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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND KRISTEN TURNER, Plaintiff : : : v. : : ADALTIS U.S.A., INC., and JAMES : STEWART, : Defendants : ...o0o... ORDER Plaintiff, Kristen Turner, after suffering an on-the-job injury in a hospital laboratory, instituted this personal injury action in the Circuit Court for Baltimore City against defendants, Adaltis U.S.A., Inc., Maryland General Hospital, Inc. ("Maryland General"), and James Stewart. Defendants timely removed the case to this court on the basis of diversity of citizenship. The claim against Maryland General has been dismissed.* Now pending is the
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CIV. NO. AMD 04-1227

The sole claim asserted in the complaint against Maryland General, which had provided workers' compensation benefits to plaintiff, was intentional infliction of emotional distress. Under Maryland law, to prevail on a claim for intentional infliction of emotional distress, a plaintiff must allege and prove: (1) the defendant's conduct was intentional or reckless; (2) that the conduct was extreme and outrageous; (3) there was a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress was severe. Harris v. Jones, 281 Md. 560, 556, 380 A.2d 611, 614 (1977); Demby v. Preston Trucking Co., 961 F. Supp. 873, 882 (D.Md.1997). The Maryland Court of Appeals has emphasized that the tort of intentional infliction of emotional distress is to be used sparingly and only for opprobrious behavior that includes truly outrageous conduct. Batson v. Shiflett, 325 Md. 684, 733-35, 602 A.2d 1191, 1216-17 (1992). Liability for this tort has been found "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Kentucky Fried Chicken Nat'l Mgt. Co. v. Weathersby, 326 Md. 663, 670, 607 A.2d 8, 11 (1992). The allegations of the complaint in this case demonstrate, at most, and as a matter of law, negligent (and perhaps, taken as true, grossly negligent) conduct by defendants Maryland (continued...)

motion for summary judgment filed by defendant Stewart, who asserts that he is immune from liability by virtue of plaintiff's successful prosecution of a workers' compensation claim against Maryland General. The parties have helpfully entered into an agreed statement of facts, which is attached as an exhibit to this Order and will not be repeated here. Furthermore, the parties agree that Maryland law applies here. On the facts as agreed, I am satisfied that, as a matter of law, plaintiff was a "borrowed servant" of Stewart's company, Health Systems, Inc. ("HSI"), which had a contract to manage the Maryland General laboratory, and that HSI (which has not been sued here) and Stewart are protected by immunity under Maryland's workers' compensation scheme. See Whitehead v. Safway Steel Products, Inc., 304 Md. 67, 77-78, 497 A.2d 803, 808-09 (1985). In particular, as in Whitehead, HSI had the ability to control in its entirety the work performance of plaintiff, and, indeed, had the power to hire and fire plaintiff (and other workers in the hospital laboratory). So viewed, it is clear that either HSI or Maryland General would have been liable to provide workers' compensation benefits to
(...continued) General and Stewart, but nothing approaching the sort of intentional or reckless extreme and outrageous conduct which is needed to support a claim under Maryland law for intentional infliction of emotional distress. Accordingly, even though Stewart did not move to dismiss that count of the complaint, and even though Maryland General largely limited its arguments in support of dismissal to the issue of workers' compensation immunity and election of remedies, I concluded that plaintiff had not alleged, and could not allege, a cognizable claim for intentional infliction of emotional distress based on the underlying facts of her claims. Consequently, in dismissing Maryland General, an in-state defendant, I determined that Maryland General had been joined in contravention of the "fraudulent joinder" doctrine. Accordingly, I denied plaintiff's motion for remand. By virtue of the instant Order, the sole remaining defendant is Adaltis U.S.A., Inc., the manufacturer of the laboratory equipment whose malfunction allegedly exposed plaintiff to the HIV virus in the hospital laboratory. -2*

plaintiff. Plaintiff has sought and received such benefits from Maryland General. She may not also seek tort damages against her "special employer," HSI, or a fellow-servant also employed by HSI, i.e., Stewart. See id. Accordingly, it is this 4th day of April, 2005, by the United States District Court for the District of Maryland, ORDERED That the motion for summary judgment is GRANTED and JUDGMENT IS ENTERED IN FAVOR OF DEFENDANT JAMES STEWART AGAINST PLAINTIFF.

/s/ ANDRE M. DAVIS UNITED STATES DISTRICT JUDGE

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