Christensen v. Philip Morris USA Inc.6/8/2005
to judgment as a matter of law. Johnson v. Mayor and City Council of Baltimore City, ____ Md. ____, No. 60, September Term, 2004, slip op. at 4 (filed May 12, 2005); Walk v. Hartford Cas. Ins. Co., 382 Md. 1, 14 (2004); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737-38 (1993). A material fact is one that will affect the outcome of the case, depending upon how the factfinder resolves the dispute. Arroyo v. Bd. of Educ. of Howard County, 381 Md. 646, 654 (2004); King v. Bankerd, 303 Md. 98, 111 (1985); Mandl v. Bailey, 159 Md. App. 64, 82 (2004). Moreover, the movant has the burden with respect to a summary judgment motion. See Nerenberg v. RICA of Southern Md., 131 Md. App. 646, 660, cert. denied, 360 Md. 275 (2000).
Notably, the Court of Appeals has cautioned: "The hearing on a motion for summary judgment is not to determine disputed facts but to determine whether there are disputed facts." Jones v. Mid-Atl. Funding Co., 362 Md. 661, 675-76 (2001). Moreover, all factual disputes, and reasonable inferences drawn from the facts, are resolved in favor of the non-moving party. Jurgensen v. New Phoenix, 380 Md. 106, 114 (2004); Frederick Rd. Ltd. P'Ship v. Brown & Sturm, 360 Md. 76, 94 (2000). In resolving the motion, the trial court may not determine the credibility of witnesses. Impala Platinum, Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 326 (1978); Thacker v. City of Hyattsville, 135 Md. App. 268, 286 (2000), cert. denied, 363 Md. 206 (2001).
In this regard, we note that the circuit court placed considerable emphasis on the fact that the Decedent was long aware of the general association between cigarette smoking and cancer. Further, the circuit court adopted in its Opinion, as "undisputed facts," some of the factual chronology set forth in appellees' summary judgment motion. To illustrate, appellees asserted in their memorandum, in part:
May 6, 1998. Because the x-ray was abnormal, Dr. Shorofsky ordered a CAT scan of Mr. Christensen's lungs. The CAT scan definitively showed both a pleural mass and a paratracheal adenopathy. SOF 24. Mr. Christensen discussed the test results with his doctor, who was "very worried" that Mr. Christensen had cancer. SOF 25. Based on his discussion with his doctor, Mr. Christensen told his wife that he had cancer, which he believed was caused by smoking. SOF 26. This occurred more than three years before the Plaintiffs filed suit.
(Emphasis added). That same passage appears as an undisputed finding of fact in the court's Opinion. Thus, the court found that the Decedent believed, as of May 6, 1998, that his cancer was caused by smoking.
Appellees cited to a portion of Ms. Christensen's deposition testimony to support their claim. In that excerpt, appellees claimed that Ms. Christensen said her husband learned of the CAT scan results on May 6, 1998, and that he told her at that time that his cancer was caused by smoking. However, the deposition excerpt provided to us states only that Ms. Christensen said she was told by her husband that he had cancer. She did not testify that he also told her at that time that he believed the cancer was caused by cigarette smoking.
Moreover, appellants vigorously disputed appellees' averment as to knowledge of causation, arguing that the Decedent's own testimony conflicted with appellees' contention. They pointed to the Decedent's deposition testimony, in which he stated that he quit smoking some twenty-two years before he was diagnosed with lung cancer, and that he never had even a single cigarette after 1976. Appellants also observed that the Decedent had expressly testified that, given the number of years that had elapsed since he last smoked, he did not re
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