author: Kehoe, J.

text:
    168 A.3d 1112
    Reginald J. DAVIS v. Mark ARMACOST
    No. 822,
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    September 1, 2017

      Argued by: J. Jonathan Schraub (Paige L. Smith, adopted the brief/on the brief), McLean, VA, for Appellant.
    Argued by: George S. Tolley III (Alison D. Kohler, Dugan, Babij, Tolley & Kohler, on the brief), Timonium, MD, for Appellee.
    Panel: Deborah S. Eyler, Kehoe, Lawrence F. Rodowsky (Senior Judge, Specially Assigned), JJ.
   Kehoe, J.

This appeal raises two questions, both fairly well settled in other jurisdictions but apparently matters of first impression in Maryland. The first is whether the trial court in a medical malpractice action was wrong to give jury instructions on negligence framed in terms of the conduct of a reasonable person. The second is whether the court abused its discretion when, in response to a question from the jury during its third day of deliberations, it imposed a one-hour deadline to conclude deliberations.

Mark Armacost sued his neurosurgeon, Reginald J. Davis, M.D., for malpractice and failure to obtain informed consent. At the end of a five-day trial, the court gave its instructions to the jury. Over Dr. Davis’s objection, the jury’s charge included an instruction on the general negligence concept of foreseeable circumstances—describing how “a reasonable person changes conduct according to the circumstances and the danger that is known or would be appreciated by a reasonable person” in addition to an instruction couched in terms of the standard of care that should be employed by a reasonably competent health care provider engaged in a similar practice and acting in similar circumstances.

During its third day of deliberations, the jury sent a note to the court asking what would happen if it could not reach a unanimous verdict. The court told the jurors that a mistrial would result from continued deadlock and also issued a modified Allen charge. In addition, the court requested the jurors to deliberate for another hour but also told them that they would not be asked to return the following day. About an hour later, the jury returned a verdict in favor of Mr. Armacost on the malpractice issue and in favor of Dr. Davis on the informed consent claim.

On appeal, Dr. Davis raises two questions, which we have rephrased:

1. Did the trial court commit reversible error by giving the foreseeable circumstances instruction (Maryland Civil Pattern Jury Instruction 19:3), prejudicially altering or heightening the duty owed by Dr. Davis to patient Mr. Armacost?
2. Were the court’s supplemental instructions unduly coercive?

As we will explain, we conclude that the trial court should not have given the foreseeable circumstances instruction nor, for that matter, another instruction defining negligence framed in terms of the conduct of a reasonable person. The court also erred in attaching a seeming one-hour deadline for the jury to reach a verdict after disclosing that a mistrial would result from a failure to reach a unanimous decision and issuing a modified Allen charge. Each error warrants reversal.

Background

On January 17, 2012, after years of neck and shoulder pain and a recent onset of numbness in his right hand, Mr. Arma-cost consulted with Dr. Davis, the chief neurosurgeon at the Greater Baltimore Medical Center (GBMC). They discussed both surgical and nonsurgical treatments, and Mr. Armacost ultimately agreed to Dr. Davis’s recommendation of a four-level anterior cervical discectomy and fusion surgery. Dr. Davis performed the procedure on March 1, 2012, and removed the damaged discs from Mr. Armacost’s cervical spine.

Mr. Armacost’s recovery was not a smooth one. Although he expressed no concerns in the first few weeks following the surgery, Mr. Armacost contacted Dr. Davis and GBMC several times between March and August, by telephone and by visiting the emergency room. He complained of a “pin-point opening” at the end of his incision and, later, of chest pain and episodic and progressive numbness in his left arm. A nurse found no active drainage from the opening, and X-rays showed that the hardware from his fusion procedure was well placed. Mr. Armacost had no fever. Nonetheless, at one appointment he was given oral antibiotics, and Dr. Davis eventually ordered a CT myelogram to attempt to figure out the cause of Mr. Armacost’s symptoms. Mr. Armacost took more than a month to schedule that procedure, but it was eventually performed on July 20. Dr. Davis interpreted the CT myelogram as normal.

On August 17, 2012, Mr. Armacost came to the GBMC emergency room reporting swelling and tenderness in his neck, redness near the incision, fever and chills. The “pin-point opening” had developed into an abscess. A doctor drained the abscess, and the fluid tested positive for a methicillin-sensitive Staphylococcus aureus bacterial infection—some five months post operation.

On September 3, 2014, Mr. Armacost filed a statement of claim with the Health Care Alternative Dispute Resolution Office. Mr. Armacost waived arbitration, and on November 3, 2014, he sued Dr. Davis and GBMC for malpractice and a failure to obtain informed consent.

At trial, Mr. Armacost’s expert witness testified that the fusion procedure performed on Mr. Armacost, although performed well, was not medically necessary and was not appropriate for someone of Mr. Armacost’s age and overall health condition. The same expert also told the jury that Dr. Davis and other members of GBMC’s staff were too slow in diagnosing and treating Mr. Armacost’s post-operative infection. Dr. Davis’s experts, on the other hand, testified that Dr. Davis had complied with the standard of care in determining that Mr. Armacost was a candidate for the fusion surgery and that Dr. Davis had obtained Mr. Armacost’s informed consent to the operation after appropriate disclosures. An infectious diseases expert testified that Mr. Armacost’s infection, diagnosed in mid-August, had been present for only a couple of weeks before it was caught; in other words, it hadn’t been lingering for months, undetected by Dr. Davis’s staff.

The jury was excused for deliberation in the afternoon of May 23, 2016. On May 26, the jury returned a verdict for Dr. Davis on the informed consent issue but for Mr. Armacost on the malpractice issue, awarding him $329,000 in damages. Dr. Davis appeals from that judgment, challenging parts of the initial instructions and the court’s supplemental instruction given in response to a note from the jury. The content and context of those instructions are discussed in detail below.

ANALYSIS

I. The standard-of-care instructions

The first part of Dr. Davis’s appeal focuses on the court’s instructions to the jury at the close of the five-day trial. One instruction combined the substance of Maryland Civil Pattern Jury Instructions 19:1 (defining negligence) and 19:3 (explaining the general-negligence concept of foreseeable circumstances) (emphasis added):

Negligence is doing something that a person using reasonable care would not do, or not doing something that a person using reasonable care would do.
Reasonable care means that caution, attention or skill a reasonable person would use under similar circumstances. A reasonable person changes conduct according to the circumstances and the danger that is known or would be appreciated by a reasonable person. Therefore, if the foreseeable danger increases, a reasonable person acts more carefully.[]

The trial court also instructed the jury on the requisite standard of care for physicians in the context of medical malpractice specifically:

A health care provider is negligent if the health care provider does not use that degree of care and skill which a reasonably competent health care provider engaged in a similar practice and acting in similar circumstances would use.[]

After all the instructions were given, Dr. Davis objected:

[Defendant’s Counsel[]: I respectfully except to your decision to give the model pattern jury instruction 19:3, foreseeable circumstances....
I believe giving the foreseeable circumstances instruction confuses the notion of whether or not Doctor Davis had to see into the future as to what may or may not happen with Mr. Armacost and therefore had a heightened duty to act in a different way....
The question for Doctor Davis in this case is ... was he negligent, did he do a surgery that wasn’t indicated, did he fail to advise the Plaintiff about the surgery, and did he fail to properly appreciate the signs and symptoms of infection postoperatively.
There are no facts in this case which would suggest that Doctor Davis had any duty beyond the normal standard that would apply to a health care professional....
The Court: Why don’t we do this, it’s 10:05 and the jury— [Defendant’s Counsel]: I’m done.
The Court: Good. Okay.
* * *
[Plaintiffs Counsel]: In responding to that, Your Honor, I think that the—
The Court: I don’t need you to respond to that.
[Plaintiffs Counsel]: Very well. We have no exceptions for the Plaintiff.
The Court: Okay. All right. One divisive issue.

The court did not otherwise respond to Dr. Davis’s objection or modify the instructions.

After the instructions were given to the jury, trial counsel gave their closing arguments. During the plaintiffs closing argument, counsel made the following comment to the jury (emphasis added):

What do you look to if you want to ignore all of the expert testimony? You could do that in this case. It is your right [to] credit what you want to credit and ignore what you want to ignore.

The jury was sent to deliberate with a printed copy of the court’s instructions and a verdict sheet to guide deliberation. The questions on the verdict sheet relevant to this appeal read as follows:

1. Do you find that [Dr. Davis], and [GBMC] as his employer, were negligent in their treatment of [Mr. Armacost]?
2. Do you find the negligence of [Dr. Davis], and [GBMC] as his employer, caused injury to [Mr. Armacost]?

The jury answered both questions affirmatively.

Dr. Davis argues that the trial court committed reversible error by giving the foreseeable circumstances instruction, prejudicially heightening the duty owed to the plaintiff patient, Mr. Armacost. According to Dr. Davis, the contested instructions, sounding in general negligence, modified the standard of care to which Dr. Davis was expected to adhere, inviting the jury to compare his conduct to that of a reasonable person without his specialized knowledge or skill. Dr. Davis contends that instructing the jury about foreseeable circumstances permitted the jury to speculate about inapplicable legal principles and implied there was some type of foreseeable danger that required Dr. Davis to change his conduct accordingly.

Mr. Armacost’s response is straightforward: The instructions given were correct because the general rules of negligence apply to malpractice claims, which sound in negligence. Because the instructions were not erroneous, Mr. Armacost argues, they could not be prejudicial.

We hold that giving the challenged instruction constitutes reversible error because (1) pattern jury instructions framed in terms of the conduct of a reasonable person are inapplicable in a medical malpractice case and (2) the context surrounding the given instruction did not dispel a probability of prejudice to Dr. Davis.

A. The standard of review

“We review a trial judge’s decision whether to give a jury instruction under the abuse of discretion standard.” CSX Transp., Inc. v. Pitts, 430 Md. 431, 458, 61 A.3d 767 (2013) (citing Conyers v. State, 354 Md. 132, 177, 729 A.2d 910 (1999)). Error will be found if the given instruction is not supported by evidence in the case. Rustin v. Smith, 104 Md.App. 676, 680, 657 A.2d 412 (1995). However, the court will only overturn a jury verdict and grant a new trial based on an erroneous instruction if the appealing party can show that it rises to the level of prejudicial error. Fry v. Carter, 375 Md. 341, 355, 825 A.2d 1042 (2003).

B. The general negligence instructions were erroneous.

It is true, as Mr. Armacost notes in his brief, that “the general principles which ordinarily govern in negligence cases also apply in medical malpractice claims.” Shilkret v. Annapolis Emergency Hosp. Ass’n, 276 Md. 187, 190, 349 A.2d 245 (1975) (citing Benson v. Mays, 245 Md. 632, 636, 227 A.2d 220 (1967)). As in other negligence cases, a plaintiff alleging medical malpractice must prove the standard elements of a negligence case—among other things, a breach of duty or a lack of the requisite skill or care on the part of the defendant physician or other health care provider. Univ. of Md. Med. Sys. Corp. v. Gholston, 203 Md.App. 321, 330, 37 A.3d 1074 (2012).

However, “whereas the conduct of the average layman charged with negligence is evaluated in terms of the hypothetical conduct of a reasonably prudent person acting-under the same or similar circumstances, the standard applied in medical malpractice cases must also take into account the specialized knowledge or skill of the defendant.” Shilkret, 276 Md. at 190-91, 349 A.2d 245 (1975) (citing W. Prosser, Torts 32 (4th ed. 1971)). That is why Maryland law has maintained, since the 1889 decision of State v. Housekeeper, a separate standard of care in medical negligence cases, expecting of doctors “[t]hat reasonable degree of care and skill which physicians and surgeons ordinarily exercise in the treatment of their patients.” 70 Md. 162, 172, 16 A. 382 (emphasis added). Modem formulations require that physicians “exercise the degree of care or skill expected of a reasonably competent health care provider in the same or similar circumstances.” Crise v. Maryland General Hosp., Inc., 212 Md.App. 492, 521, 69 A.3d 536 (2013) (emphasis added).

The reason for the distinction between the standards was made clear in Marcus Z. Shar & David E. Manoogian, The Medical Malpractice Law of Maryland 3 (2d ed. 1992):

As members of a “learned profession” doctors are expected to possess knowledge and skill in the context of their vocation surpassing that of other “reasonable men,” and are therefore expected to conduct themselves in conformity with that heightened experience and training. [T]he law prohibits courts or juries from dictating how medicine is to be practiced on the basis of what might “seem right.” Proof of medical negligence must therefore differ somewhat from the traditional “reasonable man” standard applicable to tort actions generally.

Because of this special standard of care, expert testimony is essential in almost all medical malpractice claims to determine whether a doctor has been negligent. DeMuth v. Strong, 205 Md.App. 521, 539, 45 A.3d 898 (2012) (citing Brown v. Meda, 74 Md.App. 331, 342, 537 A.2d 635 (1988)). Expert testimony is not required in only the rarest of cases in which the average juror can determine independently that the physician was negligent—by amputating the wrong leg, for example. DeMuth, 205 Md.App. at 539, 45 A.3d 898. This is because medical malpractice cases are usually more complex than general negligence claims. Puppolo v. Adventist Healthcare, Inc., 215 Md.App. 517, 534, 81 A.3d 620 (2013) (citing Barnes v. Greater Baltimore Medical Center, Inc., 210 Md.App, 457, 481, 63 A.3d 620 (2013)). “[T]o ask the jury to go beyond professional standards to determine whether it was reasonable for the defendant to follow a particular medical course of treatment would in effect ask for the jury’s medical judgment—something that no member of the jury is likely to be capable of giving” without the aid of expert medical testimony. Kenneth S. Abraham, The Forms and Functions of Tort Law 82 (4th ed. 2012).

No reported Maryland appellate opinion has explicitly addressed the suitability of general negligence or foreseeable circumstances instructions in medical negligence cases. But courts in other states presented with the issue have decided that instructions on ordinary care, foreseeability of risk and other general negligence principles muddle or misstate the applicable standard of care in malpractice cases. For example, in Hales v. Pittman, 118 Ariz. 305, 576 P.2d 493, 498 (1978), the Supreme Court of Arizona affirmed the trial court’s refusal to give jury instructions framed in terms of ordinary care, “as required of laymen,” in a medical malpractice case. “[T]he physician incurs liability because of his breach of the standard of care applicable to physicians on account of their special knowledge.” Id. What constitutes “reasonable care” is already covered by instructions “framed in terms of the skill and learning of a neurosurgeon.” Id.

Similarly, in Cromer v. Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 29 N.E.3d 921, 931 (2015), the Supreme Court of Ohio found that a trial court erred when it gave jury instructions on foreseeability of harm in a medical malpractice case. “[I]n most medical negligence cases, [the] foreseeability of a risk of harm related to the medical treatment is conceded, leaving no need for a jury instruction on foreseeability.” Id. at 934. Even if foreseeability of harm were at issue in the case, the court maintained, it would still be “inappropriate to view foreseeability in terms of a layperson’s ‘ordinary’ standard of care.” Id. at 933. The jury should not have been given an instruction comparing the doctors’ conduct to that of “a reasonably careful person.” Id.

For these reasons, it is wrong to instruct juries “that a greater risk to the patient creates a higher duty in the physician.” 1 David W. Louisell and Harold Williams, Medical Malpractice § 8.04(l)(a) (Gordon L. Ohlsson ed., 2017). Those authors point to two representative decisions. The Ohio Court of Appeals held in Hinkle v. Cleveland Clinic Found., 159 Ohio App.3d 351, 823 N.E.2d 945, 960 (2004), that no case law would justify giving an instruction on “greater danger” in a medical malpractice case. The Supreme Court of South Carolina agreed in Pittman v. Stevens, 364 S.C. 337, 613 S.E.2d 378 (2005), holding such an instruction “inappropriate” in medical malpractice cases because “[e]very medical decision encompasses varying degrees of danger. Id. at 381.

By including Maryland Civil Pattern Jury Instruction 19:3 in the jury’s charge, the trial court three times invited the jury to determine whether Dr. Davis was negligent by invoking the conduct and perception of a “reasonable person” instead of the accepted practice among Dr. Davis’s similarly skilled peers. This error was reinforced by including Maryland Civil Pattern Jury Instruction 19:1, which focuses on “reasonable care” and the “caution, attention or skill [of] a reasonable person.” While the instructions on general negligence and foreseeable circumstances may have been correct statements of negligence law in Maryland, they failed to account for a medical doctor’s specialized knowledge and skill. The appropriate standard of care for Dr. Davis (Maryland Civil Pattern Jury Instruction 27:1)— also given by the court—already takes account of the risks involved in the decision to operate and in any post-operative treatment. The standard also rightly asks jurors to consider how a physician—not the average reasonable person—responds to those risks.

Medical malpractice claims are not general negligence claims, and so jury instructions on general negligence, although correct statements of Maryland law, are not supported by the facts of a case centered on the allegedly negligent conduct of a physician. Accordingly, we hold that the trial court erred in giving general negligence instructions in a medical malpractice case.

C. The general negligence instructions were also prejudicial.

As noted above, even if an instruction given to the jury is deemed erroneous, this court will overturn a jury verdict and grant a new trial based on an erroneous jury instruction “only if it rises to the level of prejudicial error.” CSX Transp., Inc. v. Pitts, 430 Md. 431, 458, 61 A.3d 767 (2013). To be prejudicial, an erroneous instruction must be “misleading or distracting for the jury” or permit the jury to “speculate about inapplicable legal principles.” Barksdale v. Wilkowsky, 419 Md. 649, 669-70, 20 A.3d 765 (2011) (citing Fry v. Carter, 375 Md. 341, 355, 825 A.2d 1042 (2003)). There are no “[p]recise standards for the degree of prejudice required for reversal,” Beahm v. Shortall, 279 Md. 321, 331, 368 A.2d 1005 (1977). Nevertheless, to evaluate how prejudicial an erroneous instruction might have been, a reviewing court may consider, among other things, (1) how the appellee’s argument to the jury “may have contributed to the instruction’s misleading effect,” (2) whether the jury asked for a rereading of the erroneous instruction and (3) the effect of other instructions in remedying the error. Barksdale, 419 Md. at 669, 20 A.3d 765 (quoting Nat’l Med. Transp. Network v. Deloitte & Touche, 62 Cal.App.4th 412, 72 Cal.Rptr.2d 720, 731 (1998)) (internal quotation marks removed).

The reviewing court focuses its inquiry “on the probability, not the possibility of prejudice.” Flores v. Bell, 398 Md. 27, 33, 919 A.2d 716 (2007). But definitive proof of prejudice is not required. “The mere uncertainty as to prejudice may be grounds for holding an error is reversible.” Barksdale, 419 Md. at 667, 20 A.3d 765 (citing Flores, 398 Md. at 35, 919 A.2d 716, and Roger J. Traynor, The Riddle of Harmless Error 64 (1970) (observing that an error “can be declared prejudicial for the simple reason that the court is unable to declare a belief one way or the other as to the probable effect of the error on a particular judgment.”)). This approach is especially apt in cases in which the form of the jury’s verdict makes it difficult—if not impossible—for a reviewing court to decide whether the erroneous instruction was relied upon in reaching that verdict. See Fry, 375 Md. at 356, 825 A.2d 1042. This is because “a court cannot ‘unbake’ the jury verdict and examine the impact of any one ingredient.” Barksdale, 419 Md. at 665, 20 A.3d 765.

The Court’s analysis in Barksdale is instructive as we assess the prejudicial effect of the instructions in the present case. In Barksdale, the plaintiff sued the owners of her childhood home, claiming she had been injured by lead paint on the premises. The Court of Appeals held an instruction given at trial, on a tenant’s duty to keep a dwelling “clean and sanitary,” was erroneous because it “was not relevant to the issues before the jury, i.e., whether the landlord was negligent or engaged in deceptive trade practices in renting the Property.” Id. at 655-56, 20 A.3d 765. The instruction was prejudicial because it suggested that the plaintiffs grandmother, who rented the home from the defendant, may have been eontribu-torily negligent for failing to report flaking paint to her landlord. Whether the grandmother had been negligent was not an issue before the jury, however, because the grandmother’s failure to report the flaking paint could not be attributed to the child, who was also too young to have had any duty to report at that time. The error “touched on the heart of the case,” by inappropriately apportioning blame for Barksdale’s injury, and thus warranted a reversal of the judgment for the defendants. Id. at 672, 20 A.3d 765.

Among the authorities relied upon by the Barksdale Court was a Minnesota case that, like this appeal, dealt with conflicting standards of care given in jury instructions. In Lindstrom v. Yellow Taxi Co. of Minneapolis, 298 Minn. 224, 214 N.W.2d 672 (1974), a suit for damages brought by injured passengers in a taxi cab, the trial court gave jury instructions that combined an inapplicable general negligence “reasonable care” standard with the correct “highest degree of care” standard applied to Minnesota common carriers, like the defendant taxi company. Id. at 674. Even though the trial court later withdrew its instructions on the “reasonably-prudent-person standard of care,” it ended up granting the plaintiffs’ motion for a new trial. Id. The Minnesota Supreme Court affirmed that grant because “repeated references” to the ordinary-care standard, in the court’s words, “permeated” the jury’s charge and “failed to convey clearly to the jury the single standard of care applicable to a common carrier.” Id. at 677.

Application of this case law leads us to conclude that the erroneous instructions in the present case were prejudicial. The general negligence instructions struck at the heart of the case, viz., Dr. Davis’s liability, and permitted speculation about inapplicable legal principles (the hypothetical conduct of a reasonable person in the face of foreseeable harm). The concept of reasonable care as decided by ordinary people, “permeated” the charge given to the jury and left the jurors with two distinct standards against which Dr. Davis’s conduct was to be measured: that of a “reasonable person” and that of a “reasonably competent health care provider engaged in a similar practice and acting in similar circumstances.” Jurors were also asked to consider whether Dr. Davis had failed to consider some set of risks or to adapt his behavior to them— an issue, like contributory negligence in Barksdale, that was not raised by the evidence at trial. The misleading effect of the instruction was compounded by comments in Mr. Armacost’s closing arguments inviting the jurors to disregard the expert testimony needed to establish the appropriate standard of care.

Our concerns about juror speculation beyond the bounds permitted by the proper standard of care for health care professionals were not allayed by the following exchange between this Court and appellee’s counsel at oral argument (emphasis added):

The Court: If the medical health care provider instruction encompasses a duty to consider the patient’s preexisting health condition as part of the standard of care and skill, then how [is] the 19:3 instruction ... pertinent to what the jury is supposed to do? What legal principle does it add to the ... standard instruction for a medical malpractice case?
Appellee: [I]t helps the jury to understand this idea of what is reasonable care. It is an additional piece of information for jurors who don’t in their everyday lives think about what is reasonable care and what is reasonable care under the circumstances.
The Court: [AJre you saying that it allows them to make an assessment about reasonableness outside of what the experts have testified to?
Appellee: It allows them to make an assessment of reasonableness based on the evidence, which is what we asked them to do.
The Court: [Ajnswer my question.
Appellee: The answer to your question is yes because that’s what we ask them to do.

Additionally, while the erroneous instruction was not reread for the jury, a printed version of the erroneous instruction accompanied the jury during its deliberations. And the other instructions given, orally and in print, did not remedy the error. The trial judge gave the proper standard of care only once. In total, the “reasonably competent health care provider” was mentioned one time in the instructions, while the “reasonable person” was named four times.

We are further inclined to find the error prejudicial because, although the jury completed a verdict sheet, the questions therein do not permit us to rule out the probable prejudice of the error. The questions on the verdict sheet and the jury’s yes-or-no answers to them tell us that Dr. Davis was found negligent but do not evince the standard of care upon which that verdict was based. As it was for the Court in Barksdale, it is impossible for us to divine the extent to which the erroneous instruction affected the jury’s deliberations.

The law is clear that the jury was supposed to evaluate Dr. Davis against his peers. But the erroneous instructions from the trial judge and the invitation from plaintiffs counsel to disregard the opinions of the experts permitted a jury not made up of neurosurgeons to impermissibly speculate about how they would have approached the risks attendant in a four-level anterior cervical discectomy and fusion surgery. The instructions also implied that Dr. Davis’s failure to adapt his course of treatment to an increasing danger was at issue when no such evidence was put before the trier of fact. For those reasons, we conclude that the challenged instructions were both erroneous and prejudicial.

II. The supplemental jury instruction

The second part of Dr. Davis’s appeal focuses on the timing and the wording of the modified Allen charge given by the trial judge, as well as the court’s preface to the instruction. As noted above, the jury began to deliberate during the afternoon of May 23. Deliberation continued for all of May 24, until the jury sent a note to the court: “Undecided. Please recess until tomorrow.” The jury resumed deliberations on the next morning, and, at around 2:15 p.m., the jury sent the court another note that read, “Please advise as to what happens if we are unable to reach a unanimous decision.”

At this point, the trial court conferred with counsel about how to respond to the jury’s question (emphasis added):

The Court: I propose to have them come out and read the Allen charge. I’m going to let them know—I mean, today, if they can reach a decision today I think that’s it, but we mil give them another hour and see if anybody wants to re-examine his or her evidence.
[Defendant’s Counsel]: May I be heard briefly?
The Court: Yes.
[Defendant’s Counsel]: I know that the Allen charge is relatively widely recognized but I would object to it being given.
I think it unfairly indicates to people that they should sway their views and perhaps give up a position that they hold very firmly.
* * *
I would ask that the jury be given to the end of the day without it. And if they can’t, at that point in time I would move for a mistrial.
The Court: Not responding to this note for two hours? Just let them sit in there, and stew, that’s your proposal?
[Defendant’s Counsel]: Oh, no, Your Honor. I would bring them out and say we would ask that you continue your ... deliberations and attempt to reach a unanimous conclusion.
The Court: All right. I feel as though they have already done that. They told us yesterday undecided, and so they said that yesterday and we just let them go home. So we already gave them that chance.

The court recalled the jury to the courtroom and told the jurors that a mistrial would be declared if they were unable to reach a unanimous decision; it would then be up to the parties to decide whether or not to retry the case. The judge then gave the following instruction (emphasis added):

[Yjour verdict must represent the considered judgment of each juror, To return a verdict it is necessary that each juror agree. Your verdict must be unanimous. Do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict,
It is your duty as jurors to consult with one another, and we know that you have been doing that since you began your deliberations. It is your duty to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment.
Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.
In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous.
So I’m going to ask you to deliberate another hour. I know that you have been at it pretty hard. We have been in the courtroom and have heard you from time to time. We can’t hear what you say. We just hear words being said. ... And we will see if you can reach a verdict today....
I’m not going to ask you to return tomorrow, but I do want you to try again.

The jury was sent back to deliberate and, at the end of the hour, returned a verdict for Mr, Armacost on the malpractice issue only.

Dr. Davis raises three arguments with respect to the court’s supplemental jury instructions. He first argues that the court abused its discretion in telling the jurors a mistrial would result from a failure to reach a unanimous decision. He also claims it was an abuse of discretion to give the modified Allen charge at all because it was not established that the jury was deadlocked. Finally, he challenges the court’s addition to the approved language of the modified Allen charge, providing an apparent one-hour deadline to reach a verdict, which, he claims, unduly coerced the jury.

Mr. Armacost responds that the trial court acted within its broad discretion in answering the jury’s question about a failure to reach a unanimous decision and in deciding to issue the modified Allen charge on the third day of deliberations, after the jury had sent two notes indicating its inability to reach a unanimous decision. He also contends that the judge’s asking jurors to deliberate for one more hour and telling them they would not be brought back the following day did not actually impose a deadline for a verdict.

We agree with Mr. Armacost on the first two points. But the third issue—the court’s apparent one-hour deadline to reach a verdict—is more problematic.

A. The standard of review

A trial court’s decision to give supplemental jury instructions—including, among other things, a modified Allen charge—is within the sound discretion of the trial judge and is subject to review by the Court for an abuse of discretion. See State v. Bircher, 446 Md. 458, 462, 132 A.3d 292 (2016) (providing the standard of review for jury instructions generally); Nash v. State, 439 Md. 53, 90, 94 A.3d 23 (2014) (citing Kelly v. State, 270 Md. 139, 144, 310 A.2d 538 (1973)) (providing the standard of review for modified Allen charges specifically). Supplemental instructions may include “an instruction given in response to a jury question.” Appraicio v. State, 431 Md. 42, 51, 63 A.3d 599 (2013).

B. To inform the jury of the possibility of a mistrial was not an abuse of discretion.

Dr. Davis argues that the court erred by disclosing, in response to a question from the jury, that the inability to reach a unanimous decision would lead to a mistrial. We are not convinced by this argument. Trial courts, in fact, “have a duty to answer, as directly as possible, the questions posed by jurors.” Appraicio, 431 Md. at 53, 63 A.3d 599. The trial court’s clarifying instruction should not be “ambiguous, misleading, or confusing.” Id. at 51, 63 A.3d 599 (quoting Battle v. State, 287 Md. 675, 685, 414 A.2d 1266 (1980) (internal quotation marks removed). And the judge’s response should be more circumscribed when the jury “seeks guidance on how to find the facts.” The trial court in this case was not addressing a question about facts or the inferences to be drawn from them, nor was the answer given “ambiguous, misleading, or confusing.”

Dr. Davis suggests that the trial court nonetheless erred because this answer was given in conjunction with a modified Allen charge. We need not look further than the facts of Plumley v. State, 4 Md.App. 671, 680-81, 245 A.2d 111 (1968), in which we held that the court did not abuse its discretion by prefacing a modified Allen charge by saying the following:

Well, I have no desire to rush you into anything, but as you know, this case has been going on for four days now and ultimately is going to have to be decided. If it can’t be decided by you then another jury is going to have to decide it.

That remark was given by the court sua sponte, after seven hours of deliberation and after the jury foreman had reported progress in its decision-making.

In the case before us, the trial court provided the jury with a similar disclosure during the third day of deliberation and in response to a question about this very issue from the jury. The disclosure—that a failure to reach a unanimous decision results in a mistrial—was an accurate statement of Maryland law. As in Plumley, we do conclude that the trial court’s response was not an abuse of discretion simply because it was followed by a modified Allen charge.

C. The decision to issue a modified Allen charge was not itself an abuse of discretion.

A modified Allen charge is an instruction given to juries when the trial judge believes they are deadlocked or, even before deliberations begin, as a general instruction about juror unanimity and a duty to deliberate. Hall v. State, 214 Md.App. 208, 218-19, 75 A.3d 1055 (2013). The charge’s name comes from the U.S. Supreme Court decision Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896), in which a trial judge, when recalling the jury for further instructions, told the jurors:

that in a large proportion of cases absolute certainty could not be expected; that, although the verdict must be the verdict of each individual juror, ... they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself.

In Maryland, the traditional Allen charge has been supplemented by a modified version recommended by the American Bar Association. Burnette v. State, 280 Md. 88, 96, 371 A.2d 663 (1977) (holding the ABA-approved instruction “superior” to the traditional Allen charge because “[i]t does not charge the minority to doubt the reasonableness of its convictions when they are not concurred in by the majority,” avoiding the “coercive tendency” of the instruction). This preference is also reflected in Maryland’s pattern jury instructions.

“[T]he decisions as to whether to utilize an Allen-type charge, when to employ it, and what words should be selected are best left to the sound discretion of the trial judge.” Kelly, 270 Md. at 143, 310 A.2d 538 (1973). The charge is normally given, however, “only when the jury appears to have encountered difficulties in reaching unanimity,” and especially when the jury has announced those difficulties in some way. Orthopedic Equip. Co. v. Eutsler, 276 F.2d 455, 463 (4th Cir. 1960). When jurors “ ‘announce their failure to agree, the court may impress upon them the importance of agreeing, urge them to listen to argument and sacrifice the pride of personal opinion, and he may send them back for further deliberation until such time as it becomes apparent that hope of an agreement is futile.’ ” Leupen v. Lackey, 248 Md. 19, 26, 234 A.2d 573 (1967) (quoting 1 Branson’s Instructions to Juries 149-50 (3rd ed. A. Reid 1960 Replacement)). A jury must be given “ample time for discussion and consideration of the issues,” Kelly, 270 Md. at 144, 310 A.2d 538, but no fixed minimum deliberation is required before a modified Allen charge may be given.

In Plumley v. State, we approved the use of an Allen instruction after a jury had been deliberating for seven hours. 4 Md.App. 671, 683, 245 A.2d 111 (1968). There, the trial court recalled the jury to the courtroom to give the charge on its own motion—without any other sign of juror inability to reach an agreement. In fact, the jury, when asked, reported progress, not impasse, to the judge. Id. at 680, 245 A.2d 111. In Lang v. State, the jury deliberated less than five hours before the charge was given. 6 Md.App. 128, 133, 250 A.2d 276 (1969). In neither case was it determined that the judge abused his discretion in issuing a modified Allen charge.

Here, the jury was more than halfway through its third day of deliberation, and the jurors had reached out to the judge to ask what would happen if they could not reach a decision, before the charge was given. At that point, the judge’s determination that the jury was struggling to reach a unanimous decision was a reasonable one. The trial court did not abuse its discretion in deciding that delivering a modified Allen charge might assist the jury.

This conclusion, however, is not the end of our analysis. Notwithstanding the deference that appellate courts give to a trial court’s decision as to whether and when to issue a modified Allen charge, if the charge itself was unduly coercive, the instruction ultimately given may warrant reversal of the judgment below.

D. The judge’s time-conscious modifications to the charge were unduly coercive.

In deciding whether a modified Allen charge warrants reversal, “[t]he question to be determined is whether resort to the instruction forced or helped to force an agreement which would not otherwise have been reached except for the intimidating or coercive effect of the charge upon some jurors or whether it merely initiated a new train of real deliberation which ended the disagreement and enabled each juror conscientiously and freely to subscribe to the unanimous verdict.” Fletcher v. State, 8 Md.App. 153, 155-56, 258 A.2d 781 (1969). A deadlocked jury should not be coerced into reaching a verdict when a modified Allen charge is given. Hall v. State, 214 Md.App. 208, 218, 75 A.3d 1055 (2013) (citing Kelly, 270 Md. at 144, 310 A.2d 538). Juries must instead reach their conclusions “freely and voluntarily, without being swayed or tainted by outside influences.” Caldwell v. State, 164 Md.App. 612, 635, 884 A.2d 199 (2005) (citing Bishop v. State, 341 Md. 288, 294, 670 A.2d 452 (1996)).

A trial court, in issuing a modified Allen charge, “should closely adhere to the wording of the ABA recommended instruction.” Kelly, 270 Md. at 143, 310 A.2d 538. Any deviation from the approved language merits careful review by the appellate court. Hall, 214 Md.App. at 220, 75 A.3d 1055. The judge gets more latitude when modifying a modified Allen charge before the jury retires to consider the case. But if the instruction is given later on because of apparent juror deadlock, any judicial modification will be subject to “careful scrutiny” to determine “whether the province of the jury has been invaded and the verdict unduly coerced.” Kelly, 270 Md. at 144, 310 A.2d 538.

In the present case, the judge modified the ABA charge approved in Burnette v. State, 280 Md. 88, 96, 371 A.2d 663 (1977), by asking the jurors to deliberate for one more hour and telling them they would not be brought back the following day to deliberate if no decision was reached. Dr. Davis argues that these additions unduly coerced the jury. As evidence of the coercion, he points to the fact that the jury, unable to reach a verdict for two and a half days, came to a unanimous decision within an hour after the judge issued the charge.

That a seemingly deadlocked jury reaches a decision quickly after a modified Allen charge is given may suggest coercion. See Lowenfield v. Phelps, 484 U.S. 231, 232, 108 S.Ct. 546, 548, 98 L.Ed.2d 568 (1988). But a quick turnaround does not itself prove the charge given to the jury was unduly coercive. See, generally, United States v. Arney, 248 F.3d 984, 990 (10th Cir. 2001) (verdict one hour after charge upheld), United States v. Hernandez-Albino, 177 F.3d 33, 39 (1st Cir. 1999) (same), Munroe v. United States, 424 F.2d 243, 245-46 (10th Cir. 1970) (verdict announced forty minutes after charge upheld) and Lang v. State, 6 Md.App. 128, 133, 250 A.2d 276 (1969) (verdict after only seven minutes of additional deliberation upheld). The point of the charge is to foster the jury’s ability to reach a decision. Depending on the circumstances, that a decision is reached soon after the charge is given maybe no more than a sign of the efficacy of the instruction.

But the modified Allen charge was not given in isolation in this case. The trial court also told the jury it would have one more hour to deliberate and that it would not be brought back the folio-wing day (a Thursday) to continue its deliberations. In doing so, the trial judge may have, albeit not intentionally, sent the signal to the jury that it was “more important to be quick than to be thoughtful.” United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971). The clock, and not the reasoned judgment of each individual juror, was made to control the deliberation.

No Maryland case has confronted a time limit attached to a modified Allen charge, but courts in other jurisdictions have roundly rejected the imposition of such limits, finding them unduly coercive. See, e.g., United States v. Amaya, 509 F.2d 8, 9 (5th Cir. 1975), cert. denied, 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977) (holding judicially imposed time constraints coerce verdicts and necessitate reversal; in this case, judge asked the jury, after receiving a note about juror deadlock, “Please continue to review the evidence again, try to reach a verdict and report back to me in one hour.”); Lucas v. American Mfg. Co., 630 F.2d 291, 293 (5th Cir. 1980) (advising jury that due to impending hurricane it must reach verdict within fifteen minutes was coercive). See also U.S. v. Lansdown, 460 F.2d 164, 169 n.3 (1972) (holding judge's decision to order a mistrial after 11 hours of deliberations, in a case with close questions of credibility and without consulting jury or counsel, erroneous. “A jury cannot operate under a rigid time deadline.”).

Other courts have held that a supplemental instruction that addresses how long the jury will deliberate may not be inappropriate if no deadline to reach a verdict is imposed. For example, United States v. Coast of Maine Lobster Co., Inc., the Court decided it was not coercive for a judge to ask a jury to deliberate one more hour at 11:30 p.m. and then come back the next morning if it had not reached a consensus on all issues. 557 F.2d 905, 911 (1st Cir. 1977) (“The trial judge gave no indication that a verdict must be reached, much less that a verdict be reached within a specified time.”). Similarly, the Court of Appeals for the Tenth Circuit held in Glazerman v. United States that a trial court may also ask the jury to advise the court if its deliberations would continue for more than an hour so that the judge can send the jury home for the night. 421 F.2d 547, 554 (10th Cir. 1970).

Unlike Glazerman and Coast of Maine Lobster Co., the trial court in the present case told the jury it would not be brought back the next day to deliberate if it could not reach a verdict within an hour. Knowing that failing to reach a decision within an hour could result in a mistrial surely could have pressured the jury to reach some kind of accord under the judge’s imposed time limit. The court was not simply asking the jury to reason together; instead, the jurors were entreated “to strive toward a verdict by a certain time.” Burroughs v. United States, 365 F.2d 431, 434 (10th Cir. 1966) (A modified Allen charge was unduly coercive when judge twice asked jury to try to reach a decision within an hour.).

We believe that, like the instructions in Burroughs, the trial court’s modified Allen charge, coupled with an apparent one-hour deadline, had the effect—whether or not intended—of suggesting to the jury that the court was “anxious to conclude the lawsuit, and we think it entirely reasonable to infer that the jury was aware of [this] anxiety.” Id. The Burroughs Court observed that “verdict-urging on the part of the court tends to undermine the proper function of the common law jury system as contemplated by the Seventh Amendment. We must guard against any such subtle inroads.” Id.

The right to a jury trial in a civil action in a Maryland court is not guaranteed by the Seventh Amendment, but rather by Articles 5 and 23 of the Maryland Declaration of Rights, Even though the source of constitutional protection is different, the dangers posed by the “verdict urging” at issue in Burroughs loom equally large for us.

Conclusion

We hold that the trial court erred in giving general negligence instructions, framed in terms of the conduct of a reasonable person, in a medical malpractice case. Those concepts invite jurors to substitute their judgment for that of a neurosurgeon.

Additionally, we conclude that the court did not err in informing the jury that a mistrial would result from a failure to reach a unanimous decision and that, under the circumstances of this case, the court also did not abuse its discretion by giving a modified Allen charge. However, the court did err by giving that instruction while at the same time imposing a time limit of one hour for further deliberation. The time limit rendered the supplemental instruction unduly coercive.

Each error is prejudicial and each requires reversal.

THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY IS REVERSED AND THIS CASE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. APPELLEE TO PAY COSTS.

      . The procedure is explained in Shan-Jin Wang et al., Four-level anterior cervical discectomy and fusion for cervical spondylotic myelopathy, 24 J. of Orthopaedic Surgery 338, 339 (2016).

      . A CT myelogram is a radiographic contrast study of the spinal subarachnoid space and its contents, made using a contrast dye and computed tomography. CT and Myelogram, Stedman’s Medical Dictionary (2016).

      . Staphylococcus aureus is a common type of bacteria that can cause skin and bloodstream infections, as well as pneumonia. Unlike methicil-lin-resistant Staphylococcus aureus (MRSA), methicillin-sensitive Staphylococcus aureus (MSSA) can be treated with antibiotics. Staphylococcus aureus in Healthcare Settings, Centers for Disease Control and Prevention, https://www.cdc.gov/hai/organisms/staph.html.

      . The plaintiff’s expert witness, Gary Lustgarten, M.D., said Dr. Davis "did a great job. Technically he did everything right.”

      . The expert testified that staphylococcus aureus infections are aggressive; the bacteria double in number every two to four hours. The witness opined that, if such an infection had been present since April, when Mr. Armacost began to complain of post-surgeiy pain, it would have killed Mr. Armacost by the time it was diagnosed in August.

      . This language tracks, verbatim, that of Maryland Civil Pattern Jury Instructions 19:1 (“Definition”) and 19:3 ("Foreseeable Circumstances”).

      . This language tracks, verbatim, that of Maryland Civil Pattern Jury Instruction 27:1 ("Health Care Providers—Standard of Care”).

      . GBMC, a co-defendant at the trial level, was found liable only as Dr. Davis’s employer and did not join in this appeal. Any mention of "Defendant” or "Defendant’s Counsel” in excerpts from the trial transcript refers to Dr. Davis or his counsel.

      . At oral argument, Mr. Armacost suggested that Dr. Davis's challenge to the instruction on reasonable care (MPJI-Cv 19:1) is not preserved for appellate review. This is a debatable point—although trial counsel's objection was directed at MPJI-Cv 19:3, counsel did make it clear that any general negligence instruction was inappropriate.
      In any event, we will address both MPJI-Cv 19:1 and MPJI-Cv 19:3 because neither instruction should have been given for the same reasons and the issue is likely to recur on remand.

      . See also § 3-2A-02 of the Courts and Judicial Proceedings Article (A plaintiff in medical malpractice claim must prove that the care given by the “health care provider [was] not in accordance with the standards of practice among members of the same health care profession with similar training and experience”).

      . To be sure, jurors in a medical malpractice case are free to weigh the credibility of expert testimony. But a plaintiff cannot recover if the experts’ testimony is ignored entirely. It is from this testimony that the applicable standard of care is to be gleaned. See Puppolo v. Adventist Healthcare, Inc., 215 Md.App. 517, 534, 81 A.3d 620 (2013) (trial court properly granted summary judgment in medical malpractice case because plaintiff failed to identify an expert to establish the standard of care).

      . See MPJI-Cv 1:21 "Deadlocked Juiy Charge (Allen Charge)” (2017):

        The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.
      Do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
      It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment.
      Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous.

      . The term "Allen-type charge” means the same thing as "modified Allen charge.”

      . In Oliver v. State, 25 Md.App. 647, 334 A.2d 572 (1975), the case did involve a modified Allen charge that urged the jury to go back to deliberate for another half-hour to avoid trying the case again. The judgment in that case was reversed on other grounds (the bailiff gave legal advice to the foreman of a deadlocked jury), so whether the charge given would itself be an abuse of the trial judge’s discretion was not decided. Id. at 655, 334 A.2d 572.

      . Mr. Armacosl asserts that the judge may have intended to bring the jury back at another point to resume deliberations. But no such indication was given to the jury. Moreover, the instruction was given on a Wednesday and the court was open on the following day. It was reasonable for jurors to infer that the additional hour for deliberation granted by the judge would be the last opportunity to reach a verdict before the trial had to be repeated with another juiy,


source: Caselaw Access Project

license: Public Domain

text:
    168 A.3d 1130
    Moreen Elizabeth GILROY, et al. v. SVF RIVA ANNAPOLIS LLC, et al.
    No. 2610,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    September 1, 2017

      Argued by: Ryan P. Richie (Wilson and Parlett, on the brief), Upper Marlboro, MD, for Appellant.
    Argued by: Kristine A. Crosswhite (Crosswhite, Limbrick & Sinclair, LLP, on the brief), Baltimore, MD, for Appellee.
    Panel: Kehoe, Krauser, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ.

       Krauser, Peter B., J., now retired, participated in the hearing of this case while an active member of this Court and as its Chief Judge. After being recalled pursuant to the Constitution, Article IV, Section 3A, he participated in the decision and the preparation of this opinion.

   Kehoe, J.

Sean McLaughlin died on January 25, 2012, as a result of injuries received as he was trying to repair an HVAC unit on the roof of an Annapolis restaurant. Appellants, Moreen Elizabeth Gilroy and Mr. McLaughlin’s other survivors, filed a wrongful death action asserting claims of negligence and premises liability against SVF Riva Annapolis, LLC, the owner of the shopping center in which the restaurant was located; Rappaport Management Corporation, the center’s property management company; and CEC Entertainment, Inc., the tenant and the operator of the restaurant.

SVF Riva and Rappaport filed motions for summary judgment. CEC filed a motion for summary judgment or to dismiss. They raised several theories as to why judgment should be granted on their behalf, but the Circuit Court for Anne Arundel County entered judgment for appellees on the ground that one of Maryland’s statutes of repose, specifically, Md. Code Ann., § 5-108(a) of the Courts and Judicial Proceedings Article (“CJP”), barred appellants’ claims.

Appellants assert that the circuit court misinterpreted the statute. We believe that they are correct and will reverse the judgment and remand this case for further proceedings, which should include consideration of the other grounds raised by the appellees in their motions.

Background

At this juncture, the parties do not contest the facts. On the night of January 13, 2012, Mr. McLaughlin made a service call to repair the HVAC unit on the roof of the Chuck E Cheese restaurant at the Festival at Riva Shopping Center in Annapolis. He placed a ladder against an exterior wall and climbed up to access the malfunctioning heating unit. However, the wall at the location selected by Mr. McLaughlin was open to the ground below. When Mr. McLaughlin attempted to step from the ladder onto what he must have thought was the roof, he fell more than 20 feet to a concrete pad. He was badly injured and passed away 12 days later.

Appellants initially filed suit against the appellees in the United States District Court for the District of Maryland on January 27, 2014. On April 24, 2015, the District Court dismissed the action without prejudice for lack of subject matter jurisdiction.

Appellants then filed the present action in the Circuit Court for Anne Arundel County on May 12, 2015. SVF Riva answered the complaint and filed cross claims seeking indemnification and contribution against the other two parties. Rappa-port did the same. Both SVF Riva and Rappaport then filed separate motions for summary judgment on the basis that CJP § 5-108 barred the suit. CEC filed a motion to dismiss, which also included the statute of repose argument. Additionally, CEC asserted that the wrongful death action was untimely under Maryland’s wrongful death statute and that McLaughlin was contributorily negligent.

At the hearing on the motions for summary judgment, the court and the parties focused on the scope of the exceptions to the statute of repose that are set out in CJP § 5—108(d). Appellants argued that § 5-108(d)(2)(i), which provides an exception to the operation of the statute for defendants who were “in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred,” applied to appellees. Appellees disagreed, arguing that the owner, tenant, or party in possession exception had to be read in context with the rest of the exceptions listed in subsection (d), which pertain to asbestos-related claims. They asserted that this meant that the exception for actions against owners, tenants, or those in possession of the property was limited to asbestos-related claims and did not apply to the present action.

The trial court agreed with appellees’ interpretation of the statute. The court noted that it perceived no clear answers in the case law but it found guidance from language in Hagerstown Elderly Assocs. Ltd. Partnership v. Hagerstown Elderly Bldg. Assocs. Ltd. Partnership, 368 Md. 351, 359 n. 3, 793 A.2d 579 (2002), which indicates that the subsection (d) exceptions apply only to asbestos-related claims. (We will discuss Hagers-town later in this opinion.) The trial court concluded that:

subsection (d), while it has the language the plaintiff has pointed out, all relates to asbestos. And in this section it appears that the legislature was clearly trying to carve out ... the exception for the asbestos cases. And to read this otherwise would render the statute of repose, basically, meaningless, and there would be no statute of repose.

The circuit court did not address the other grounds presented by appellees. This timely appeal followed.

The Standard of Review

Appellate review of an order granting summary judgment is a two-step process. The first is to decide whether there were disputes of material fact before the circuit court. Koste v. Town of Oxford, 431 Md. 14, 24-25, 63 A.3d 582 (2013). If, as is true in this case at this juncture, there were no such disputes, then we decide whether the circuit court’s legal reasoning was correct. We perform this review de novo. Id. at 25, 63 A.3d 582. Whether the circuit court’s interpretation of a statute is correct is a question of law that we also review de novo. See Beall v. Holloway-Johnson, 446 Md. 48, 76, 130 A.3d 406 (2016).

The Court of Appeals recently summarized the applicable principles of statutory construction:

This Court provides judicial deference to the policy decisions enacted into law by the General Assembly. We assume that the legislature’s intent is expressed in the statutory language and thus our statutory interpretation focuses primarily on the language of the statute to determine the purpose and intent of the General Assembly.
We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory. If the language of the statute is clear and unambiguous, we need not look beyond the statute’s provisions and our analysis ends. Occasionally we see fit to examine extrinsic sources of legislative intent merely as a check of our reading of a statute’s plain language. In such instances, we may find useful the context of a statute, the overall statutory scheme, and archival legislative history of relevant enactments.

Phillips v. State, 451 Md. 180, 196-97, 152 A.3d 712 (2017) (quoting Douglas v. State, 423 Md. 156, 178, 31 A.3d 250 (2011)).

As we will explain, we do not agree with the circuit court’s interpretation of the statute. Admittedly, CJP § 5-108(d) has a number of moving parts and its proper construction is made more difficult by the decidedly unhelpful captions added by the Code’s two commercial publishers. However, the exception to the statute for actions brought against parties who were in possession and control of the premises at the time the injury or accident occurred has been part of the statute since it was first enacted in 1970. In the ensuing 47 years, the statute has been amended on several occasions. For our purposes, the critical amendment was enacted in 1991. There is nothing in the legislative history of the 1991 amendment that suggests that the General Assembly intended to eliminate the existing exception—rather, the legislative intent was to add three additional, narrowly-crafted, exceptions to the statute to address certain asbestos related claims.

The captions for subsection (d) that appear in the versions of the Code published by LexisNexis and West Publishing do not affect the analysis because captions and catchlines are not part of the law itself and should not be considered when construing the statute. We recognize that our conclusion is inconsistent with dicta in the Hagerstown Elderly Associates opinion. However, the Court of Appeals more thoroughly addressed the scope of subsection (d) in Rose v. Fox Pool Corp., 335 Md. 351, 360, 643 A.2d 906 (1994), and our result is consistent with the analysis in that decision.

Analysis

1. Defining the Problem: Is “Or” Used Conjunctively or Disjunctively in the Statute?

Statutes of repose are designed to establish “an absolute bar to an action or to provide a grant of immunity to a class of potential defendants after a given time period.” Anderson v. United States, 427 Md. 99, 118, 46 A.3d 426 (2012). Section 5-108 addresses certain claims arising out of improvements to real property. It states (emphasis added):

(a) Except as provided by this section, no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use.
(b) Except as provided by this section, a cause of action for damages does not accrue and a person may not seek contribution or indemnity from any architect, professional engineer, or contractor for damages incurred when wrongful death, personal injury, or injury to real or personal property, resulting from the defective and unsafe condition of an improvement to real property, occurs more than 10 years after the date the entire improvement first became available for its intended use.
(c) Upon accrual of a cause of action referred to in subsections (a) and (b) of this section, an action shall be filed within 3 years.
(d)(1) In this subsection, “supplier" means any individual or entity whose principal business is the supply, distribution, installation, sale, or resale of any product that causes asbestos-related disease.
(2) This section does not apply if:
(i) The defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred;
(ii) In a cause of action against a manufacturer or supplier for damages for personal injury or death caused by asbestos or a product that contains asbestos, the injury or death results from exposure to asbestos dust or fibers which are shed or emitted prior to or in the course of the affixation, application, or installation of the asbestos or the product that contains asbestos to an improvement to real property;
(iii) In other causes of action for damages for personal injury or death caused by asbestos or a product that contains asbestos, the defendant is a manufacturer of a product that contains asbestos; or
(iv) In a cause of action for damages for injury to real property that results from a defective and unsafe condition of an improvement to real property:
1. The defendant is a manufacturer of a product that contains asbestos;
2. The damages to an improvement to real property-are caused by asbestos or a product that contains asbestos;
3. The improvement first became available for its intended use after July 1,1953;
4. The improvement:
A. Is owned by a governmental entity and used for a public purpose; or
B. Is a public or private institution of elementary, secondary, or higher education; and
5. The complaint is filed by July 1,1993.
(e) A cause of action for an injury described in this section accrues when the injury or damage occurs.

On its face, subsection (d) appears to set out four exceptions to the statute. Three of them, CJP § 5-108(d)(2)(ii)-(iv), apply to claims against manufacturers or suppliers of products containing asbestos. However, CJP § 5-108(d)(2)(i) provides an exclusion for a defendant “in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred” and makes no mention of asbestos. The four exceptions are linked by the conjunction “or.” “Or” generally has a disjunctive meaning, that is, the word is used to indicate “an alternative between unlike things, states or actions[.]” Webster’s Third New International Dictionary Unabridged 1585 (1986); see also The American Heritage Dictionary of the English Language 1236 (4th ed. 2006) (defining “or” as a conjunctive “used to indicate an alternative .... ”). Maryland courts generally interpret “or” in the disjunctive sense when they construe statutes.

However, this rule is not absolute. Maryland courts sometimes give a conjunctive, rather than a disjunctive meaning to “or,” when “the context reasonably supports the inference that such a construction is necessary to effectuate the intent of the Legislature.” David N. v. St. Mary’s County. Dep’t of Soc. Services, 198 Md.App. 173, 197, 16 A.3d 991 (2011) (quoting Reier v. State Department of Assessments and Taxation, 397 Md. 2, 32, 915 A.2d 970 (2007)). The trial court’s analysis was necessarily based on the implicit assumption that the “or” in subsection (d) is to be interpreted in the conjunctive sense.

Whether a court should interpret “or” as a conjunctive in a specific case depends upon legislative intent, which can be identified through legislative history as well as a consideration of the substantive provisions of the statute. In the present case, either path leads to the same destination. Interpreting the “or” in § 5—108(d) as conjunctive is inconsistent with the statute’s legislative history and also yields illogical results.

The Legislative History

The Initial Version of the Statute: Article 57, § 20

What is now CJP § 5-108 was first enacted by the General Assembly in 1970 as Article 57, § 20. Ch. 666, Laws of Md. 1970. The statute as originally enacted stated (emphasis added):

No action to recover damages for injury to property real or personal, or for bodily injury or wrongful death, arising out of an improvement to real property, nor any action for contribution or indemnity for damages incurred as a result of said injury or death, shall be brought more than twenty years after the said improvement was substantially completed. This limitation shall not apply to any action brought against the person who, at the time the injury was sustained, was in actual possession and control as owner, tenant, or otherwise of the said improvement. For purposes of this section, “substantially completed” shall mean when the entire improvement is first available for its intended use.

In Whiting-Turner Contracting Co. v. Coupard, 304 Md. 340, 499 A.2d 178 (1985), the Court described the purpose of that law and similar statutes:

They are a response to the problems arising from the expansion of liability based on the defective and unsafe condition of an improvement to real property. Liability has expanded from the standpoint of potential claimants due to a decline in the availability of defenses based on the absence of privity of contract. ... In addition, the time following completion within which a damage action might properly be brought had been expanded ... by determining the time of accrual of a cause of action under the general statute of limitations by using the discovery rule where claims arose out of the construction of improvements to real property. One purpose of the Act is to restrict the operation of the discovery rule. A related purpose of the Act is to limit the time after Completion during which a person may seek contribution or indemnity.

Id. at 349, 499 A.2d 178 (citations omitted); see also Anderson v. United States, 427 Md. at 118, 46 A.3d 426 (“The label of statute of repose is used generally to describe a statute which shelters legislatively-designated groups from an action after a certain period of time.” (Citations omitted)).

The 1973 Recodification

When the Courts and Judicial Proceedings Article was enacted in 1973, the former Article 57, § 20 was recodified as CJP § 5-108. It retained the owner, tenant, or party in control exception, which was broken out into its own subsection (emphasis added):

(a) Except as provided by this section, no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use.
(b) This section does not apply if the defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred.
(c) A cause of action for an injury described in this section accrues when the injury or damage occurs.

While subsections (a) and (b) closely mirrored former Article 57, § 20, subsection (c) was a new addition. The revisor’s note states that it was “drafted so as to avoid affecting the period within which a wrongful death action may be brought.” Chapter 2, First Special Session, Laws of Maryland 1973 at 211.

1979 and 1980: The Statute Is Amended to Further Protect Architects, Engineers, and Contractors

Amendments in 1979 and 1980 reduced the time period before which the statute became effective for architects, engineers, and contractors. 1979 Laws of Md., Ch. 698 (architects and engineers); 1980 Laws of Md., Ch. 605 (contractors); Whiting-Turner Contracting Co. v. Coupard, 304 Md. 340, 347, 499 A.2d 178 (1985) (summarizing the statutory history); Rose v. Fox Pool Corp., 335 Md. 351, 366-367, 643 A.2d 906 (setting out the statute’s history). These amendments added what is now subsection (b) to establish a 10 year statute of repose for members of those professions. Neither amendment altered the substance of the exception for claims against for owners, tenants, or those in possession and control of the property.

The statute then read (emphasis added):

(a) Except as provided by this section, no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use.
(b) A cause of action for damages does not accrue and a person may not seek contribution or indemnity from any architect, professional engineer, or contractor for damages incurred when wrongful death, personal injury, or injury to real or personal property, resulting from the defective and unsafe condition of an improvement to real property, occurs more than 10 years after the date the entire improvement first became available for its intended use.
(c) Upon accrual of a cause of action referred to in subsections (a) and (b), an action shall be filed within 3 years.
(d) This section does not apply if the defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred.
(e) A cause of action for an injury described in this section accrues when the injury or damage occurs.

The Asbestos Amendments of 1991 (ch. 271 of the laws of 1991)

The language at issue in this case was added in 1991, when the General Assembly passed, and Governor Schaefer signed into law, Senate Bill 335, which became Chapter 271 of the Laws of 1991.

The legislative history of SB 335 is described in detail in Judge Irma S. Raker’s opinion for the Court in Rose v. Fox Pool, 335 Md. at 367-71, 643 A.2d 906, and there is little to be gained by our attempting to elaborate on the Court’s analysis. For our purposes, it is sufficient to state that the 1991 legislation was enacted in response to a series of court decisions concluding that CJP § 5-108, and similar statutes of repose in other states, barred claims against manufacturers of building products containing asbestos. Rose, 335 Md. at 367-68, 643 A.2d 906.

The first attempt at addressing this problem came during the 1990 Session with the passage of SB 500. This bill was vetoed by Governor William Donald Schaefer.

The General Assembly returned to the question of exceptions for asbestos-related claims during the following session with two administration bills, SB 335 and HB 496. The purpose of these bills was to “clarif[y] that a manufacturer or supplier of articles containing asbestos or other material which is reasonably dangerous that is part of an improvement to real property is not exempt from liability for damages or injury under certain conditions.” Fiscal Note for SB 335 (1991) (available at the Department of Legislative Reference, Bill File for SB 335). The Senate bill was passed and signed into law, resulting in the current version of CJP § 5—108(d) (emphasis added):

(d)(1) In this subsection, “supplier” means any individual or entity whose principal business is the supply, distribution, installation, sale, or resale of any product that causes asbestos-related disease.
(2) This section does not apply if:
(i) The defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred;
(ii) In a cause of action against a manufacturer or supplier for damages for personal injury or death caused by asbestos or a product that contains asbestos, the injury or death results from exposure to asbestos dust or fibers which are shed or emitted prior to or in the course of the affixation, application, or installation of the asbestos or the product that contains asbestos to an improvement to real property;
(iii) In other causes of action for damages for personal injury or death caused by asbestos or a product that contains asbestos, the defendant is a manufacturer of a product that contains asbestos; or
(iv) In a cause of action for damages for injury to real property that results from a defective and unsafe condition of an improvement to real property:
1. The defendant is a manufacturer of a product that contains asbestos;
2. The damages to an improvement to real property are caused by asbestos or a product that contains asbestos;
3. The improvement first became available for its intended use after July 1,1953;
4. The improvement:
A. Is owned by a governmental entity and used for a public purpose; or
B. Is a public or private institution of elementary, secondary, or higher education; and
5. The complaint is filed by July 1,1993.

As noted earlier, this case hinges on the meaning of “or” in subsection (d)(2).

If “or” is used in the disjunctive, then the 1991 amendments added three additional exceptions to the pre-existing exception for actions against persons in possession or control of the property:

(1) actions against manufacturers and suppliers for death or personal injury caused by exposure to asbestos dust or fibers during construction or installation (subsection (d)(ii));

(2) actions against manufacturers, but not suppliers, for deaths and injuries caused by exposure to asbestos in contexts other than construction or installation (subsection (d)(iii)); and

(3) actions by school and public entities against manufacturers, but not suppliers, for damage to property caused by asbestos and asbestos products (subsection (d)(iv)).

If the “or” is conjunctive, then (d)(2)(i), (ii), (iii), and (iv) must be read together to constitute but a single exception that is indeed limited to cases involving asbestos.

On its face, CJP § 5-108(d) sets out four distinct exceptions, one for actions against the owners, tenants, and parties in possession of the property; and the remaining three for claims against asbestos manufacturers or suppliers. There is nothing in the plain text of the statute that suggests that the General Assembly intended what appear to be four exceptions to be treated as but one exception.

The legislative history for the 1991 law supports this conclusion. It is true that the history does not explicitly address the exception for claims against persons in possession or control of the premises. However, it is clear that the 1991 amendments were intended to add exceptions that operated independently of one another, as opposed to a single multi-part exception applicable to all claims, whether asbestos-related or not, which would be the result of reading “or” in the conjunctive sense.

For example, the Floor Report for SB 335 notes that the bill “excludes certain manufacturers and suppliers of asbestos products from the protection of the ‘statute of repose’ ” before listing the three newly drafted conditions under which the statute of repose does not apply. Senate Judiciary Proceedings Committee Floor Report on SB 335, at 1 (1991). The Floor Report’s asbestos-centric description of the bill and silence on the pre-existing exception for an owner, tenant, or party in possession of the property suggests that the asbestos amendments operate separately.

David Iannucci, then serving as Chief Legislative Officer of the Office of the Governor, testified about the bills before the Senate Judicial Proceedings Committee and the House Judiciary Committee. In his testimony, he described the asbestos provisions as dividing the claims into two categories (emphasis in original):

The bill divides the issue into two categories: personal injury and property damage.
Personal injury. The bill would preserve the right to sue for individuals suffering personal injury from exposure to asbestos before an improvement to real property was completed (e.g. the construction phase). This includes the right to sue suppliers, as well as manufacturers, (subsection (d)(2)[ii])
The bill would waive the protection of the Statute of Repose for manufacturers of products that contain asbestos, allowing all other individuals to sue for damages for personal injury caused by asbestos. This would allow the remaining 5% of personal injury eases to go forward, (subsection (d)[ (2)(iii) ])
Property damages. The bill would allow recovery for property damages against manufacturers of products that contain asbestos under specific circumstances... (subsection (d)[ (2)(iv) ])

Testimony of David Iannucci on SB 335 and HB 496, before the Senate Judicial Proceedings Committee and the House Judiciary Committee (available at the Department of Legislative Reference, Bill File for SB 335 (underlining in original). In other words, the asbestos provisions in subsection (d)(2)(ii) through (d)(2)(iv) address different types of suits and therefore necessarily operate independently of one other. Mr. Ian-nucci’s discussion of the 1991 amendments was limited to the asbestos-related additions and did not address the owner, tenant, or party in possession exception, underscoring that the 1991 amendments were not intended to impact that exception at all.

The plain language of CJP § 5-108 and its legislative history indicate that each of the exceptions listed in subsection (d)(2) operate independently of one another, with the owner, tenant, or party in possession exception not limited to asbestos-related cases. We see no evidence that the 1991 amendments were intended to alter the already-existing exception for owners, tenants, or others in possession of a property, let alone to limit the scope of that long-standing exception to apply only in asbestos-related cases.

3. The Interpretive Consequences

Having considered the statute’s text and reviewed its legislative history to discern the General Assembly’s purpose, we turn to the consequences of the competing approaches advanced by the parties. As we wrote in Town of Oxford v. Koste, 204 Md.App. 578, 586, 42 A.3d 637 (2012), aff'd, 431 Md. 14, 63 A.3d 582 (2013), “[a]n examination of interpretive consequences, either as a comparison of the results of each proffered construction, or as a principle of avoidance of an absurd or unreasonable reading, grounds the court’s interpretation in reality.” (Citations omitted).

In our view, treating “or” as having a conjunctive meaning in subsection (d) would yield unreasonable results. Were we to apply the conjunctive meaning throughout subsection (d), the subsection would be, literally, meaningless: the subsection would allow for an exception only for actions against manufacturers (and perhaps suppliers) of asbestos products who also happen to be the owners, tenants or other parties in control of the premises where the injury occurred but also only if the premises was a school or government-owned property, and if the complaint was filed prior to 1993.

Even if we apply the owner or tenant requirement separately to each of the asbestos scenarios, the outcomes scarcely improve. It seems unreasonable to limit a suit against an asbestos manufacturer or supplier for claims arising out of installation to situations where the defendant manufacturer or supplier was in possession and control of the property when the injury occurred, as manufactures and suppliers of asbestos products are rarely in control of the property where their products are installed. Similarly, allowing a cause of action by government entities and schools for property damage to be brought against only manufacturers who were owners or tenants in possession and control of the premises when the injury occurred makes even less sense. These interpretations would limit the exception in such a way as to render it meaningless.

We reject the notion that, in adopting legislation in 1991 that purported to add additional exceptions to the statute of repose, the General Assembly actually intended to limit the exceptions in such a fashion.

4. The Non-Significance of Captions and Headings

The task of interpreting CJP § 5-108 is not made easier by the captions and headings added to the text of the statute by the West Publishing and LexisNexis in their respective editions of the Maryland Code.

The caption for § 5-108(d) added by West Publishing is “Personal injury or death caused by asbestos.” The Lexis-Nexis caption reads: “ ‘Supplier’ defined.” Neither of these phrases is part of the law and neither should be considered in interpreting the statute.

Section 1-208 of the General Provisions Article (“GP”) of the Maryland Code states:

Unless otherwise provided by law, the caption or catchline of a section or subsection that is printed in bold type, italics, or otherwise:
(1) is intended as a mere catchword to indicate the contents of the section or subsection; and
(2)(i) may not be considered as a title of the section or subsection; and
(ii) may not be considered as a title if the section, subsection, caption, or catchline is amended or reenacted.

There is no shortage of opinions by this Court and the Court of Appeals applying GP § 1-208. See, e.g., Mayor and City Council of Baltimore v. Hooper, 312 Md. 378, 388, 539 A.2d 1130 (1988) (“It seems that Hooper was misled because in the code § 15-607 is headlined, ‘Waiver of Sovereign Immunity.’ But this phrase does not appear in SB 24 or in ch. 489, Acts 1982. It was not a part of the legislative enactment.”); State v. Holton, 193 Md.App. 322, 364-65, 997 A.2d 828 (2010), aff'd, 420 Md. 530, 24 A.3d 678 (2011) (“The parties have seized upon that caption as limiting the scope of the statute itself, which we find to be inappropriate and inadmissible. In determining the meaning of a statute, we look to the words of the statute itself, not a caption.”).

When headings for individual subsections are added publishing companies as editorial features, as is the case here, they are likewise not part of the statute and should have no effect on its interpretation.,

5. Relevant cases from the Court of Appeals: Rose and Hagerstown Elderly

Finally, there is some inconsistent dicta regarding the scope of the subsection (d) exceptions.

In Rose v. Fox Pool Corp., 335 Md. 351, 355-56, 643 A.2d 906 (1994), a swimmer who was injured diving into a pool sued the manufacturer, arguing that his injury was caused by the pool’s defective design and generally unsafe condition. The manufacturer prevailed on its motion for summary judgment on the basis that Rose’s claims were barred by CJP § 5-108 because the pool had been installed and in use for over 20 years when the injury occurred. In affirming the judgment, the Court of Appeals undertook an exhaustive analysis of the language, history, and meaning of CJP § 5-108. The Court’s focus was on the issue of whether a products manufacturer was covered under the statute. In its analysis, however, the Court drew a distinction between subsection (d)(2)(i) and (d)(2)(ii)-(iv). As to the first, the Court stated that it applied to defendants in possession and control of the property, while subsection (d)(2)(ii)-(iv) all applied to manufacturers and suppliers of asbestos. Id. at 360, 643 A.2d 906. Later in the opinion, after its discussion of the 1991 asbestos amendments, the Court wrote that “the exclusion of asbestos manufacturers and suppliers appeared in § 5—108(d) as subsections (d)(2)(ii), (iii) and (iv).” Id. at 370, 643 A.2d 906. In other words, the Rose Court viewed the asbestos-related restrictions as limited to subsection (d)(2)(ii)-(iv) rather than applying to (d) as a whole. Appellants suggest that the Rose Court’s analysis supports their contentions to us.

In a more recent case, Hagerstown Elderly Assocs. Ltd. Partnership v. Hagerstown Elderly Bldg. Assocs. Ltd. Partnership, 368 Md. 351, 793 A.2d 579 (2002), the Court considered CJP § 5-108 in the context of a breach of contract action by the owner of a public housing facility against a contractor who installed an exterior wall that failed during a storm, as well as the statute’s application to a claim against the contractor’s surety. The Court’s analysis of CJP § 5-108 focused on subsection (b) of the statute, which addresses when liability terminates for contractors. Id. at 358-63, 793 A.2d 579. In a footnote, however, the Court stated that subsection (d) “provides an exception to [the operation of the statute] for actions based on injuries arising from exposure to asbestos products. That exception does not apply in this case.” Id. at 358 n.3, 793 A.2d 579. Appellees point to this footnote to support their interpretation of subsection (d).

In State v. Baby, Judge Raker’s concurring and dissenting opinion considered the distinctions between considered or judicial dicta and ordinary dicta:

Judicial dictum is generally defined as ‘an opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision.’ Statements of judicial dicta are technically ‘dicta’ because they are not necessary to the holding of a case. They do not, however, implicate to the same degree as ordinary dicta the concern of ‘full consideration,’ which is one of the rationales for treating dicta and holdings differently. Unlike ordinary dicta, judicial dicta is, by definition, well-reasoned and stated only after the court has investigated an issue with care. Accordingly, courts afford judicial dicta greater deference than ordinary dicta, treating judicial dicta almost like holdings.

404 Md. 220, 278-79, 946 A.2d 463 (2008) (quoting David Coale & Wendy Coture, Loud Rules, 34 Pepp. L. Rev. 715, 727-28 (2007)).

The issue in Hagerstown Elderly was how CJP § 5-108 applied to breach of contract actions against contractors as well as claims against a surety. The Court’s discussion of subsection (d)’s scope was extraneous to the Court’s analysis and was not based upon the sort of meticulous examination of the statutory history that the Court undertook in Rose. We acknowledge that the situation is an unusual one, but in our view, the Court’s analysis in Rose carries greater weight than does the footnote in Hagerstown Elderly. Rose guides our analysis in this case.

Conclusion

We hold that CJP § 5-108(d)(2) sets out four independent exemptions to the statute of repose, the first of which is for owners, tenants, or parties otherwise in control of the property where the injury occurred. The pleadings provide a basis to find that one or all of the appellees may fall within that exemption. We will reverse the judgment of the circuit court.

At the circuit court level, CEC raised two issues in addition to its statute of repose argument. The first was appellants’ claim is barred by contributory negligence. The second was that the claim was time barred by Maryland’s Wrongful Death Act, CJP § 3-904. Subsection (g)(1) of the statute requires most claims under the act to be “filed within three years of the death of the injured person” but by the time appellants filed their suit in the Circuit Court for Anne Arundel County after the federal court dismissed it, more than three years had passed since McLaughlin’s death.

We decline to address these issues at this time. This is because “ ‘[o]n appeal from an order entering summary judgment, we review only the grounds upon which the trial court relied in granting summary judgment.’” Springer v. Erie Ins. Exch., 439 Md. 142, 156, 94 A.3d 75 (2014) (quoting River Walk Apartments, LLC v. Twigg, 396 Md. 527, 541-42, 914 A.2d 770 (2007)) (internal citations and quotation marks omitted).

Upon remand, the trial court should rule on the contentions raised by CEC,

THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY IS REVERSED AND THIS CASE IS REMANDED TO IT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. AP-PELLEES TO PAY COSTS.

      . See, e.g., Burnett v. Spencer, 230 Md.App. 24, 33, 146 A.3d 560 (2016) ("Rule 2-631 states that '[j]udgments may be enforced only as authorized by these rules or by statute.’ (Emphasis added.) Because the rule employs the disjunctive term ‘or,’ it is obvious, as a matter of logic and grammar, that a person may enforce a judgment by a method that is authorized by the rules alone: the method need not also be expressly authorized by statute,”); In re Adoption of K’Amora K., 218 Md.App. 287, 304, 97 A.3d 169 (2014) (“[T]he disjunctive wording in [Family Law Article] § 5-323(b) ... authorizes the court to terminate a parent's rights even absent a specific finding that a parent is unfit to care for her child” so long as exceptional circumstances are present.); Mills v. Godlove, 200 Md.App. 213, 226, 26 A.3d 1034 (2011) ("[W]here the terms undue hardship or practical difficulty ‘are framed in the disjunctive ("or”), Maryland courts generally have applied ... the less restrictive practical difficulties standard to area variances because use variances are viewed as more drastic departures from zoning requirements.’ ” (Citations omitted)); Severstal Sparrows Point, LLC v. Pub. Serv. Comm’n of Maryland, 194 Md.App. 601, 624-25, 5 A.3d 713 (2010) (Public Utilities Article "Section 7-505(b)(8) is phrased in the disjunctive. Thus, it must be read to mean that either Title 4 or, ‘as applicable,’ Section 7-510(c)(4) governs the ‘terms, conditions, and rates' for SOS.”).

      . See also Comptroller v. Fairchild Indus., Inc., 303 Md. 280, 286, 493 A.2d 341 (1985) (Courts construe the word "and” to mean "or” as required by context in order to comply with the clear legislative intent.); Little Store, Inc. v. State, 295 Md. 158, 163, 453 A.2d 1215 (1983) (“It is well settled that the terms ‘and’ and ‘or’ may be used interchangeably when it is reasonable and logical to do so.”).

      . Governor Schaefer's concerns focused on language in SB 500 that stated that it was intended to clarify the intent of the General Assembly when it enacted the original version of the statute of repose in 1970. Governor Schaefer’s veto message stated that “our analysis leads us to the conclusion that this bill is not a clarification of the law, but is in fact a major, substantive revision of the Statute of Repose. That fact must not be lost.” Letter from Gov. William Donald Schaefer to Thomas V. Mike Miller, Jr., President of the Senate (May 25, 1990). He was also concerned about uncertainty the bill would create: "Senate Bill 500 does not draw a sharp line, but rather would result in inconsistent, indefinite, and difficult to interpret exposure to litigation for many who previously were protected by the statute. This retroactive application of the bill strikes me as particularly unfair." Id,

      In the same letter, Governor Schaefer promised to work with interested parties to develop "compromise legislation.” Id. This compromise legislation was SB 335 and the identical HB 496 of the 1991 Session, which enacted the amendments to CJP § 5-108 that concern us in this appeal.

      . As additional support for their statutory interpretation contentions, appellees point to Mitchell v. WSG Bay Hills IV, LLC, 2013 WL 6502875, at *2 n. 3 (D, Md. Dec. 11, 2013), in which the District Court noted the bold faced heading "Personal injury or death caused by asbestos” impacted its interpretation of the subsection (d) exceptions. This contention is unpersuasive for two reasons. Initially, Mitchell is an unreported decision and this Court does not afford persuasive weight to such opinions "even when the jurisdiction in which the unreported opinion was decided permits the citation of unreported opinions." Oliveira v. Sugarman, 226 Md.App. 524, 553, 130 A.3d 1085, aff’d, 451 Md. 208, 152 A.3d 728 (2017) (citing Kendall v. Howard County, 204 Md.App. 440, 445 n. 1, 41 A.3d 727, aff'd, 431 Md. 590, 66 A.3d 684 (2013). Additionally, and more to the point, the District Court’s analysis is not consistent with the settled Maryland decisional and statutory law summarized in the main text of this opinion.

      . Finally, appellees point to the organization of subsection (d) and emphasize that it begins by defining a “supplier” as an entity selling, distributing, or otherwise involved with supplying products containing asbestos. Appellees argue that the fact that the definition of "supplier” is located before any of the exceptions means that all of the exceptions refer to asbestos-related claims. This argument is unpersuasive for two reasons.
      First, the term "supplier” does not appear in subsection (d)(2)(i), that is, the owner, tenant, or party in possession exception that is the focus of our concern. Second, appellees place too much weight on the way that subsection (d) is organized. That the definition appears first is consistent with the way that Maryland statutes are written and have been written for decades. See Dept, of Legislative Services, Maryland Style Manual for Statutory Law, 29 (2008) (directing a legislative drafter to ”[p]lace a definition at the beginning of the smallest statutory unit, e.g., section or subtitle, to which the definition applies.”); Dept, of Legislative Services, Maryland Style Manual for Statutory Law, 35 (1985) (same).