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Grimes v. Kennedy Krieger Institute8/16/2001
ead dust contamination subsequent to the original abatement measures, see id. at 95 n.43; that the Institutional Review Board involved in these cases abdicated its responsibility to protect the safety of the research subjects by misconstruing the difference between therapeutic and nontherapeutic research and aiding researchers in circumventing federal regulations, see id. at 4-6, 12-13; that Institutional Review Boards are not sufficiently objective to regulate the ethics of experimental research, see id. at 12-13; that it is never in the best interest of any child to be placed in a nontherapeutic research study that might be hazardous to the child's health, see id. at 84; that there was no therapeutic value in the research for the child subjects involved, see id. at 88-89; that the research did not comply with applicable regulations, see id. at 75; or that there was more than a minimal risk involved in this study, see id. at 75. I do not here condone the conduct of appellee, and it may well be that the majority's conclusions are warranted by the facts of these cases, but the record before us is limited. Indeed, the majority recognizes that the record is "sparse." Maj. op. at 14. The critical point is that these are questions for the jury on remand and are not properly before this Court at this time.
I emphasize that we are deciding the propriety of granting summary judgment. Therefore, upon remand, appellee is free to offer evidence to support its position.
Unfortunately, the majority chooses to go far beyond the narrow question presented in these appeals and addresses a number of ancillary issues in dicta. I cannot join the majority in holding that, in Maryland, a parent or guardian cannot consent to the participation of a minor child in a nontherapeutic research study in which there is any risk of injury or damage to the health of the child without prior judicial approval and oversight. See id. at 7, 13-14, 79-80, 89, 94-95. Nor can I join in the majority's holding that the research conducted in these cases was per se inappropriate, unethical, and illegal, see id. at 7-8, 13-14, 75-76, 85, 89, 93. Such sweeping holdings are far beyond the question presented in these appeals, and their resolution by the Court, at this time, is inappropriate. I also do not join in what I perceive as the majority's wholesale adoption of the Nuremberg Code into Maryland state tort law. See id. at 77-78, 79. Finally, I do not join in the majority's comparisons between the research at issue in this case and extreme historical abuses, such as those of the Nazis or the Tuskegee Syphilis Study. See id. at 10-11.
Accordingly, I join the majority only in the judgment to reverse the Circuit Courts' granting of summary judgments to appellees.
PER CURIAM OPINION along with its dissent on MOTION FOR RECONSIDERATION follows:
Filed: October 11, 2001
The Court has considered the motion for reconsideration and the submissions by the various amici curiae. The motion is denied, with this explanation.
Some of the issues raised in this case, in the briefs and at oral argument, were important ones of first impression in this State, and the Court therefore attempted to address those issues in a full and exhaustive manner. The case reached us in the context of summary judgments entered by the Circuit Court, which entailed rulings that the evidence presented by the plaintiffs, for purposes of the motions, even when taken in a light most favorable to them, was insufficient as a matter of law to establish the prospect of liability. We disagreed with that determination. Although we discussed the various issues and arguments in considerable detail, the only conclusion tha
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