WOMEN FIRST OB/GYN ASSOCIATES, L.L.C.
Deborah S., Reed, Moylan, Jr., Charles E., (Senior Judge,
Specially Assigned), JJ.
Deborah S., J.
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.
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. 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
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][.]"
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.]" 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
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 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.
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.
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.
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. We shall discuss the details
of their testimony in addressing Question III.
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.
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
preclude liability on the part of Women First. Alternatively, he asked the court to
exercise its revisory power under Rule 2-535 and "nunc
pro tunc reinstate the claim against Dr. McMillan[.]"
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.
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
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 Women First and found that Ms. Harris did not
intend to foreclose her claim against Women First by
dismissing her claim against Dr. McMillan.
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
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.
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
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.
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
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.
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.
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. 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.
appeal, Women First presents three questions, which we have
rephrased as follows:
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
III. Did the trial court err by permitting Ms. Harris to call
Dr. Karr as a hybrid fact and expert rebuttal witness?
answer these questions in the negative and shall affirm the
judgment of the circuit court.
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 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.
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.
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.").
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
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.
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
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).
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).
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
pathologist, executing a release of all claims against him in
consideration for the payment of $1 million
dollars. 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.
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.
deciding whether the release of the pathologist discharged
the hospital from liability, we analyzed whether the