“‘rise to the level of the irrational or the wholly incredible.’” J.J. Duane, The Four Greatest Myths About Summary Judg- ment, 52 Wash. & Lee L. Rev. 1523, 1581-82 (1995). Applying this test to Hall’s affidavit testimony requires that the summary judgment entered against her be reversed, because, without seeing or hear- ing Hall and without the benefit of forming a firsthand impression as to her degree of intelligence, a court cannot con- clude that a rational jury necessarily would reject as incredible the facts stated in her affidavit. Moreover, unlike Fed. R. Civ. P. 30 (e), which permits a deponent to make sub- stantive corrections to a deposition by signing a statement that gives the reason for the change, Maryland Rule 2-415 (d) limits corrections to those necessary to conform the transcript to the testimony. Thus, the Maryland Rules contemplate that any substantive change in deposition testimony will be made for the first time at trial, where the deponent can be cross examined concerning the inconsistency. A trial court is not authorized, on the adversary’s motion, to strike trial testi- mony that is inconsistent with deposition testimony, or to grant a motion for judg- ment on this basis. See Brooks v. Daley, 242 Md. 185, 218 A.2d 184 (1966). In- stead, Maryland’s credibility rule deems such an inconsistency to be a matter for the trier of fact. Adopting the sham affi- davit rule would shift the credibility determination from the trier of fact a trial, who is able to observe demeanor, to the trial judge, who is limited to a paper record, and would required a change in the Maryland Rules whereby a deponent who has a genuine change of recollection could place that change on record prior to summary judgment. There are other ways of dealing with an affidavit that the trial court is clearly convinced to be a sham, such as sanctions under Rule 1-341 and referral to the prosecutor for perjury charges.
Terran Pittman, a Minor, etc. et al. v. At- lantic Realty Co. et al, No. 103, September Term, 1999, filed July 12, 2000. Opinion by Rodowsky, J.
________
Civil Procedure – Pleading Damages – The requirements of Rule 2- 303 that a pleading shall contain only such state- ments of fact as may be necessary to show the pleader’s entitlement to relief…”Obviates the necessity that a plaintiff alleging an International tort specialty plead actual damages because,
Fall 2000 Trial Reporter 43
upon failure of proof of actual damages, plaintiff would nonetheless be entitled to nominal damages.
Plaintiff failed to articulate the nature of the harm and loss that she suffered, merely stating that the harm she suffered flowed from the specific alleged tort of battery and false imprisonment is suffi- cient, nominal damages are recoverable.
Lakesha Johnson, a minor, etc. v. Valu Food, Inc., No. 1750, September Term, 1999, de- cided May 2, 2000. Opinion by Davis, J.
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Civil Procedure – Final Judgments – Transfer of Venue – A Trial Court’s or- der transferring a civil case from one Circuit Court to another Circuit Court is a final judgment and thus immediately appealable.
Brewster v. Woodhaven Building & Devel- opment, No. 82, September Term, 1999, decided August 22, 2000. Opinion by Raker, J.
Employment
Employment – Abusive Discharge – Ac- tion for abusive discharge may lie when at-will employee discharged for refusing to engage in sexual conduct that would violate state laws against prostitution, even though the discharge might also be unlawful under federal and state employ- ment discrimination laws.
Insignia Residential Corporation v. Ruejahyln Ashton, No. 151. September Term, 1999, decided July 21, 2000. Opin- ion by Wilner, J.
Insurance
Insurance – Coverage – Accidental Death – Intentional Conduct
Facts: On 17 September 1994, Sharyn and William Cole drove in their van to the home of William Cave. The purpose of the trip was to pick up Catherine Cole, Mr. Cole’s daughter from a previous mar- riage to Mr. Cave’s daughter.
After the
Coles pulled into Mr. Cave’s driveway, Mr. Cole exited the van and approached the house. When Mr. Cole was a few steps away from the van, he encountered Mr. Cave who produced a handgun and shot him. Mr. Cave then fired two shots at Ms. Cole in the van from close range through the passenger’s window. Mr. Cave then shot and killed himself. Mr. Cole survived the attack, but Ms. Cole died from her gunshot injuries. At the time of the shooting, State Farm
Mutual Automobile Insurance Company insured the Coles’ van. Under the acci- dental death provision of the policy, State Farm agreed to pay $10,000 to Ms. Cole if her death was “caused by accident.” On 13 January 1997, Mr. Cole, acting as the personal representative for his wife’s es-
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