenced the filed stipulation that Dr. McMillan had been acting within the scope of her
employment at all relevant times. Nothing more was said about the dismissal of Dr.
McMillan that day. Motions and jury selection took up the rest of the day.
At the beginning of the second day of trial, before the jury was brought in, the
court clerk informed the judge that defense counsel “had a question about stipulation as
to Defendant [Dr. McMillan].” Addressing counsel, the judge stated, “I’m told by [the
clerk] that there’s a question about the language of the stipulation regarding Dr.
McMillan’s portion being dismissed.” Defense counsel responded that there was no
written stipulation about that. Both counsel said the stipulation could be done “orally.”
Counsel for Ms. Harris then stated:
So the plaintiff dismisses with prejudice the claims against Dr. Lakeischa
McMillan . . . [i]ndividually. The stipulation is that at all times, she was
acting as an employee, agent and servant of Women First . . . and that they
are responsible for any actions of Lakeischa McMillan, M.D.
Counsel agreed that the jury would be instructed that Dr. McMillan was acting as an
employee, agent, and servant of Women First. There was no ruling sought or made by
2
This statement is transcribed in the record as having been made by defense
counsel, although it is odd that he would frame the decision as having been made by him,
as opposed to by counsel for Ms. Harris.
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the court. A docket entry made that day states, however: “Plaintiff’s oral motion
dismisses the claims with prejudice as to defendant Lakeischa McMillan MD – Granted.”
There is no separate written order memorializing the court’s ruling.
Ms. Harris testified that Dr. McMillan performed the laparoscopic hysterectomy
on April 8, 2010. Unlike a traditional hysterectomy, in which the physician opens the
patient surgically, a laparoscopic hysterectomy is performed by creating small incisions
through which a laparoscope is inserted and used to carry out the procedure. Several
days after the hysterectomy, Ms. Harris noticed fluid leaking from one of her incisions.
The leaking stopped but sometime around April 21, 2010, when she had a follow up visit
with Dr. McMillan, she began to experience discomfort when urinating and with bowel
movements. These problems persisted and she also developed abdominal bloating and
hardness. At the beginning of May 2010, her primary care physician referred her to a
urologist.
The urologist diagnosed Ms. Harris with an injured left ureter, the tube-like
structure that connects the left kidney to the bladder. The injury was causing urine to
escape her left ureter and fill her abdomen. Ms. Harris was referred to radiologist
Stephen Karr, M.D., at Holy Cross Hospital, to perform a pyelogram. From that study,
Dr. Karr determined the location of the injury to the left ureter and placed a nephrostomy
tube and collection bag, redirecting urine from the left kidney. The tube and bag
remained in place for five and a half months, until the injury healed. Ms. Harris then
underwent surgery to reattach her left ureter to her bladder.
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Ms. Harris called Richard Luciani, M.D., an OB-GYN, and Barry Aron, M.D., a
urologist, as expert witnesses. They testified that Dr. McMillan breached the standard of
care in performing the laparoscopic hysterectomy, causing the injury to the left ureter and
the need for subsequent treatment and surgery. 3 We shall discuss the details of their
testimony in addressing Question III.
At the close of Ms. Harris’s case, Women First moved for judgment. Defense
counsel argued that the dismissal with prejudice of Ms. Harris’s claim against Dr.
McMillan operated as a release or an adjudication upon the merits in favor of Dr.
McMillan; and because Dr. McMillan was “the sole agent for which Women[] First could
be held vicariously liable[,]” there could be no liability against Women First as a matter
of law.
Ms. Harris’s lawyer responded that the dismissal with prejudice was not a release
or an adjudication upon the merits. The claim against Dr. McMillan simply was
“drop[ped]” “without consideration,” and the dismissal was not intended to extinguish
Ms. Harris’s claim against Women First. He maintained that the dismissal along with the
written stipulation that Dr. McMillan was acting as an employee of Women First and
within the scope of her employment were “a culmination” of “discussions and
negotiations” with defense counsel, who knew that Ms. Harris had no intention to
3
There was no criticism of any of the follow-up care rendered by Women First.
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preclude liability on the part of Women First. 4 Alternatively, he asked the court to
exercise its revisory power under Rule 2-535 and “nunc pro tunc reinstate the claim
against Dr. McMillan[.]”
In rebuttal, counsel for Women First argued that Ms. Harris’s intent in dismissing
Dr. McMillan with prejudice was not relevant; and the court did not have revisory power
to reinstate her claim against Dr. McMillan.
The court directed counsel to submit written memoranda the next day in support of
and opposition to Women First’s motion for judgment. Counsel did so. In her
opposition, Ms. Harris asked as an alternative that, if the court were inclined to grant the
motion, it revise the dismissal to one without prejudice.
The court denied the motion on the morning of the following trial day. It
concluded that Ms. Harris’s negligence claim against Women First remained viable even
though she had dismissed her claim against Dr. McMillan with prejudice. It noted that
under Maryland law, Ms. Harris could have sued Women First under a theory of
respondeat superior without suing Dr. McMillan at all. It ruled that the voluntary
dismissal with prejudice of Dr. McMillan was neither a release nor an adjudication upon
the merits in favor of Dr. McMillan so as to preclude vicarious liability on the part of
4
Dr. McMillan had filed for bankruptcy, but Ms. Harris’s counsel had received
approval from the bankruptcy court to lift the automatic stay, so long as any judgment
against her were collected against her insurance only. Counsel nevertheless decided that
it was not worth pursuing Dr. McMillan individually. As he pointed out, there was no
settlement or consideration in exchange for dismissing the claim against Dr. McMillan.
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Women First and found that Ms. Harris did not intend to foreclose her claim against
Women First by dismissing her claim against Dr. McMillan.
The court went on the say that even though it had denied the motion for judgment
and it was not necessary for it to exercise revisory power to change Ms. Harris’s “motion
to dismiss to one without prejudice[,]” it had the power to do so. It then proceeded to do
so:
I don’t believe I need to [exercise revisory power] based on the ruling I’ve
made, but so the record is clear, I do believe that I do still retain revisory
power, because this was the plaintiff’s action, it is not a judgment that has
been entered, and it is an interlocutory proceeding, as I understand the
statute and the case law, so that it is clear that this Court has found that the
plaintiff’s claim for respondeat superior does remain active,
notwithstanding the action of the dismissal, which I believe was fully part
of a negotiating discussion that was between plaintiff and defendant.
I am going to exercise revisory power and amend [Ms. Harris’s]
motion to dismiss [Dr. McMillan] as a motion to dismiss without prejudice,
because I do not believe that the facts in any way support [Ms. Harris’s
lawyer’s] having endeavored to undermine the claim of [their] client as on
the cusp of the trial beginning and was in response to the issue of if and
when any judgment might be obtained and Dr. McMillan’s ability to pay
that judgment individually.
The court directed the clerk to enter a new, separate docket entry amending Ms. Harris’s
“motion to dismiss as to Dr. McMillan individually without prejudice[.]” That entry
states:
Court revises plaintiff’s motion/stipulation at [previous docket entry] and is
amended to dismiss as to Dr. McMillan individually without prejudice.
There was no written order dismissing Ms. Harris’s claim against Dr. McMillan with or
without prejudice.
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In its case, Women First called Dr. McMillan, who defended her care, and three
expert witnesses: Craig Dickman, M.D., an OB-GYN; Harry Johnson, M.D., an OB-
GYN and urogynecologist; and Stanley Redwood, M.D., a urologist. As with Ms.
Harris’s experts, we shall discuss their testimony when we address Question III.
After Women First rested its case, it renewed its motion for judgment on the
grounds previously asserted. The court denied the motion. Over objection, Ms. Harris’s
lawyer called Dr. Karr as a rebuttal witness.
The jurors returned a verdict in favor of Ms. Harris, finding that Dr. McMillan had
negligently caused the injury to Ms. Harris’s left ureter and that Women First was liable
to Ms. Harris for Dr. McMillan’s negligence. They awarded Ms. Harris $426,079.50 in
damages. 5
Women First filed a timely motion for judgment notwithstanding the verdict
(“JNOV”), arguing, on the same grounds raised in its motion for judgment, that the case
should not have been submitted to the jury. 6 Women First requested, in the alternative, a
new trial. The parties filed several memoranda in support and opposition. The court held
a hearing and issued an opinion and order denying the JNOV motion.
5
The award was $62,292.19 for past medical expenses, $13,787.31 for past wage
loss, and $350,000 in non-economic damages.
6
Women First also filed a motion for remittitur to limit the damages awarded for
past medical expenses to those actually paid by Harris. The motion was granted.
-7-
On appeal, Women First presents three questions, which we have rephrased as
follows: 7
I. Did the trial court err by denying Women First’s motions for
judgment and for JNOV?
II. Did the trial court abuse its discretion by revising Ms. Harris’s
motion to dismiss Dr. McMillan to be “without prejudice” rather
than “with prejudice”?
III. Did the trial court err by permitting Ms. Harris to call Dr. Karr as a
hybrid fact and expert rebuttal witness?
We answer these questions in the negative and shall affirm the judgment of the
circuit court.
DISCUSSION
I.
Women First contends Ms. Harris’s dismissal with prejudice of her negligence
claim against Dr. McMillan discharged any vicarious liability of Women First, as a
matter of law. It argues that, in Maryland, a voluntary dismissal with prejudice is an
“adjudication [up]on the merits” in favor of the party being dismissed, and when that
7
As worded by Women First, the questions presented are:
I. Whether appellee’s voluntary dismissal with prejudice of Dr.
McMillan, the agent, precluded appellee’s vicarious liability claim
as to appellant Women First, the principal, as a matter of law?
II. Whether the trial court abused its discretion by exercising revisory
power to change appellee’s voluntary dismissal with prejudice to a
dismissal without prejudice?
III. Whether the trial court erred in permitting appellee to call and elicit
factual and undesignated expert testimony from Steward Karr, M.D.,
as a rebuttal witness?
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party is an employee, the dismissal precludes respondeat superior liability on the part of
the employer. Therefore, Ms. Harris’s voluntary dismissal of her claim against Dr.
McMillan with prejudice foreclosed her claim against Women First, regardless of
whether Ms. Harris intended that effect, and the court erred in denying its motions for
judgment and JNOV.
Ms. Harris responds that when there is no claim of independent liability on the
part of the employer, but only of liability under respondeat superior based on the
employee’s wrongdoing, a dismissal with prejudice of the claim against the employee
without a settlement or exchange of consideration is not a release of claims or an
adjudication upon the merits and therefore does not foreclose the plaintiff’s claim against
the employer.
Whether the court erred in denying Women First’s motions for judgment and
JNOV is a question of law that we review de novo. Walter v. Gunter, 367 Md. 386, 392
(2002) (“[W]here the order involves an interpretation and application of Maryland
statutory and case law, [the appellate court] must determine whether the lower court’s
conclusions are ‘legally correct’ under a de novo standard of review.”).
Under the doctrine of respondeat superior, an employer is vicariously liable for a
tort committed by its employee while acting within the scope of his employment:
Respondeat superior, or vicarious liability as it is also known, is a principle
of tort law which “means that, by reason of some relationship existing
between A and B, the negligence of A is to be charged against B, although
B has played no part in it, has done nothing whatever to aid or encourage it,
or indeed has done all that he possibly can to prevent it.”
-9-
James v. Prince George’s Cty, 288 Md. 315, 332 (1980), superseded by statute on other
grounds, as recognized in Prince George’s Cty v. Fitzhugh, 308 Md. 384 (1987) (quoting
W. Prosser, Handbook of the Law of Torts § 69, at 458 (4th ed. 1971)). As we explained
in Rivera v. Prince George’s County Health Department., 102 Md. App. 456, 475–76
(1994), “[v]icarious liability is . . . the attribution of a wrongdoer’s actions to an innocent
third party by virtue of the relationship between the wrongdoer and the third party” so
that, upon a showing of agency, there is not one, but two, sources of recovery.
It is settled law in Maryland that a plaintiff may sue an employer in tort based on
the wrongful conduct of the employee, under respondeat superior, without suing the
employee. Blaen Avon Coal Co. v. McCulloh, 59 Md. 403, 418 (1883) (stating that when
agent commits tort while acting within the scope of his employment, “he and his
employer may be sued separately or jointly, at the election of the injured party”); see also
Southern Mgmt. Corp. v. Taha, 378 Md. 461, 482 (2003). In other words, the employee
is not a necessary party. In the suit against the employer, the plaintiff need only prove
that the employee committed the tort and did so while acting within the scope of his
employment to establish the employer’s liability. Taha, 378 Md. at 481–82
Thus far, the Maryland appellate courts have recognized two situations in which
the resolution of a tort claim against an employee acting within the scope of his
employment will preclude respondeat superior liability on the part of the employer:
exoneration of the employee, Southern Management Corp. v. Taha, supra; and release of
the employee, Anne Arundel Medical Center, Inc. v. Condon, 102 Md. App. 408 (1994).
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In Taha, the plaintiff sued two employees of Southern Management Corporation
(“SMC”) for malicious prosecution and also sued SMC based solely on respondeat
superior. A jury returned a special verdict in favor of the employees, finding that they
did not commit the alleged wrong, but against SMC. The case reached the Court of
Appeals, which reversed, holding that the verdict against SMC “[could not] stand”
because it was “irreconcilably inconsistent” with liability under the doctrine of
respondeat superior. Id. at 479. The Court explained that “a corporation without the
capacity to exercise judgment” cannot be held liable based on respondeat superior
“without evidentiary proof that one of its employees, acting within the scope of that
person’s employment duties, engaged in conduct sufficient to form a prima facie case of
[the alleged tort].” Id. at 481 (citing DiPino v. Davis, 354 Md. 18, 48 (1999), for the
proposition that “where liability is derivative, ‘recovery may not be had against the entity
if the employee is found not to be liable or is released’”). “[W]hen the jury has
exonerated the co-defendant employees whose conduct was alleged to be the sole basis of
the claim for liability[,]” the employer cannot be held liable vicariously. Id. at 486
(additional citations omitted).
In Condon, the plaintiff filed suit against a pathologist and the hospital that
employed him, alleging that by negligently misreading tissue samples the pathologist
failed to diagnose her breast cancer. Her claim against the hospital was based solely on
respondeat superior. On the eve of trial, she entered into a settlement with the
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pathologist, executing a release of all claims against him in consideration for the payment
of $1 million dollars. 8 The release stated that it was not intended to release the plaintiff’s
claim against the hospital. The hospital, which did not consent to the settlement or the
release, promptly moved for summary judgment, arguing that by operation of law the
release of the plaintiff’s claim against the pathologist released her vicarious liability
claim against the hospital. The court denied the motion, and the case was tried against
the hospital, resulting in a jury verdict for Condon.
The hospital appealed and we reversed. We explained that under the common law
of agency, which prevails in Maryland, the release of an agent discharges his principal
from liability. Condon, 102 Md. App. at 414. Also under the common law, when two or
more tortfeasors jointly cause an injury to a plaintiff, the release of one joint tortfeasor
releases them all. The latter common law rule has been superseded by the Maryland
Uniform Contribution Among Tort-feasors Act (“UCATA”), however. Md. Code (1974,
2013 Repl. Vol.), § 3-1401 et seq. of the Courts and Judicial Proceedings Article (“CJP”).
The UCATA provides that a plaintiff’s release of a claim against one joint tortfeasor does
not discharge the others from liability unless the release so provides, but reduces the
plaintiff’s claim against the remaining joint tortfeasors. CJP § 3-1404.
In deciding whether the release of the pathologist discharged the hospital from
liability, we analyzed whether the defendants were joint tortfeasors, to whom the
8
The pathologist had died and the settlement actually was with his estate. That
made no difference in the outcome.
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UCATA would apply, or were a principal and agent, to whom the common law of agency
would apply. We concluded that they were not joint tortfeasors, who each are “actually
independently at fault for their own wrongful acts.” Condon, 102 Md. App. at 417. The
hospital did not have any independent fault—its liability was based solely on the tortious
conduct of the pathologist, with which it was in an agency relationship—and so they
were a principal and agent. Id. at 416. See also Chilcote v. Von Der Ahe Van Lines, 300
Md. 106, 114 (1984) (“[W]here the liability of the master is vicarious, master and servant
comprise but one ‘pro rata share’” for purposes of the UCATA.).
“Absent independent wrongdoing by the principal, the release of an agent will
also release the principal as a matter of law[,]” for, in that scenario, the release of the
agent “removes the only basis for imputing liability to the principal.” Condon, 102 Md.
App. at 421. We explained:
To hold otherwise would undermine the stated purpose underlying UCATA
of promoting settlements among joint tortfeasors. See Lahocki v. Contee
Sand & Gravel Co., 41 Md.App. 579, 620 (1979), rev’d on other grounds
sub nom. General Motors Corp. v. Lahocki, 286 Md. 714 (1980). It is
unlikely that an agent would ever settle with a plaintiff if he still remained
liable to indemnify his principal for any further amount the principal might
be compelled to pay to the plaintiff. . . .
If a plaintiff, under such a hypothetical legal scheme, were able to find an
agent willing to settle, to allow the plaintiff to then proceed additionally
against a vicariously liable principal would, in essence, permit the plaintiff
“two bites out of the apple.” If the principal could then seek indemnity
from the agent, the agent’s earlier settlement would be of little solace to
him. Such a double exposure would act as a disincentive for agents ever to
agree to a settlement.
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Id. at 422–23. 9 Because common law agency principles dictate that the release of a claim
against the employee discharges the employer’s vicarious liability for the employee’s
wrongdoing, the plaintiff’s release of her claim against the pathologist discharged her
claim against the hospital, as a matter of law, irrespective of her intent. See also Rivera,
102 Md. App. at 477 (“[T]he release of an agent automatically release[s] the principal”
under the common law, which remains unchanged in Maryland.).
In the case at bar, there was no jury trial in which Dr. McMillan was exonerated,
as happened in Taha. Quite the contrary, the jury found that Dr. McMillan was
negligent, and returned its verdict against Women First on that basis. And, unlike in
Condon, Ms. Harris did not release her claim against Dr. McMillan, nor did she receive
any consideration from Dr. McMillan for her dismissal with prejudice. The question is
whether the voluntary dismissal with prejudice operated as an “adjudication upon the
merits” of the negligence claim against Dr. McMillan so as to have the same effect on the
solely derivative claim against Women First as an exoneration or a release. There is no
Maryland case addressing this question.
Before analyzing the issue, we first review the process governing the voluntary
dismissal of a claim in a civil action in the circuit court, which is set forth in Rule 2-
9
There was no mention in Condon of whether a dismissal with prejudice of the
plaintiff’s claim against the pathologist was filed. Ordinarily, one would be.
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506. 10 All or part of a claim may be voluntarily dismissed without leave of court by
filing a notice, before the adverse party files an answer, or by filing a stipulation signed
by all the parties to the claim. Md. Rule 2-506(a). Otherwise, a claim only may be
voluntarily dismissed by order of court, and the court has discretion over whether to
allow the dismissal and over the “terms and conditions” of the dismissal. Md. Rule 2-
506(c). Unless otherwise specified in the notice, stipulation, or order, a voluntary
dismissal is without prejudice. Md. Rule 2-506(d). An exception exists when a party
who previously has dismissed a claim without prejudice refiles the same claim and then
files a second notice of dismissal. Id. In that circumstance, the notice of dismissal
“operates as an adjudication upon the merits[.]” Id. The rule does not use the phrase
“with prejudice” and does not otherwise expressly address the effect of a voluntary
dismissal of a claim.
To support its position that Ms. Harris’s voluntary dismissal with prejudice of her
claim against Dr. McMillan was an “adjudication upon the merits” of that claim, and
therefore had the legal effect of discharging the respondeat superior claim against
Women First, Women First relies upon this Court’s decisions in Byron Laskey &
Associates v. Cameron-Brown Co., 33 Md. App. 231 (1976), and Bryan v. State Farm
Mut. Auto. Ins., 205 Md. App. 587 (2012); the Supreme Court’s decision in Semtek
10
Unlike in the federal courts, in Maryland there is no separate rule governing
involuntary dismissals of civil claims. See Fed. R. Civ. Proc. 41(b) (“Involuntary
Dismissal; Effect”). Rule 2-507 governs dismissals for certain instances of lack of
jurisdiction or lack of prosecution. The entry of dismissal under that rule is made by the
clerk and is “without prejudice.” Md. Rule 2-507(f).
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International Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001); and several federal
courts of appeal decisions.
In Byron Laskey, we addressed whether the circuit court was empowered to
dismiss a claim with prejudice, under a predecessor to Rule 2-506, without having been
asked to do so and without a hearing on the merits. General partners sued a lender for
declaratory and injunctive relief to forestall foreclosure on a deed of trust. After
injunctive relief was denied, they sought court approval to voluntarily dismiss their
claims without prejudice, under former Rule 582. That rule required a party to obtain
leave of court to voluntarily dismiss a claim and stated that the court’s order “shall
specify whether dismissal is with or without prejudice.” 33 Md. App. at 232 (quoting
former Md. Rule 582(a)). Over the general partners’ objection and without a hearing on
the merits, the circuit court dismissed their complaint with prejudice, not without
prejudice.
In holding that the circuit court lacked authority to do so, we stated: “A dismissal
with prejudice is a final adjudication and it is fundamental that an action can be finally
adjudicated over objection of the plaintiff only after a hearing on the merits or through
imposition of sanctions for default or conduct proscribed by law.” 33 Md. App. at 234
(additional citations omitted). Women First seizes upon this language, but the case is
distinguishable. It did not involve tort liability or vicarious liability, and given its
procedural posture, the most our comment about a “final adjudication” can be taken to
mean is that the dismissal of the general partners’ claims with prejudice, precluding them
from re-filing the same suit, had the same effect on them as a final adjudication of their
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claims. The general partners could do nothing more to pursue relief. We did not say that
the dismissal with prejudice was an adjudication upon the merits of the claims that were
dismissed nor did we analyze the effect, if any, the dismissal with prejudice would have
on anyone else.
In Bryan, we were concerned with the collateral estoppel effect of a verdict and
settlement in a New York case on a Maryland case that shared a common party. A driver
and passenger involved in an automobile accident sued Bryan, another driver involved in
the same accident, in a New York court. The case was bifurcated and the jury returned a
verdict against Bryan on liability. Before the damages phase of the trial began, the
parties settled: Bryan paid $30,000, and the plaintiffs dismissed their claims with
prejudice. Bryan then sued his uninsured motorist carrier in a Maryland court, claiming
that the accident was caused by a phantom driver. The carrier moved to dismiss on the
basis of collateral estoppel on the issue of liability. The circuit court granted the motion,
and we affirmed.
We held that the New York jury’s liability verdict against Bryan, combined with
the settlement and dismissal of the claims against him with prejudice, which “operate[d]
at a minimum, as a bar to further action on the same claim[,]” had preclusive effect
against him in his claim against the carrier. 205 Md. App. at 603, 605. Clearly, in that
case we were not addressing the effect, if any, of a voluntary dismissal with prejudice
only, and in particular whether it operated as an adjudication upon the merits. We also
were not addressing vicarious liability. We were addressing the effect of an actual
adjudication upon the merits on the issue of negligence resulting in a verdict, but not a
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judgment, followed by a settlement and dismissal with prejudice, on a later claim brought
by the person whose negligence had been actually adjudicated. The case is not
particularly helpful to our analysis for these reasons.
The Supreme Court’s decision in Semtek, which involves res judicata, is
somewhat helpful but, as we later shall explain, does not advance Women First’s
position. In Semtek, an action for inducement to breach a contract and various business
torts was brought in a California state court and then was removed to a California federal
district court based on diversity of citizenship. The defendant moved to dismiss on the
ground that the claims were barred by California’s two-year statute of limitations. The
federal district court granted the motion and entered an order of involuntary dismissal,
under Fed. R. Civ. Proc. 41(b), including (at the defendant’s request) language that the
dismissal was “‘on the merits’” and “‘with prejudice.’” 531 U.S. at 499.
Thereafter, the plaintiff brought the same claims against the same defendant in a
Maryland circuit court, within Maryland’s three-year statute of limitations. The
defendant moved to dismiss on the ground of res judicata, arguing that the federal district
court’s involuntary dismissal of the claims was an adjudication upon the merits, which is
an element of that defense. The circuit court granted the motion, and this Court affirmed.
After the Court of Appeals denied a petition for writ of certiorari, the Supreme Court took
the case.
The defendant advocated that Rule 41(b) gave the federal district court’s dismissal
order preclusive effect. That rule provides, with certain exceptions, that unless the court
orders otherwise, an involuntary dismissal “operates as an adjudication upon the
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merits.” 11 Fed. R. Civ. Proc. 41(b). The Supreme Court observed that in the context of
res judicata, an “adjudication upon the merits” ordinarily means an adjudication that
“‘pass[es] directly on the substance of [a particular] claim’ before the court.” 531 U.S.
at 501-02 (quoting Restatement (Second) of Judgments § 19, Comment a, at 161 (1980)).
The meaning of “adjudication upon the merits” has gradually changed with time,
however, often being applied to judgments that do not pass on the merits. For example,
the Court noted, the involuntary dismissal of a claim in one state court on the ground of
that state’s statute of limitations usually does not have preclusive effect when the same
claim is brought in another state court that has a different statute of limitations.
In ascertaining the meaning of “adjudication upon the merits,” the Court looked to
Rule 41(a), which governs voluntary dismissals. That rule “makes clear that an
‘adjudication upon the merits’ is the opposite of a ‘dismissal without prejudice[.]’” Id. at
505. (Neither Rule 41(a) nor Rule 41(b) uses the “with prejudice” nomenclature.) The
Court determined that the “primary meaning of ‘dismissal without prejudice’” in Rule
41(a) “is dismissal without barring the plaintiff from returning later, to the same court,
with the same underlying claim.” Id. So the only effect of the California federal district
court’s involuntary dismissal of the plaintiff’s claims was to bar the plaintiff from refiling
those same claims in that same court. Its effect was not to operate as an adjudication
upon the merits for purposes of res judicata.
11
The exceptions are for involuntary dismissals for lack of jurisdiction, improper
venue, and failure to join a necessary party. Fed. R. Civ. Proc. 41(b).
-19-
Ultimately, the Court decided that the claim preclusion effect of an involuntary
dismissal by a federal district court sitting in diversity is a matter of federal common law;
and because “state, rather than federal, substantive law is at issue there is no need for a
uniform federal rule.” 531 U.S. at 508. To discourage forum shopping in the federal
courts, the Court adopted “as the federally prescribed rule of decision . . . the law that
would be applied by state courts in the State in which the federal diversity court sits[,]”
unless incompatible with federal interests. Id. at 508–09. Thus, the claim preclusion
effect of the California federal district court’s dismissal “‘upon the merits’ of [the] action
on statute-of-limitations grounds is governed by a federal rule that in turn incorporates
California law of claim preclusion[.]” Id. at 509. The Court reversed, remanding the
case for the Maryland circuit court to make that decision.
For our purposes, Semtek stands for the proposition that an “adjudication upon the
merits” may not have the same meaning procedurally as it does substantively. An order
that is an adjudication upon the merits under Rule 41(b), so as to prevent the same
plaintiff from re-filing the same claim in the same court, is not necessarily an
adjudication upon the merits for preclusive effect, as an element of the substantive law of
the defense of res judicata. In other words, context matters. We shall keep this in mind
as we consider the cases Women First cites to support its position that the dismissal with
prejudice of Ms. Harris’s claim against Dr. McMillan precluded her from recovering
against it based on respondeat superior and the cases Ms. Harris cites for the opposite
position.
-20-
Women First places greatest reliance upon Harrison v. Edison Bros. Apparel
Stores, Inc., 924 F. 2d 530 (4th Cir. 1991). There, the plaintiff brought suit in a North
Carolina state court against her former supervisor (Walls), for battery and intentional
infliction of emotional distress, and against their former employer (Edison), for those
torts under respondeat superior. She also included direct claims against Edison for
wrongful discharge and negligent retention. Edison removed the case to federal court
based on diversity jurisdiction. Walls filed a counterclaim for intentional infliction of
emotional distress.
Thereafter, the plaintiff and Walls entered into a settlement by which each agreed
to voluntarily dismiss his/her claim against the other “with prejudice,” by stipulation.
Edison did not know about the stipulation until it was filed. Upon learning of it, Edison
moved for summary judgment on the claims against it, arguing that the plaintiff’s
dismissal with prejudice of her claims against Walls precluded her from recovering
against it on those claims, as any liability it could have on those claims was solely
derivative. The court granted the motion as to the derivative battery and intentional
infliction of emotional distress claims, but denied the motion as to the direct claim of
negligent retention. It also granted a motion to dismiss the wrongful discharge claim and
certified that there was no just reason to delay for purposes of appeal.
The Fourth Circuit affirmed the district court’s grant of summary judgment in
favor of Edison on the battery and intentional infliction of emotional distress claims. (It
reversed on the wrongful discharge claim). It reasoned that “[a] voluntary dismissal with
prejudice under Fed. R. Civ. P. 41(a)(2) [i.e., by stipulation] is a complete adjudication
-21-
on the merits of the dismissed claim.” Id. at 534 (additional citations omitted).
“Therefore, Walls has been adjudicated not liable for battery or intentional infliction of
emotional distress.” Id. (emphasis added). Because, under the substantive law of North
Carolina, which applied, “[t]he exoneration of an employee/agent is fatal to a vicarious
claim against an employer/principal[,]” there was no liability that could be imputed to
Edison. Id. (additional citations omitted). 12
The Harrison court primarily relied upon three cases in reaching its decision.
Interestingly, they all are cases in which dismissals with prejudice were given by
plaintiffs in consideration for payment by settling defendants. In Citibank, N.A. v. Data
Lease Financial Corp., 904 F. 2d 1498 (11th Cir. 1990), a borrower filed a counterclaim
against a bank and a third party claim against seven of the bank’s directors. The
counterclaim against the bank was based solely upon the alleged wrongdoing of the
directors. The borrower settled its claims against the directors for $1 million dollars and
dismissed them “with prejudice,” in an order entered pursuant to Rule 41(a). The bank
moved for summary judgment on the borrower’s counterclaim, arguing that its only
liability was derivative of the liability of the directors, and the borrower’s dismissal of its
claims against the directors with prejudice was an adjudication upon the merits that
barred the borrower’s counterclaim against it.
12
One of the judges on the Harrison panel dissented, but did not write a dissenting
opinion; therefore it is impossible to tell whether that judge was dissenting on one issue
or both, and if on one issue, which issue.
-22-
The district court agreed, and the Eleventh Circuit affirmed on appeal. Applying
Florida’s substantive law of agency, that “‘a principal cannot be held liable if the agent is
exonerated,’” id. at 1500 (quoting Bankers Multiple Life Ins. Co. v. Farish, 464 So. 2d
530, 532 (Fla. 1985)), the court held that the “dismissal of a complaint with prejudice
satisfies the requirement that there be a final judgment on the merits[,]” and therefore the
voluntary dismissal with prejudice was a final adjudication of the borrower’s
counterclaim against the bank. Id. at 1501. 13
In Brooks v. Barbour Energy Corp., 804 F.2d 1144 (10th Cir. 1986), also relied
upon by the Harrison court, the Tenth Circuit held that the voluntary dismissal with
prejudice of claims by the plaintiffs, as part of a comprehensive settlement that resolved
the substance of the disputed claims, was a judgment on the merits, with res judicata
effect. Finally, the Harrison court cited Schwarz v. Folloder, 767 F.2d 125, 129 (5th Cir.
1985), for the proposition that a dismissal with prejudice under Rule 41(a) is an
adjudication upon the merits. The issue in that case, and in the case the Fifth Circuit
quotes for that proposition—Smoot v. Fox, 340 F. 2d 301, 303 (6th Cir. 1964)—was
whether a trial court abused its discretion by granting a plaintiff’s motion to voluntarily
dismiss his claims with prejudice, not the effect of such a dismissal on others.
13
The settlement agreement had provided that it would not impair the borrower’s
counterclaim against the bank, which had not agreed to the settlement. The court noted
that the counterclaim could have been saved had the bank consented, but without that
happening, the borrower’s mere intention to save its counterclaim against the bank did
not accomplish that purpose.
-23-
Some state courts have held that the dismissal of a claim against a defendant is an
adjudication upon the merits equal to an exoneration, so the defendant’s principal cannot
be held vicariously liable, even when there has been no settlement, release, or exchange
of consideration. In Law v. Verde Valley Medical Center, 217 Ariz. 92 (2007), the
plaintiff’s decedent suffered head injuries in a fall at the defendant medical center. The
plaintiff sued two doctors for negligently failing to diagnose the decedent’s head injuries
and the medical center for vicarious liability based on the tortious conduct of the two
doctors and for vicarious liability based on the tortious conduct of unnamed emergency
room personnel in creating the situation in which the decedent fell. Before trial, the
plaintiff voluntarily dismissed both doctors with prejudice. One was dismissed in
conjunction with a settlement; the other was dismissed “in the absence of any settlement
payment or release.” 217 Ariz. at 96 n.2. The medical center moved for summary
judgment on the vicarious liability claims that were based on the doctors’ negligence, and
the motion was granted. The rest of the case went to trial, and the medical center
prevailed before a jury.
The plaintiff appealed, arguing that the trial court erred in ruling that the dismissal
with prejudice of the claims against the doctors precluded the medical center from being
held vicariously liable for their negligence. The Supreme Court of Arizona affirmed,
holding that because “a dismissal with prejudice” is the equivalent of a “judgment on the
merits[,]” there was “no fault [on the part of the doctors] to . . . impute [to] the party
potentially vicariously liable[,]” i.e., the medical center. Id. at 96. Most of the court’s
discussion was an explanation of why Arizona’s UCATA was not relevant to the question
-24-
of a principal’s vicarious liability for the acts of its agent. The court stated that even in
the absence of a release, the dismissals with prejudice “constitute[d] adjudications of
non-liability on the merits” for the doctors. Id. (additional citation omitted). See also
Medeiros v. Middlesex Ins. Co., 48 Mass. App. Ct. 51 (1999) (holding that voluntary
dismissal with prejudice of negligent misrepresentation claim against insurance agent
precluded vicarious liability on the part of the insurance company principal); Barnes v.
McGee, 21 N.C. App. 287, 289 (1974) (holding that voluntary dismissal with prejudice of
negligence claim against employee, apparently without consideration of any sort, was a
“judgment on the merits . . . [that] precludes any action against the employer where . . .
the employer’s liability is purely derivative”). Cf. Sisk v. J.B. Hunt Transport, Inc., 81
P.3d 55 (Okla. 2003) (second dismissal of negligence claim against driver, which by rule
prevented plaintiff from suing him again, precluded claim for vicarious liability of
driver’s employer).
The issue before us is not one on which there is uniformity across the country,
however. Ms. Harris cites several cases in which state courts have held that, absent a
settlement in which consideration is paid, a voluntary dismissal with prejudice of an
employee defendant is not an adjudication upon the merits of the claim against him so as
to preclude prosecution of the same claim against the employer under respondeat
superior.
In Brosamle v. Mapco Gas Products, Inc., 427 N.W.2d 473 (Iowa 1988), the
plaintiffs sued a propane gas company and its employee for injuries they sustained in a
propane gas explosion. They alleged that the employee had negligently overfilled their
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tank and the company was liable for his negligence as his employer. When the plaintiffs
realized that the employee was “essentially judgment proof,” they dismissed their claim
against him without prejudice. 427 N.W.2d at 474. The company then sought to remove
the case to federal court on diversity grounds.
During that attempt, which ultimately was unsuccessful, the plaintiffs agreed to
voluntarily dismiss their claim against the employee with prejudice as a gesture of good
faith to show they had no interest in pursuing separate litigation against him. After
remand to state court, the plaintiffs filed a dismissal of the claim against the employee
with prejudice. The dismissal stated the plaintiffs’ intention was not to dismiss their
claims against the company-employer. After the close of plaintiffs’ case, the company
moved for a directed verdict, arguing that the dismissal with prejudice of its employee
was an adjudication upon the merits in favor of the employee that was the equivalent of
an exoneration. The court denied the motion. The jury returned a verdict in favor of the
plaintiffs.
The Iowa Supreme Court affirmed, even though its controlling court rule stated
that “‘[a]ll dismissals . . . shall operate as adjudications on the merits unless they specify
otherwise.’” Id. at 475 (quoting Iowa Rule of Civil Procedure 217). The court noted that
the employee had not been a necessary party, because under the common law of agency
the servant or the master or both could be held liable for the servant’s wrongdoing.
Therefore, suit could have been brought against the company for the employee’s
negligence without the employee being included as a party. It also noted that the
-26-
dismissal with prejudice of the employee was filed without a settlement or any
determination of the employee’s fault. The court held:
Where, as here, the employee is not a necessary party to an action against
an employer, dismissal of the employee will not be construed as an
adjudication on the merits of the employee’s fault (and, hence, the
employer’s liability) unless the dismissal expressly so provides.
Id. at 476.
The Brosamle court found persuasive the decision of the Supreme Court of
Montana in Cantrell v. Henderson, 718 P.2d 318 (Mont. 1986), in which it moved away
from its “rigid dismissal with prejudice rule.” 427 N.W.2d at 476. In Cantrell, the
plaintiffs sued a truck driver and his trucking company employer for negligence, seeking
damages for injuries sustained in an accident. There was no claim of independent
liability against the trucking company. The plaintiffs decided to dismiss their claim
against the driver without any consideration and moved the court for an order of
dismissal. The trucking company responded that it had no objection so long as the order
dismissed the claim against the driver with prejudice. Such an order was entered.
The trucking company then moved for summary judgment on the ground that the
effect of the dismissal with prejudice of its driver was to preclude it from being held
liable for the driver’s conduct based on respondeat superior. The court granted the
motion, and the plaintiffs appealed. The Montana Supreme Court reversed.
Acknowledging that there was a split of authority on the issue, it stated:
We conclude that the better rule is that dismissal of a defendant “with
prejudice” does not release other defendants who may be liable under a
theory of respondeat superior, unless the document intends to do so, or the
payment is in full compensation, or the release expressly so provides. This .
-27-
. . reflects the tactical reality of dismissals of less than all defendants in
multi-party tort litigation. It also reflects the inappropriateness in modern
practice of an interpretation which finally disposes of substantive issues
based on a technical misstep by counsel.
718 P.2d at 321.
Much more recently, in Hughes v. Doe, 273 Va. 45 (2007), the Supreme Court of
Virginia took a similar approach in deciding the effect of a dismissal with prejudice of an
employee on an employer sued based on respondeat superior. The plaintiff brought a
medical malpractice action against a medical center and its employee, who was
designated “Jane Doe” in the complaint because her identity was not known when suit
was filed. After the plaintiff learned the employee’s identity, she moved to amend her
complaint to substitute the employee for “Jane Doe.” The medical center opposed the
motion on the ground that the claim against the employee was time-barred. The court
allowed the amendment but, ruling that the amended complaint did not relate back to the
original complaint, entered an order dismissing the employee with prejudice based on
limitations. The medical center filed a motion for summary judgment, arguing that the
dismissal with prejudice of the claim against the employee precluded liability on its part.
The court granted the motion.
Over the dissent of two justices, the Virginia Supreme Court reversed. It
acknowledged that it previously had held that a dismissal with prejudice is an
“‘adjudication on the merits, and final disposition, barring the right to bring or maintain
an action on the same claim or cause[.]’” 273 Va. at 48 (quoting Reed v. Liverman, 250
Va. 97, 99–100 (1995)) (internal quotations omitted). It explained, however, that it never
-28-
had held that the dismissal of a claim against an employee with prejudice precluded the
same claim against the employer based on respondeat superior when the dismissal was
merely a matter of procedure. Such a dismissal with prejudice is not the same as a
decision on the merits, i.e., a finding that the employee was not negligent. For that
reason, the “derivative liability principle”—that the exoneration of the employee by a
finding of non-negligence exonerates the employer on the same claim—did not apply, id:
In this case, the dismissal with prejudice of [the employee] was not an
affirmative finding of non-negligence; it merely terminated [the plaintiffs’]
ability to hold [the employee] liable for any alleged negligence. To
conclude that the dismissal with prejudice in this case terminates [the
plaintiff’s] ability to pursue a claim against [the employer], in the absence
of any finding that [the employee] was not negligent, goes well beyond our
established jurisprudence.
Id. at 49 (footnote omitted). See also Hedquist v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 272 Ga. 209, 210 (2000) (holding that dismissal with prejudice of employee is not
an adjudication upon the merits and therefore does not preclude respondeat superior
liability finding against employer); Indemnity Ins. v. City of Garland, 258 S.W. 3d 262,
272 (Tex. App. 2008) (under common law, dismissal with prejudice of employee, without
settlement, was not a prior adjudication against the employee so as to bar claims against
employer under collateral estoppel). 14
14
Under New York statutory law, the release of a tort claim against an agent does
not release the principal for vicarious liability, Riviella v. Waldron, 47 N.Y.2d 297, 307
(1979); and in Pace v. Hazel Towers, Inc., 584 N.Y.S.2d 22 (N.Y. App. Div. 1992), the
New York Appellate Division, First Department held that because by statute there is no
preclusive effect when the agent is released, there should be no preclusive effect when
the agent is dismissed with prejudice.
-29-
In a similar vein, some courts have held, consistent with the observations of the
Supreme Court in Semtek, that a dismissal with prejudice of a claim against an employee
entered on a procedural ground, such as limitations, is not an adjudication upon the merits
against the employee that bars the employer from being adjudicated vicariously liable
even when the dismissal is involuntary, not voluntary. For example, in Cohen v. Alliant
Enterprises, Inc., 60 S.W. 3d 536 (Ky. 2001), the plaintiff sued a doctor and an
emergency care center that employed him for medical negligence. The claim against the
center was based solely on vicarious liability. The plaintiff later realized that the doctor
he had sued was not the one who had treated him; he had been treated by another doctor
at the same center. He filed an amended complaint, “dismissing [the doctor] and leaving
[the center] as the only defendant.” Id. at 537. He could not add the doctor who actually
treated him as a defendant because limitations had run on that claim. The center moved
for summary judgment on the ground that because the claim against the treating doctor
was time-barred, the center could not be held liable vicariously for the treating doctor’s
negligence. The court granted the motion.
The case reached the Kentucky Supreme Court, which reversed. It drew a contrast
between the case before it and Copeland v. Humana of Kentucky, Inc., 769 S.W. 2d 67(Ky. Ct. App. 1989). In Copeland, a child suffered brain damage from the improper
administration of anesthesia during eye surgery. Through his parents, he entered into a
settlement agreement or covenant not to sue with the anesthesiologist, receiving
compensation and agreeing not to sue the anesthesiologist. He then sued the hospital,
based on respondeat superior and also for independent negligence. The court granted
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partial summary judgment in favor of the hospital on the vicarious liability claim. In
affirming, the Kentucky Court of Appeals stated: “Having agreed not to sue the
servant/agent, and made recovery by settlement therefrom, the [plaintiff] may not now
seek additional recovery from the master/principal based upon the same acts of alleged
negligence, whether the document is called a ‘release’ or ‘covenant not to sue.’” Id. at
69.
The Cohen court explained the difference between the case before it and
Copeland:
The case at bar is clearly distinguishable from Copeland, in that there has
been no settlement of any sort here. The Copelands were able to recover for
the negligence of the anesthesiologist/agent via the “release” or “covenant
not to sue” and therefore, the vicarious liability of the hospital for the
negligent actions of its agent could not serve as a second recovery for the
same offending conduct. The fact that Mr. Cohen cannot recover from the
agent here does not negate the fact that liability may exist, and that it can
be imputed to the principal. It is the negligence of the servant that is
imputed to the master, not the liability. “The test as to the liability of the
master is whether the servant was guilty of negligence. . . .”
60 S.W. 3d. at 538 (quoting Horne v. Hall, 246 S.W. 2d 441, 443 (Ky. 1951)) (emphasis
added).
Having considered the spectrum of relevant cases from around the country, we are
persuaded that the better view is that the dismissal with prejudice of a tort claim against
an agent does not necessarily have the effect of rendering the vicarious liability claim
against the agent’s principal non-viable. Specifically, when the dismissal with prejudice
of the agent is not given in exchange for consideration and the merits of the tort claim
against the agent have not actually been adjudicated before the dismissal, neither sound
-31-
legal principles nor the policy underlying respondeat superior supports the conclusion
that the dismissal with prejudice eliminates any vicarious liability on the part of the
principal.
As we explained in Condon, in an agency relationship, the doctrine of respondeat
superior operates to impose liability upon the principal for the agent’s tortious conduct
committed within the scope of the agency; therefore, a finding that the agent committed a
tort is a necessary predicate for the principal to be held liable. To obtain a judgment
against the principal, however, the plaintiff need not sue the agent and the agent need not
be held liable individually. It is sufficient that the plaintiff sue the principal and put on
evidence proving the agent’s tortious conduct. If the fact-finder determines that the agent
committed a tort and did so while acting within the scope of the agency, the principal will
be liable.
Because the liability of the principal is wholly derivative, that is, it is a function of
status and stems entirely from the tortious conduct of the agent, not from any tortious
conduct by the principal, there only can be one recovery, regardless of whether both are
sued or only the principal is sued. Cf. Chilcote v. Von Der Ahe Van Lines, supra. And,
as in Condon, the plaintiff’s release of her tort claim against the agent necessarily
precludes the imposition of liability against the principal. A plaintiff who executes a
release acts “affirmatively and purposefully to extinguish the underlying claim.”
Mummert v. Alizadeh, 435 Md. 207, 221-22 (2013) (emphasis added). Once the
plaintiff’s claim against the agent is extinguished, there no longer is any tortious conduct
by the agent that the principal is responsible for.
-32-
Releases are bilateral contracts supported by consideration flowing between the
parties. Kaye v. Wilson-Gaskins, 227 Md. App. 660, 679 (2016) (“‘Releases are
contractual, and they are therefore governed by ordinary contract principles.’”) (quoting
Chi. Title Ins. Co. v. Lumbermen’s Mut. Cas. Co., 120 Md. App. 538, 548 (1998)). It is
usual that the release by a plaintiff of her claim against a defendant, which is a thing of
value, will be given in exchange for a thing of value, ordinarily money, given by that
defendant. When a principal’s potential liability in tort derives solely from the tortious
conduct of his agent, as is the case when the doctrine of respondeat superior applies, it
makes sense to treat the release of the agent as if it were an adjudication upon the merits
in his favor and therefore in favor of the principal. Otherwise, the plaintiff could pursue
15
the principal and potentially recover twice for a single wrong.
In the absence of an actual exoneration of the agent (such as in Taha), a release of
the plaintiff’s claim against the agent (such as in Condon), or a settlement of some sort in
which the agent has compensated the plaintiff in consideration for being dismissed with
prejudice (which ordinarily would be accompanied by a release), there is no well-founded
15
It is telling that in many of the cases holding that the dismissal with prejudice of
an agent defendant will preclude a finding of vicarious liability against the remaining
principal defendant the plaintiff received value in consideration for the dismissal. Double
recovery is not a concern when a plaintiff dismisses with prejudice a claim against a
defendant (whether or not an agent) without receiving any consideration for the
dismissal. See e.g. Citibank, supra (dismissal of agent was in consideration for payment
to plaintiff of $1 million); Brooks v Barbour Energy Corp., supra (dismissal of agent was
in consideration for comprehensive settlement). Even in Harrison, on which Women
First places most reliance, there was some value exchanged, in that the dismissal with
prejudice of the plaintiff’s co-employee was given in consideration for his dismissal of
his counterclaim against her.
-33-
reason to treat the dismissal of the agent with prejudice as an adjudication upon the
merits of the claim against him. The risk of double recovery is not a concern because the
plaintiff has not received anything of value. The dismissal with prejudice is simply the
procedural mechanism to permanently remove the agent as a defendant in the case when
it was not necessary to include him as a defendant in the case to begin with. It is not “an
affirmative finding of non-negligence[,]” Hughes, 273 Va. at 49, as there is no
substantive determination underlying it. And the purpose behind the doctrine of
respondeat superior—to ensure that upon a showing of agency there will be two sources
of recovery instead of one—certainly would be defeated by treating the procedural
dismissal with prejudice as if it were a substantive finding of no negligence, thus
reducing the plaintiff’s sources of recovery from two to none.
To be sure, in Maryland, the dismissal with prejudice of any defendant, including
an agent, bars the plaintiff from bringing a second action against that defendant on the
same claim, Roane v. Washington County Hospital, 137 Md. App. 582, 590 (2001), at
least in the same court. Cf. Semtek, supra. In a case where there is but one defendant, the
dismissal with prejudice of the plaintiff’s claim may have the same res judicata effect as
if there had been a final adjudication upon the merits in favor of the defendant. See, e.g.,
Claibourne v. Willis, 347 Md. 684, 692 (1997). Our concern is with the effect of a
dismissal with prejudice of one defendant, an agent, on a second defendant, his principal,
however. In that context, when the alleged wrongful conduct of the agent is still open for
determination by the fact-finder in the action against the principal, it is immaterial that
-34-
the plaintiff is barred from bringing a second action against the agent. (Indeed, if it were
material, the plaintiff could not recover from the principal without suing the agent.)
The legal effect of a dismissal with prejudice of an agent on his principal should
be guided by whether the dismissal is a procedural device used to drop the agent as a
defendant or has a substantive basis, such as an adverse decision on the merits, the
release of the plaintiff’s claim, or an exchange of value. In this case, the dismissal with
prejudice simply removed Dr. McMillan from the case, without more. Had the parties
intended that her removal would preclude Ms. Harris from pursuing her claim against
Women First, they could have stated so expressly. (It is obvious that that would not have
happened, however.) Otherwise, the legal effect of Ms. Harris’s voluntary dismissal with
prejudice of her claim against Dr. McMillan was not to preclude her from continuing to
pursue her respondeat superior claim against Women First. That claim remained viable.
Accordingly, the trial court did not err in denying Women First’s motion for judgment or
motion for JNOV.
II.
Women First’s second contention concerns the trial court’s exercise of revisory
power to convert what it termed Ms. Harris’s “motion to dismiss” her claim against Dr.
McMillan from a dismissal “with prejudice” to a dismissal “without prejudice.” It argues
that Ms. Harris never moved to dismiss her claim against Dr. McMillan; rather, she
presented the court with a stipulation of dismissal that was approved by the parties. It
further asserts that any revisory power the court had was governed by Rule 2-535(b) and
that Ms. Harris did not file a written motion, which must be done for the court to exercise
-35-
its revisory power under that rule. Finally, it maintains that even if Ms. Harris had filed
such a motion, she was not entitled to relief under that rule.
Ms. Harris responds that the court properly exercised its discretion to revise her
motion to dismiss to one without prejudice under Rule 2-602(a) because there was no
final judgment at the time.
The proceedings central to this issue, which we have described above, are not a
model of clarity. Counsel for Ms. Harris did not file a stipulation of dismissal signed by
Ms. Harris and by Dr. McMillan. See Md. Rule 2-506(a). He presented an oral
stipulation, with which counsel for Dr. McMillan agreed; and did not expressly request
leave of court to voluntarily dismiss the claim. See Rule 2-506(c). From the wording of
the docket entries, however, it seems that the court treated the oral stipulation as a motion
for leave to dismiss the claim against Dr. McMillan with prejudice, which it “[g]ranted.”
After Women First moved for judgment at the close of Ms. Harris’s case and the
court called upon the parties to file memoranda, Ms. Harris’s counsel asked as an
alternative form of relief (if the court were inclined to grant the motion for judgment) that
the dismissal with prejudice already “[g]ranted” by the court be revised to a dismissal
without prejudice. In ruling on the motion for judgment, the court expressly determined
that the dismissal with prejudice of the claim against Dr. McMillan did not insulate
Women First from liability. It also granted the alternative relief, however. The court did
not prepare a written order of dismissal, with or without prejudice.
The contention Women First advances lacks merit for several reasons. First, we
have affirmed the court’s primary ruling, that Ms. Harris’s dismissal with prejudice of her
-36-
claim against Dr. McMillan did not compel the entry of judgment in favor of Women
First as a matter of law. So, whether the court abused its discretion by revising the
“motion to dismiss” from one with prejudice to without prejudice is of no consequence.
Without any revision by the court, the ruling on the motion for judgment was correct and
the case against Women First properly proceeded to the jury for decision.
Second, Rule 2-535(b) is completely irrelevant. It governs the court’s power, in a
civil case, to revise a final judgment more than 30 days after the judgment was entered.
In a civil case against multiple parties, there can be no final judgment until the claims by
and against all parties have been adjudicated. Md. Rule 2-602(a)(1). 16 When the revision
that Women First complains about was made, the claim against it was not yet
adjudicated, so there was no final judgment, let alone an enrolled final judgment. At
most, the court was revising its interlocutory oral ruling approving the dismissal with
prejudice of the claim against Dr. McMillan only, which means it was acting under Rule
16
As pertinent here, Rule 2-602(a) states:
[A]n order or other form of decision, however designated . . . . that
adjudicates the rights and liabilities of fewer than all the parties to the
action: (1) is not a final judgment; (2) does not terminate the action as to
any of the claims or any of the parties; and (3) is subject to revision at any
time before the entry of a judgment that adjudicates all of the claims by and
against all of the parties.
-37-
2-602(a)(3), and therefore had full revisory power. See also Baltimore Police Dept. v.
Cherkes, 140 Md. App. 282, 301 (2001). 17
We are left with a finality issue to address, however, in that there is no separate
document pertaining to the claim against Dr. McMillan, as required by Rule 2-601(a).
Indeed, there is no document at all. In Hiob v. Progressive American Ins. Co., 440 Md.
466, 487 (2014), where the plaintiff and one defendant signed a voluntary stipulation of
dismissal of the claim against that defendant and filed it in court, the Court of Appeals
held that the separate document requirement of Rule 2-601(a) was not satisfied. The
Court explained that “a voluntary dismissal by stipulation, which is not presented to the
court for approval is not an order of court and therefore is not a judgment.” Id. at 488.
Thus, if counsel for Ms. Harris and Dr. McMillan had signed and filed a voluntary
stipulation of dismissal of the claim against Dr. McMillan (with or without prejudice), the
separate document requirement would not have been satisfied.
We think it plain that the trial court granted leave for Ms. Harris to voluntarily
dismiss her claim against Dr. McMillan with prejudice and then, as a fall back to its
ruling on the motion for judgment, without prejudice. Docket entries were made of these
rulings. Nevertheless, there never has been a document signed either by the court or by
the clerk of court memorializing these rulings and therefore constituting a final judgment
under Rule 2-601(a). As the Court of Appeals recently explained, however, the separate
17
Women First relies upon Claibourne v. Willis, 347 Md. 684 (1997), to support
its argument that Rule 2-535(b) applied. That case is inapposite because there was a final
judgment.
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document requirement may be waived “in order to preserve an appeal, rather than
eliminate it as untimely.” URS Corp. v. Fort Myer Constr. Corp., Slip. Op. No. 31,
September Term 2016, at 19 (filed March 24, 2017) (emphasis in original). In particular,
when there is a docket entry of the court’s ruling; the court’s failure to memorialize its
ruling in a separate document was inadvertent; the parties have not objected to the fact
that a separate document was not prepared; and remanding the case merely for the court
to prepare and enter the document would accomplish nothing but delay, waiver is
appropriate. In the case at bar, the waiver doctrine applies, and there was a final
judgment when the appeal was noted by Women First.
III.
Finally, Women First contends the trial court abused its discretion by allowing Ms.
Harris to call Dr. Karr as a rebuttal witness. We disagree.
In Ms. Harris’s case-in-chief, Dr. Luciani (her OB-GYN expert) opined that Dr.
McMillan breached the standard of care by failing to adequately protect the left ureter
from damage during the hysterectomy. He explained that in removing the uterus the
physician cauterizes and severs the left uterine artery, which crosses over the left ureter.
To do so in this case, Dr. McMillan used a “harmonic scalpel,” which is a surgical
instrument that coagulates blood and also cuts tissue by means of jaw-like appendages
and friction-generated heat. The harmonic scalpel is capable of burning tissue within a 3
millimeter radius. Dr. Luciani opined that Dr. McMillan failed to properly locate Ms.
Harris’s left ureter and use appropriate techniques to move it a safe distance from where
she was applying the harmonic scalpel to sever the left uterine artery. As a consequence,
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she caught the left ureter in the jaws of the harmonic scalpel, or within its burn radius,
damaging it at the level where the left uterine artery crossed it.
Dr. Aron, Ms. Harris’s urology expert, testified in greater detail about the cause of
the injury to Ms. Harris’s left ureter. He reviewed the pyelogram Dr. Karr performed and
read the images as showing an “obstruction” and leak in the left ureter “at the level of the
uterine artery.” He opined that the obstruction and leak were created when Dr. McMillan
“clamped” the left ureter “in the tip of the harmonic [scalpel]” while severing the left
uterine artery, both “burn[ing]” and “cut[ting]” the left ureter.
These expert witnesses testified on December 8 and 9, 2015, respectively. On the
night of December 9, 2015, counsel for Women First took the de bene esse deposition of
Dr. Redwood, its own urology expert, for use at trial.
On December 10, 2015, Women First called Dr. Dickman, its OB-GYN expert,
who opined that Ms. Harris sustained a delayed-onset injury caused by a disruption of the
blood supply to the left ureter during the hysterectomy, which would have been
undetectable at the time of surgery.
Women First then called Dr. Johnson, its urogynecology expert. Before Dr.
Johnson could testify regarding the pyelogram performed by Dr. Karr, and before
Women First played Dr. Redwood’s de bene esse deposition, Ms. Harris’s counsel
objected to their testimony. He argued that they were about to opine that the injury to
Ms. Harris’s left ureter was in fact located in a lower area on the ureter and that that
location suggested that Dr. Karr caused the injury in the course of performing the
pyelogram, which was an entirely different opinion than the one they had expressed in
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their pre-trial depositions. (Their prior opinion had been in accordance with Dr.
Dickman’s opinion.) He complained that Ms. Harris had not been given any prior notice
of this change in the defense experts’ opinion. 18
Ms. Harris’s counsel moved the court in limine to restrict Drs. Johnson and
Redwood to giving the opinion they originally expressed in pre-trial depositions and to
prohibit them from opining that Dr. Karr had caused the injury to Ms. Harris. He
conceded that he did not provide the pyelogram images to defense counsel until after Drs.
Johnson and Redwood had given their pre-trial depositions and that they were entitled to
change their opinions based on the new material. He maintained, however, that defense
counsel was obligated to notify him in the event of such a change, which he did not do.
He further directed the court’s attention to a letter he had sent to defense counsel on
November 16, 2015, asking to be notified if and when Dr. Redwood or Dr. Johnson
changed their opinions in response to the pyelogram images. Defense counsel did not
respond to that letter.
Counsel for Women First countered that the objection to Dr. Redwood’s testimony
was waived because it was not raised when his de bene esse deposition was taken on
December 9, 2015, and disputed that Dr. Johnson’s testimony had “chang[ed][.]”
The court denied the motion in limine but permitted Ms. Harris’s counsel to cross-
examine Dr. Johnson on the issue, which he later did. Drs. Johnson and Redwood each
18
Apparently, counsel for Ms. Harris learned of this new opinion for the first time
during Dr. Redwood’s de bene esse deposition.
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testified that the pyelogram did not show an injury to the left ureter where the left uterine
artery crossed it. Rather, it showed an intact left ureter all the way to “the entry point of
the ureter into the bladder[,]” which is “2 or 3 centimeters” below the point where the
uterine artery crosses it and “away from where Dr. McMillan was working” with the
harmonic scalpel. Dr. Redwood opined that the leak of iodine contrast from Ms. Harris’s
left ureter into her abdomen, captured in images from the pyelogram, was an injury
“created by [Dr. Karr] during [the pyelogram] procedure[,]” specifically, by Dr. Karr’s
inserting a needle and catheter in the left ureter.
Meanwhile, after Dr. Johnson testified but before the defense rested its case, Ms.
Harris sought to call Dr. Karr as a fact and expert rebuttal witness to testify that Drs.
Johnson and Redwood were misinterpreting the pyelogram. Counsel for Women First
objected, arguing that Dr. Karr’s testimony would not be true rebuttal, as Ms. Harris’s
counsel had had ample reason to anticipate that Drs. Johnson and Redwood would
disagree with Dr. Aron’s interpretation of the pyelogram, and it was Ms. Harris’s
counsel’s fault that the pyelogram images were not provided farther in advance. Counsel
for Women First also objected on the ground that Ms. Harris had not designated Dr. Karr
as an expert witness.
The court granted Ms. Harris’s request, relying in part on our decision in Riffey v.
Tonder, 36 Md. App. 633 (1977), and in part on the November 16, 2015 letter between
opposing counsel:
So, in this regard, if I’m looking at this case of Riffey, which is eerily on
point factually as to the facts that – not the facts that we’re dealing with
medically, but the type of case, [in Riffey] the plaintiff’s theory, the
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defendants have their own theory, and the plaintiff endeavored to call a
rebuttal witness to counter what the defendants’ witnesses had testified to at
trial, the court didn’t allow it, and it was determined that it was proper
rebuttal evidence.
And, in this case, our case, I believe the same thing to be the case.
[Ms. Harris] ha[s] put [Women First] on notice of this study, sent them the
study, went into detail of telling them what Dr. Aron’s opinion would be
based on the CD with the antegrade pyelogram and nephrostomy study
done by Dr. Karr, and also offered him for further deposition should the
need arise, and expected that they would be provided with the same
information, whether they had said that last part or not [in the November
16, 2015 letter,] [the study] had been provided.
The testimony by the Defense is counter to the moving party who has the
burden of proof, and I believe looking at the case law, as well as the statute,
which deals with rebuttal evidence, the plaintiff is entitled to put on rebuttal
evidence to contradict that which the defendants’ experts have now testified
to.
Dr. Karr testified that he did not cause any injury to Ms. Harris’s left ureter during
the pyelogram procedure for two reasons. First, before he inserted the needle and
catheter, he saw the leakage of contrast iodine outside the walls of the left ureter, at a
point 3 to 5 centimeters above the point where that ureter entered the bladder. Second,
the initial act of injecting the contrast iodine into the kidney could not have caused a
leakage at the point observed in the pyelogram in an otherwise intact ureter; one would
“typically see a leak” in the area “around the needle that . . . we’ve put into the kidney”
when the leak is caused by “inject[ing] a lot of pressure[.]” He demonstrated that the
pyelogram images did not depict an intact ureter past the point of the leak and obstruction
and clarified that Drs. Redwood and Johnson had misinterpreted the pyelogram images
by mistaking “shadow[s]” captured by the images and the catheter needle “extending”
outside and beyond the ureter for the ureter itself. He stated that his written report of the
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pyelogram procedure clearly identified the locus of the leakage and obstruction and could
not be properly read to mean the left ureter was intact until “just before the bladder.”
Women First argues that Dr. Karr’s testimony was not proper rebuttal evidence
because it “did not rebut any new matter raised by [Women First] in its case-in-chief[.]”
(Emphasis in Appellant’s Brief.) Specifically, Drs. Redwood and Johnson “interpreted
the same pyelogram [study] and opined regarding the same issues of location and
causation” of the injury to Ms. Harris’s left ureter as Dr. Aron and therefore did not
present any “new matter.” 19 In addition, Ms. Harris did not designate Dr. Karr as an
expert witness before trial.
Ms. Harris counters that the court properly permitted Dr. Karr to testify as a
rebuttal witness, because in their testimony Drs. Redwood and Johnson expressed two
entirely “new” opinions that were not disclosed before trial and therefore could not be
addressed in her case-in-chief: (1) that her left ureter “was completely intact from the
kidney all the way down to the bladder”; and (2) that the injury to her left ureter was
caused by Dr. Karr. Ms. Harris does not address whether the court should have allowed
Dr. Karr to testify as an undesignated expert witness.
19
In arguing this point, Women First seems to be maintaining that the fact that
Drs. Redwood and Johnson relied on nine images from the pyelogram in their trial
testimony whereas Dr. Aron only relied upon three images did not make Drs. Redwood’s
and Johnson’s testimony “new matter”; and that Dr. Karr’s rebuttal testimony
“effectively gutted” Women First’s cross-examination of Dr. Aron, which exposed his
“fail[ure] to show the complete pyelogram study to the jury.” These arguments are
irrelevant, as Ms. Harris has never taken the position that Drs. Redwood and Johnson
testified to new matters based on the number of slides they viewed from the pyelogram.
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It is within the discretion of the trial court to admit rebuttal testimony. Riffey v.
Tonder, 36 Md. App. 633, 645–46 (1977) (“[W]hether evidence is properly rebuttal is a
matter for the exercise of judicial discretion.”). We “will not reverse for error in this
determination unless the ruling of the trial court was both ‘manifestly wrong’ and
‘substantially injurious.’” Id. at 646 (quoting Hepple v. State, 31 Md. App. 525, 532
(1976)).
We see no abuse of discretion in the court’s decision to allow Dr. Karr to testify as
a rebuttal witness. Rebuttal evidence is “any competent evidence which explains, is a
direct reply to[,] or a contradiction of material evidence introduced by an accused in a
criminal case or by a party in a civil action.” Id. at 645 (additional citations omitted).
“‘Although rebuttal evidence is a matter of right, for evidence to be admissible as “true”
rebuttal . . . it must respond to new matter.’” Schwartz v. Johnson, 206 Md. App. 458,
503–04 (2012) (quoting Joseph F. Murphy, Jr., Maryland Evidence Handbook 104
(Matthew Bender, 4th ed., 2010). The opinions of Drs. Redwood and Johnson expressed
at trial included previously undisclosed and unanticipated “new matter” that Dr. Karr’s
testimony “direct[ly] repl[ied] to” and “contradict[ed.]”
Women First does not dispute that in their pretrial depositions Drs. Redwood and
Johnson agreed with Dr. Aron about the location of the injury to Ms. Harris’s left ureter;
and Women First’s only theory of defense before trial was that the defect to Ms. Harris’s
left ureter was a delayed-onset injury caused by a disruption of the blood supply to the
ureter during the hysterectomy. Nor does Women First dispute that it did not inform Ms.
Harris’s counsel that Drs. Redwood’s and Johnson’s opinions had changed after their
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pretrial depositions, even though defense counsel had received the November 16, 2015
letter from Ms. Harris’s counsel requesting any such information. Thus, the opinions
Drs. Redwood and Johnson expressed at trial about the pyelogram images showing that
Ms. Harris’s left ureter was intact (uninjured) past the point identified by Dr. Aron until
its entrance into the bladder and the leakage of iodine contrast from the left ureter were a
surprise to Ms. Harris. They supported undisclosed novel defense theories that Ms. Harris
could not have anticipated before trial.
Dr. Karr’s rebuttal testimony explained that Drs. Redwood and Johnson had
misidentified other structures on the pyelogram images as Harris’s left ureter, and that the
left ureter was not intact to its entry point to the bladder. He also explained that he
observed the leakage defect in Harris’s left ureter before inserting a catheter and thus
could not have caused the defect in that manner. These opinions exclusively and directly
addressed the new matters first raised by Drs. Redwood and Johnson in their trial
testimony; they did not echo Dr. Aron’s opinion in Ms. Harris’s case-in-chief.
Accordingly, the court did not abuse its discretion by permitting Dr. Karr to testify as a
rebuttal witness.
Moreover, it was within the court’s discretion to permit Dr. Karr to testify as a
rebuttal witness even though Ms. Harris did not designate him as an expert prior to trial.
Rodriguez v. Clarke, 400 Md. 39, 56 (2007) (“Trial judges are vested with great
discretion in applying sanctions for discovery failures.”) (additional citations omitted). In
this case, it fashioned an appropriate solution in response to what was essentially a
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discovery dispute over Women First’s failure to disclose the altered opinions of its expert
witnesses.
JUDGMENT OF THE CIRCUIT
COURT FOR MONTGOMERY
COUNTY AFFIRMED. COSTS TO
BE PAID BY THE APPELLANT.
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