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McCoy v. Hatmaker12/26/2000
This is an appeal from summary judgment granted to appellees in a wrongful death claim and survival action. Appellant Linda McCoy, individually and as personal representative of the estate of William McCoy, filed a complaint on January 10, 1999, in the Circuit Court for Baltimore City against two Baltimore City employees, paramedic Billie R. Hatmaker and police officer Brian Schwaab; the Baltimore City Police Department; and the Mayor and City Council of Baltimore City.
Hatmaker and Officer Schwaab filed separate motions for summary judgment, and the court heard these motions and McCoy's opposition to them on January 14, 2000. The City filed a line adopting Hatmaker's pleadings on the same day, although its separate summary judgment motion was not before the court at that time. The court granted Hatmaker's and Schwaab's motions at the hearing, and it later granted Baltimore City's motion for summary judgment on February 10, 2000. This appeal followed, and McCoy now asks:
1. Did the court below err in considering and granting appellees' motions for summary judgment on the basis that appellant failed to make a prima facie showing of gross negligence on the part of appellees Hatmaker and Schwaab, even assuming the truth of all allegations against them?
2. Did the court below abuse its discretion by striking an affidavit of appellant's expert witness contradicting that witness's deposition testimony, because it included testimony that amounted to a legal conclusion and because appellant submitted it beyond the discovery deadline?
3. Did the court below abuse its discretion when it quashed the subpoena for the deposition of a supervising Lieutenant who investigated the incident and entered a protective order barring, as privileged, discovery of his report?
To these questions, we answer "no" and explain.
Facts
On the evening of January 24, 1996, William McCoy, age 62, was driving himself and a co-worker, Bernard Lowe, to their place of employment. McCoy typically picked up Lowe at about 10:00 p.m. so that the two would arrive in time for their 11:00 p.m. shift.
McCoy, heading north on Hanover Street in Baltimore City, stopped for a red light. As the two men conversed, Lowe recalls, the following took place:
I said something to Bill, and Bill never answered me. I said, "You didn't see that Bill?" I turned around and looked, and I thought Bill dropped his cigarette between his legs because his head was down and his hand was in his lap, and I thought he dropped his cigarette. I'm like, "Hey Bill," and there was no response, no nothing.
The next I know we're going off into the parked cars. I reached over and grabbed the steering wheel. I'm still yelling at him and I grabbed the steering wheel and got it straight back out on the street to keep us from hitting the parked cars. That's how it happened.
Lowe then engaged the emergency brake. When the car had come to a stop, Lowe explains, McCoy was still in the driver's seat, non- responsive to Lowe's efforts to rouse him and making what Lowe described as gargling noises. Lowe left the car and flagged down a passing police car, driven by Office Irvin Bradley.
He asked me what was going on. I told him something is wrong with my buddy. I said, "All he's doing is gargling. I thought he dropped his cigarette." He heard me yelling, "Bill, Bill," and he walked over, put his hand in the throat area by his ear and stuff I guess to check for a pulse, and he said something.
Officer Bradley told Lowe that McCoy had a "small pulse," then called for assistance on his shoulder radio.
After Officer
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