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Young v. Swiney

United States District Court, D. Maryland

May 30, 2014

DONN SWINEY, et al., Defendants

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[Copyrighted Material Omitted]

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For Jamie Rose Young, Individually and As Personal Representative of the Estate of Joseph Russell Young, and as Parent and Legal Guardian of Chelsea Lynn Young and Jenna Alexandra Young, minors, Plaintiff: Daniel J Earnshaw, LEAD ATTORNEY, Law Offices of Daniel J Earnshaw, LLC, Edgewood, MD.

For Industrial Transport Services, LLC, Defendant: James S Liskow, Jeffrey R DeCaro, LEAD ATTORNEYS, DeCaro Doran Siciliano Gallagher and DeBlasis LLP, Bowie, MD.

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Ellen Lipton Hollander, United States District Judge.

This suit arises from an automobile accident that occurred on June 16, 2010, involving, among others, Joseph Young and Donn Swiney. Mr. Young sustained multiple injuries in the accident and, over two years later, on September 6, 2012, he committed suicide, at the age of 45. Thereafter, Mr. Young's widow, plaintiff Jamie Rose Young, filed suit, " individually and in her capacity as Personal Representative of the Estate of [Mr. Young], and as parent and legal guardian of Chelsea Lynn Young and Jenna Alexandra Young, minors," against Swiney; Swiney's employer, Industrial Transport Services, LLC (" Industrial Transport" ); and Warehouse Services, Inc. (" Warehouse" ). See ECF 2 (Complaint).[1] However, in a Notice of Voluntary Dismissal filed January 10, 2013 (ECF 12), plaintiff dismissed her claims against Swiney and Warehouse. See infra. Thus, only Industrial Transport remains as a defendant.

Plaintiff subsequently filed a First Amended Complaint (ECF 30, the " FAC" ) and, like the original Complaint, it contains five counts: a survival action (Count I) and four wrongful death claims (Counts II through V). See id. [2] Count I, the survival action, is brought by plaintiff in her capacity " as personal representative of the Estate of Joseph Russell Young[.]" FAC at 3. Based on Mr. Swiney's alleged negligence, Count I seeks judgment in the amount of $3,000,000.00 for, among other things, Mr. Young's medical expenses; his physical and emotional pain and suffering; his loss of income from the date of the accident until September 6, 2012; funeral expenses; interest; and costs of suit. Id. at 2-3. The remaining counts, Counts II through V, all raise wrongful death claims, and seek $2,000,000 in damages. Count II, originally brought against Industrial Transport and Warehouse, and Count III, brought against Mr. Swiney, both allege that Ms. Young " has suffered pecuniary loss, mental anguish, emotional pain and suffering, and the loss of the society, companionship, comfort, protection, marital care, attention, advice, counsel, and love of her husband." In Count IV, plaintiff seeks, on behalf of her daughter Chelsea Young, damages from all three defendants, based on Chelsea's " pecuniary loss, mental anguish, emotional pain and suffering and other damages" due to the death of her father. Likewise, in Count V, plaintiff seeks, on behalf of her other daughter, Jenna Young, damages from all three defendants, due to Jenna's " pecuniary loss,

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mental anguish, emotional pain and suffering and other damages."

Notably, fault for the underlying motor vehicle accident is not at issue. See, e.g., ECF 32 (Industrial Transport's Motion for Partial Summary Judgment) at 1 (" Fault for the accident is conceded" ). Specifically, in the Notice of Voluntary Dismissal (ECF 12), the parties advised that, " [i]n exchange for the voluntary dismissal" of all claims against Mr. Swiney and Warehouse, " counsel for Industrial Transport Services, LLC has agreed to stipulate that Mr. Swiney was an employee of Industrial Transport Services, LLC at the time of the accident, and that Mr. Swiney was responsible for causing the collision that occurred on the night of June 16, 2010 with the vehicle that was driven by Plaintiff's decedent, Joseph R. Young." Id.; see ECF 13 (Order approving dismissal). Moreover, in its Reply, defendant does not challenge plaintiff's characterization of the accident or the nature and extent of Mr. Young's physical injuries. Rather, defendant maintains that " [s]uch 'evidence' . . . is not sufficient to support the wrongful death counts set forth in Counts II, III, IV and V of [the FAC]." Reply at 1.[3]

Now pending is Industrial Transport's Motion for Partial Summary Judgment (ECF 32), to which it has appended a supporting memorandum (ECF 32-1, " Mem." ) (collectively, the " Motion" ). Plaintiff has filed a " Response to Motion for Partial Summary Judgment" (ECF 36), as well as a supporting memorandum (ECF 37, " Opposition" or " Opp." ). Defendant has replied (ECF 41, " Reply" ). Both sides have also submitted numerous exhibits.[4]

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Industrial Transport raises three arguments in its Motion. First, defendant seeks summary judgment as to the four wrongful death claims (Counts II through V), asserting that plaintiff's evidence is insufficient as a matter of law to establish that Mr. Young's suicide on September 6, 2012, was proximately caused by the motor vehicle accident of June 16, 2010. ECF 32 at 1-2. Second, defendant maintains that it is " entitled to judgment as a matter of law as to any claimed economic loss occurring after September 6, 2012," on the ground that Mr. ..Young's suicide constitutes " a superseding and/or intervening cause" of his death that bars recovery for subsequent economic losses. Id. at 2. Defendant also raises a third challenge, arguing that no evidence exists indicating that the " decedent suffered pre-impact fright prior to the occurrence." Id. In other words, defendant seeks summary judgment as to Counts II through V in their entirety; regarding Count I, the survival action, defendant seeks to limit plaintiff's potential recovery, but does not move for summary judgment as to that count in its entirety.

With respect to defendant's third argument, plaintiff " consents to the entry of summary judgment [in favor of Industrial Transport] on the issue of whether the decedent suffered pre-impact fright prior to the occurrence." ECF 36 at 2; see also, e.g., Ferdinand-Davenport v. Children's Guild, 742 F.Supp.2d 772, 777 (D. Md. 2010) (" By her failure to respond to [defendant's] argument" in dispositive motion, " the plaintiff abandons [her] claim." ); Mentch v. E. Sav. Bank, FSB, 949 F.Supp. 1236, 1247 (D. Md. 1997) (plaintiff's failure to address in opposition brief an argument raised in defendant's opening brief constitutes abandonment of claim). Accordingly, summary judgment will be entered in Industrial Transport's favor as to the issue of pre-impact fright.

No hearing is necessary to resolve the Motion. See Local Rule 105.6; see also note 10, infra. For the reasons that follow, the Motion will be granted in part and denied in part.

I. Background[5]

On June 16, 2010, Mr. Young sustained serious injuries in a motor vehicle accident that occurred in Cecil County, Maryland. See Opp. Exh. J (Singerly Fire Company report) at 2. At the time of the accident, Mr. Young was 43 years of age, worked as a carpenter and a millwright, was married, and had two young daughters. See Psychovocational Evaluation of Mr. Young, dated May 10, 2012 (" Anderson Evaluation" ) at 1. Although defendant concedes that its employee was at fault, see ECF 32 at 1; Reply at 2, and does not dispute " that Mr. Young suffered certain physical injuries from the accident," Reply at 2, I will recount facts surrounding the accident and Mr. Young's resulting injuries, because

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the accident and the injuries are relevant to the claims.

The accident occurred in Elkton, Maryland. See Opp. Exh. J at 2. While Mr. Young was stopped in his vehicle, a " full size pick up truck," Opp. Exh. J at 3, he was struck from behind by an eighteen-wheel tractor trailer truck. Deposition of Officer Michael Lewis, Sept. 19, 2013 (" Lewis Dep." ) at 10; Opp. Exh. K (Cecil County EMS report) at 3. According to Bruce Kelly, another accident victim, the tractor trailer truck was traveling at a high rate of speed, " like he was going down I-95 or something." Deposition of Bruce Kelly, Sept. 19, 2013, at 8; see Lewis Dep. at 10 (tractor trailer struck Mr. Young's vehicle at a " fairly high rate of speed" ). Upon being struck from the rear by the tractor trailer truck, Mr. Young's truck " slammed into" the vehicle in front of his. Opp. Exh. K at 3.

Following the accident, Mr. Young was transported to Christiana Hospital. Opp. Exh. J at 3. A report of the Singerly Fire Company, which responded to the scene, states, id. :

This unit notified dispatch of a 4 vehicle [collision] involving an 18 wheeler and 3 pick-up trucks with 4 possible patients. Shortly after [Mr. Young] was found to be stuck in his vehicle and not able to exit via normal egress due to the damage, injuries and position of the vehicles. This patient was the driver in the first vehicle struck. Patient's vehicle was a 4 door [D]odge full size pick up truck. Striking vehicle struck this vehicle in the rear doing substantial damage to the bed of the truck before continuing to strike the vehicle on the driver's side doing damage there and pushing the vehicle to the right. This vehicle came to rest partially resting on the 18 wheeler's saddle tank. This vehicle was also leaking fuel. Upon gaining access to the patient via passenger side doors patient was found alert and oriented and complaining of neck pain, a laceration to the back of his head and pain to his left forearm. At this time patient was placed in a c-spine colar [sic]. Patient stated that the last thing he remembers was being stopped in traffic and looking at [a] 7-11, he then doesn't remember any of the accident just waking up and the accident being over. Due to patient['s] neck pain, [loss of consciousness] and [the] position of [the] vehicles the decision was made to remove the roof of the vehicle to make for a safe extrication. Crews removed the roof completely and a backboard was placed behind the patient between him and the back of the seat. Patient was then slid up the board by the crews, laid flat and secured. Patient was then passed down to the stretcher and taken to the ambulance. At this time [C]ecil [C]ounty paramedic 3 assumed patient care.

The Singerly Fire Company's report indicates that Mr. Young suffered from " Laceration-Head, Pain-Head, Pain-Arm(s)," with a " chief complaint" of " pain to the back of the head, Left forearm and upper neck." Id. at 1-2. Cecil County paramedics documented Mr. Young's loss of consciousness, " pain to back of head with controlled bleeding" ; " pain to left forearm, which had deformity" ; " some pain above right breast" ; " some pain to lower left tib fib area" ; and " some nausea." Opp. Exh K. at 2-4.

Christiana Hospital records dating from June 16 and 17, 2010, reflect a deformity in Mr. Young's left elbow area, dried blood on the back of his head, pain in the right chest and left wrist areas, and the earlier loss of consciousness, while noting that the patient was " awake, but confused." Opp. Exh. L. The records also note, inter alia, an " Admitting Diagnosis" of " Concussion."

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See id. Additional Christiana Hospital records, dating from June 21, 2010, reference a " scabbed wound" on the back of Mr. Young's head as well as pain in the head, neck, back, and left arm, and recommend further follow-up with his doctor. Opp. Exh. M.

Due to his injuries, Mr. Young was unable to return to carpentry and millwright work following the accident. His employer terminated him in December 2010, approximately six months after the accident, on the ground that it could no longer hold his position open. See Supplemental Affidavit of Janet K. Anderson, Ph.D., dated Dec. 4, 2013 (" Anderson Supp. Aff." ), Exh. 1 (timeline attached as an exhibit to the Anderson Supp. Aff.).

Two months later, in February 2011, Mr. Young underwent a " [l]eft cubital tunnel release" surgery at Howard County General Hospital, described as an " ulnar nerve decompression at the elbow." Opp. Exh. N (operative report of Dr. Michael Franchetti, Feb. 23, 2011). Then, in October 2011, Mr. Young underwent an " elective cervical surgery to alleviate protracted and left-sided neck, head, and arm pain," which involved an anterior cervical decompression, fusion, and plating of several vertebrae. Opp. Exh. O (operative report of Dr. Joseph Jamaris, Oct. 14, 2011); see also Deposition of Janet K. Anderson, Ph.D., Sept. 19, 2013 (" Anderson Dep." ) at 103; Anderson Supp. Aff., Exh. 1 (timeline).

On March 5, 2012, Mr. Young lost his health insurance. Anderson Supp. Aff., Exh. 1. Shortly thereafter, during a follow-up visit with his orthopedic surgeon on March 8, 2012, Mr. Young reported " significant neck pain and radicular pain down his left arm," as well as " numbness in his lateral elbow and lateral forearm." Opp. Exh. W (report of Dr. Franchetti, Mar. 8, 2012) at 1. At that time, Mr. Young remained out of work " due to his injuries." Id. He was prescribed " physical therapy for rehabilitation of his cervical spine," but he was unsure whether he would be able to receive the therapy " due to insurance considerations." Id. at 2.

Subsequently, on May 10, 2012, Mr. Young met with Dr. Janet Anderson, Ph.D, at the request of plaintiff's counsel. See Anderson Evaluation at 1; Anderson Dep. at 35. Dr. Anderson is a psychologist who is licensed to practice in Maryland. Affidavit of Janet K. Anderson, Ph.D., dated Sept. 11, 2013 (" Anderson Aff." ) ¶ 1.[6] She is also a certified rehabilitation counselor. Anderson Dep. at 17.

Dr. Anderson has counseled individuals concerning, inter alia, suicide, insanity, delirium, uncontrollable impulses, and depression. Anderson Aff. ¶ 1. She explained that, because her " field" is " rehabilitation," many of the individuals with whom she has worked suffered from " terrible chronic pain." Anderson Dep. at 30. Of relevance here, Dr. Anderson has " worked with many post-injured people who were suicidal, and who ultimately did commit the act," Anderson Supp. Aff. ¶ 9, including approximately ten to fifteen in her Social Security work and five in her private practice. Anderson Dep. at 30-32

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(further noting that she has " tested a lot of people who ultimately committed suicide" but adding that " no actual therapy clients" of hers have done so). In the context of her Social Security cases, Dr. Anderson had been asked to provide her opinion as to whether a suicide was related to a prior motor vehicle accident. Anderson Dep. at 85. In such cases, the underlying accident typically preceded the suicide by several years. Id.

Mr. Young met with Dr. Anderson for the purpose of psychovocational testing on May 10, 2012. See Anderson Evaluation at 1. Dr. Anderson's aim was to assess " both his mental situation and his physical situation," Anderson Dep. at 36, " to determine his current functional abilities." Anderson Evaluation at 1. Prior to the meeting, Dr. Anderson reviewed Mr. Young's medical records. Anderson Dep. at 108-09. At the meeting, which lasted at least an hour and a half, id. at 38, Dr. Anderson interviewed Mr. Young and administered several psychological tests. Anderson Evaluation at 1. As of May 2012, Mr. Young had been married to his wife for 11 years. At that time, their daughter Chelsea was approximately 16 years of age, and their younger daughter, Jenna, was 13.[7]

Dr. Anderson noted that, due to the " ulnar nerve accident to [Mr. Young's] left arm and having a cubital tunnel release," Mr. Young experienced " numbness and tingling and severe pain in that arm and hand, which [was] his dominant hand." Anderson Evaluation at 7. She observed that, at the meeting, Mr. Young's left hand " was shaking" as he wrote answers to questions. Anderson Dep. at 41. Mr. Young told Dr. Anderson that, " even working for 15 minutes with his hands causes a 'knife-like, dagger-like ripping feeling that hurts so bad that I have to just stop doing everything.'" Anderson Evaluation at 5 (quoting Mr. Young). She noted that, even after surgery, Mr. Young " cannot write for more than five minutes at a time without the pain increasing so much that it brings tears to his eyes." Id. at 5. Further, " an incomplete cervical fusion . . . ha[d] left him with numbness and pain in both hands and arms." Id. at 7. Mr. Young had also " been told that he ha[d] bulging disks in the lumbar area and may need surgery in that area." Id. at 3.

During the meeting, Mr. Young told Dr. Anderson that he was " suicidally depressed." Anderson Evaluation at 5; accord Anderson Dep. at 52. He also stated: " I feel like a loser. I can't work. I can't support my family." Anderson Dep. at 73. Mr. Young discussed his family largely " in the context of his not being able to control his angry behavior," which he knew " was driving his wife and daughters away from him." Id. at 74.

Mr. Young explained that " he and his wife began to fight bitterly when he no longer had a source of income, and his wife did not make enough money to support the family." Anderson Evaluation at 2. Mr. Young admitted " losing his temper and hollering at his daughter," and then " hat[ing] himself for it." Anderson Dep. at 46. Mr. Young felt " as if his marriage

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and his life [had] been destroyed," that there was " no hope for his future," and that he would " never be able to return to work." Anderson Evaluation at 5. Because of the accident and associated loss of income, Mr. Young said: " 'My whole family has been destroyed.'" Id. (quoting Mr. Young).

At the time of the meeting on May 10, 2012, Mr. Young's wife and daughters had moved to Davie, Florida, where they remained for several months. See Anderson Evaluation at 7; Deposition of Jamie Rose Young, July 23, 2013 (" Jamie Young Dep." ) at 34-35. Mr. Young told Dr. Anderson that he " felt personally responsible for driving his wife away . . . to Florida." Anderson Dep. at 74. While his wife and daughters were in Florida, Mr. Young lived with and was supported by his adult stepson, Joseph Capati. See Anderson Evaluation at 7.

Dr. Anderson concluded that Mr. Young was incapable of performing even light or sedentary work, and thus was " totally and completely disabled" and " would never be able to work again competitively." Id. She made a " very strong recommendation . . . that Mr. Young be sent to counseling and psychotherapy so that he can deal with his very serious depression, which is suicidal at times." Id. Dr. Anderson also issued a " second strong recommendation," that Mr. Young " be referred to a weight loss group" due to his " compulsive overeat[ing]" and " obesity." Id. [8]

Three weeks after the meeting with Dr. Anderson, Mr. Young's orthopedic surgeon, Dr. Franchetti, concluded that, " 'within a reasonable degree of medical certainty and probability, as a result of his injuries of June 16, 2010, the patient will not be able to return to his previous occupation as a maintenance contractor and carpenter, and his inability to do so is a direct result of his June 16, 2010 injuries.'" Opp. Exh. Q (vocational assessment of Charles Smolkin, Sept. 6, 2012) at 2 (quoting report of Dr. Franchetti, May 31, 2012). Unlike Dr. Anderson, Dr. Franchetti opined that Mr. Young " 'obviously will be employable for a less strenuous occupation,'" and thus " 'order[ed] a Functional Capacity Evaluation to assess his functional capacities.'" Id. (quoting report of Dr. Franchetti, May 31, 2012).

A functional capacity evaluation was performed at Metropolitan Occupational Therapy on June 21, 2012. See Opp. Exh. Q. Although it is unclear whether that evaluation identified any types of work that Mr. Young remained capable of performing, the evaluation stated: " 'IT IS UNLIKELY THAT MR. YOUNG WOULD BE ABLE TO SAFELY OR EFFICIENTLY PERFORM HIS PREVIOUS JOB AT HIS CURRENT LEVEL OF FUNCTIONING.'" Id. at 2 (quoting evaluation).

One month later, during a visit with his orthopedic surgeon on July 26, 2012, Mr. Young reported " persistent neck pain," " back pain and some left lower extremity radicular pain," and " pain in his ulnar nerve distribution of his left upper extremity." Opp. Exh. V (report of Dr. Michael Franchetti, July 26, 2012). On August 3, 2012, Mr. Young's neurosurgeon determined that " continued neck and upper back symptoms" may " eventually require surgical intervention[.]" Opp. Exh. U (report of Dr. Jamaris, Aug. 3, 2012).

On August 27, 2012, Charles Smolkin performed a Vocational Assessment of Mr. Young. Opp. Exh. Q. He concluded that Mr. Young " suffered multiple injuries on June 16, 2010 which preclude return to his

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occupation as a Millwright/Carpenter or any occupation which requires above a Light exertion," id. at 3, and his " significant physical limitations, pain, depression and the lack of a high school diploma make him a poor prospect for successful return to work." Id. at 4. As such, Smolkin " recommend[ed] that Mr. Young receive individualized tutoring at a cost of approximately $2,000 as soon as possible . . . ." " After successful completion of his G.E.D.," Smolkin opined, Mr. Young could work as a security guard, although likely only on a part-time basis due to his symptoms. Id. Smolkin observed: " Mr. Young appeared quite distressed over his inability to continue in his Carpenter/Millwright work because of his physical limitations and continuing pain." Id. at 2.

The impressions of Mr. Young's family members are also pertinent. For their part, Mr. Young's daughters reported that their father had undergone " a complete personality change" following the accident. Anderson Dep. at 92. Once, while driving with his stepson, Joseph Capati, over the Chesapeake City Bridge, Mr. Young remarked that he had been " thinking about driving off the bridge." Deposition of Joseph Capati, July 23, 2013 (" Capati Dep." ) at 15-17. On another occasion, at some point after his wife and daughters had moved to Florida for several months, his stepson overheard him " mentioning jumping off of the bridge" to someone on the phone. Capati Dep. at 25-26.

With respect to Mr. Young's suicide on September 6, 2012, the principal sources of information are four members of Mr. Young's family, who were with him for various periods during the evening before his death. Notably, although Mr. Young's wife and two daughters had temporarily moved to Florida in 2012, at the time of his suicide they had returned to the family's home in Maryland. See Jamie Young Dep. at 34-36.

Mr. Young's younger daughter, Jenna, was 14 at the time of her father's death. She recounted: " I remember my dad making fun of me, because, like, he always, like, made fun of me for, like, my weight or something. [B]ut that's just like him, like he was just cracking jokes." Deposition of Jenna A. Young, July 23, 2013 (" Jenna Young Dep." ) at 12. She continued, id. : " And then I remember getting upset about that. But then I went into my room. And that's all I remember." Jenna did not recall her father saying anything that would have suggested he " was depressed enough to commit suicide." Id.

Chelsea, Mr. Young's older daughter, returned from work to the family's home that evening. At the time, she was arguing with her boyfriend, Izzy, " about something little." Deposition of Chelsea L. Young, July 23, 2013 (" Chelsea Young Dep." ) at 20-21. Chelsea testified, id. at 21-22:

And then my dad came. And he was just saying that we need to stop. And it kind of got me mad that he was, like, up in our business, you know. But then he went back in the room and went to watch the Cowboys game.
Me and Izzy had calmed down, but I guess I was still mad at my dad, 'cause I was like, oh, my God. Like, why is he in our business? Pretty much that's what I was thinking.
And then I don't know how it even, like, started. I think it was over my work. Like, I would -- I threw it in [Mr. Young's] face. " That's why you need me to work."
* * *
And I said something like about me working. And I didn't understand his situation completely . . . . I didn't know

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that he wasn't, like, really allowed to work . . . . I guess I kind of threw it in his face. I was like, " You need to ...

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