                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 08-1397


MABEL S. JONES, individually and as the next best friend and
personal representative of the estate of Prince Carmen
Jones, Jr.,

                Plaintiff - Appellant,

          and

CANDACE JACKSON,

                Intervenor – Plaintiff,

          v.

PRINCE GEORGE’S COUNTY, MARYLAND; CARLTON B. JONES, Officer,
Prince George’s County Police Department in both his
official and individual capacities,

                Defendants – Appellees,

          and

ALEXANDRE BAILEY; JOHN S. FARRELL,

                Defendants,

          v.

INOVA HEALTH SYSTEM FOUNDATION; ROBERT F. HORAN; J. THOMAS
MANGER; PRINCE CARMEN JONES, SR.,

                Movants.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:04-cv-03044-AW)
Argued:   September 25, 2009          Decided:   December 8, 2009


Before WILKINSON and DUNCAN, Circuit Judges, and Damon J. KEITH,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER,
Washington, D.C., for Appellant.       Jay Creech, Shady Side,
Maryland, for Appellees.     ON BRIEF: Ted Williams, Washington,
D.C., for Appellant.     Timothy W. Fitzmaurice, Upper Marlboro,
Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     This appeal arises from a district court order granting a

defendant’s motion for summary judgment in an action brought

pursuant to 42 U.S.C. § 1983; the Maryland Survival Act, Md.

Code Ann., Est. & Trusts § 7-401(y); and the Virginia Wrongful

Death Act, Va. Code Ann. § 8.01-50.                      The district court held

that under state law, Appellant Mabel S. Jones (“Appellant”), as

personal    representative      of    her     son’s      estate,       is    barred       from

recovering under the Maryland Survival Act when the decedent’s

father and the guardian of the decedent’s daughter settled a

claim    under    the   Virginia      Wrongful      Death        Act    for       the    same

incident.    For the reasons that follow, we affirm.



                                         I.

     On September 1, 2000, at around 1:00 a.m., Prince Carmen

Jones, Jr. (“Decedent”) was driving north on Georgia Avenue in

Washington,      D.C.    Two   members       of    the    Prince       George’s         County

Police     Department,    Corporal       Carlton         B.     Jones       and   Sergeant

Alexandre     Bailey,    followed       Decedent’s            vehicle       because      they

believed    it    belonged     to    Darryl       Gilchrest,       a    suspect         in   a

criminal investigation.             They followed Decedent from D.C. into

Prince George’s County, Maryland; back through D.C.; and then

into Fairfax County, Virginia.              Decedent resided in Maryland but

                                         3
was driving to Virginia to visit his fiancée Candace Jackson.

After Decedent pulled into a driveway, Corporal Jones pulled up

behind him and exited his vehicle.                  When Decedent attempted to

flee, Corporal Jones fired sixteen shots at him.                           Decedent was

hit by five bullets in the back and one in the arm.                           He died a

short time later in Virginia. 1

      On    December    5,       2000,   Appellant         brought     a    seven-count

complaint     against       Corporal     Jones,          Sergeant     Bailey,     Prince

George’s County (“County”), and Chief of Police John S. Farrell

(collectively, “Defendants”) in the United States District Court

for   the    District       of    Columbia.         The      complaint       alleged    a

constitutional violation under 42 U.S.C. § 1983, and various

tort claims under the Maryland Survival Act and the Virginia

Wrongful    Death    Act,    including      assault        and   battery,     negligent

training     and     supervision,        and       intentional        and     negligent

infliction of emotional distress.                  On March 22, 2004, the case

was   transferred      to   the    United       States    District    Court     for    the

District of Maryland.             A year later, on April 28, 2005, the

district     court     granted      summary       judgment       to   Chief     Farrell,



      1
       The details of the events leading up to the Decedent’s
death are set forth in greater detail in Jones v. Prince
George’s County (“Jones I”), 835 A.2d 632, 635 (Md. 2003) and
Jones v. Jones (“Jones II”), 915 A.2d 471, 474-75 (Md. Ct. Spec.
App. 2007).

                                            4
Sergeant   Bailey,   and   the   County.   Only   Appellant’s   claims

against Corporal Jones remained.

     While Appellant’s lawsuit was pending, Prince Carmen Jones

Sr. (“Jones Sr.”), the Decedent’s father, and Candace Jackson,

as guardian of Decedent’s daughter Nina Jones (“Nina”), brought

a Maryland Wrongful Death Act, Md. Code Ann., Cts. & Jud. Proc.

§ 3-904, action in the Circuit Court for Prince George’s County

against Defendants.    Soon after, the court allowed Appellant to

intervene under Maryland Rule 15-1001. 2     On January 9, 2006, a


     2
       Thereafter, Appellant filed a motion for summary judgment,
asserting that, because the death occurred in Virginia, the
Virginia Wrongful Death Act controlled and, under that act, the
personal representative is the only person with standing to
bring suit. The circuit court granted summary judgment on that
ground and dismissed the entire case.      Jackson and Jones Sr.
noted an appeal and the court of appeals issued a writ of
certiorari. The court held, inter alia, that the plain language
of the Maryland Wrongful Death Act provides that, when the
wrongful act occurs in another state, the substantive law of
that state applies; the circuit court therefore erred in ruling
that the place determines as a matter of substance which state’s
wrongful death statute applies. Jones I, 837 A.2d 638-39. The
court observed that the allegations against the defendants
included some wrongful acts in Maryland and others in Virginia.
Id. at 639.

     The court further held that the issue of who has standing
to file a wrongful death action in Maryland is procedural, not
substantive, and thus is governed by the law of the forum state,
Maryland.   Id. at 640.    In addition, the court ruled that,
because neither the Maryland Wrongful Death Act nor the Maryland
Rules specify who may properly file a wrongful death action in
Maryland when the wrongful acts alleged to have caused the death
occurred, at least in part, outside of Maryland, common law
standing principles applied.      Id. at 644.       Under those
(Continued)
                                5
jury       found    liability    and     awarded    damages     to    the   plaintiffs.

Jackson       was    awarded    $2.5     million,     Appellant       was   awarded   $1

million,       and    Jones     Sr.    was   awarded      $200,000. 3       Thereafter,

Corporal Jones and the County moved for judgment notwithstanding

the verdict, for a new trial, or to revise the judgment.                              The

trial court granted the motion in part, striking the judgment in

favor of Appellant and Jones Sr. because neither party was a

permissible beneficiary under the Virginia Wrongful Death Act.

       Appellant       and      Jones     Sr.    appealed       the     trial   court’s

decision.            Before     the     appeal     came    to   fruition,       however,

Defendants settled with Jones Sr. and Jackson. 4                      Pursuant to that



principles, the court found that the plaintiffs and intervenor
were aggrieved people with standing to sue.   Id. Accordingly,
the court reversed the grant of summary judgment and remanded
the case for further proceedings. Id. at 646.
       3
       Soon after the jury trial, on January 20, 2006, Appellant
voluntarily dismissed her wrongful death claim in the Maryland
district court matter, explaining:

       Nina Jones is the exclusive beneficiary in plaintiff’s
       Virginia Wrongful Death Action and she is only
       entitled to one recovery as a matter of law.

            . . . Because a wrongful death claim has been
       fully adjudicated on her behalf, it would be contrary
       to law and inefficient to continue parallel litigation
       on this issue . . . .

J.A. 32.
       4
       Nevertheless, the Court of Special Appeals of Maryland
issued an opinion.   Jones II, 915 A.2d 471. In that opinion,
(Continued)
                               6
settlement, which the Circuit Court for Prince George’s County

approved    on    September    27,    2006,      Jones   Sr.    would    receive

$200,000,   and    Jackson    would    receive    $2.3   million   for    Nina’s

benefit.

     Once the settlement was approved, on September 7, 2007,

Corporal    Jones     filed    a     motion   for    summary     judgment     in

Appellant’s      earlier   Maryland    lawsuit.      Corporal    Jones    argued

that under Virginia law, Appellant was barred from recovering

under a survival statute when the appropriate beneficiary had

already recovered under the Virginia Wrongful Death Act.                     By

contrast, Appellant argued that her son’s death gave rise to two

separate and distinct claims--one under the Virginia Wrongful

Death Act and one under the Maryland Survival Act--that serve



the court affirmed the trial court’s judgment, holding that it
properly struck the verdicts in favor of Jones Sr. and
Appellant. Specifically, the court held that under the Maryland
Wrongful Death Act, when the wrongful act that caused the death
was committed in another state, the substantive law of that
other state applies.   Id. at 479.  Finding the wrongful act by
Corporal Jones was committed in Virginia, the court held the
Virginia Wrongful Death Act applied. Id. at 478-79. The court
noted that the right to recover damages for wrongful death,
unlike the issue of standing to file a wrongful death action
addressed in Jones I, is a matter of substantive law, not
procedural law. The Virginia Wrongful Death Act thus determined
the permissible beneficiaries. Id. Under the Virginia Wrongful
Death Act, a parent of an adult child decedent is not a
permissible beneficiary if the adult child decedent is survived
by a minor child.    Id. at 479.   Accordingly, the court found
that Appellant did not have a substantive right of recovery for
wrongful death under Virginia law. Id.

                                        7
different      purposes     and     accomplish     entirely     different   results.

In essence, she said the disposition of one claim could not bar

the other.

       On     April    2,   2008,    the   district     court    granted    Corporal

Jones’s motion for summary judgment, reasoning that “Virginia’s

wrongful death statute, and the body of case law surrounding it,

explicitly and unequivocally establish that there can only be

one recovery for the same injury.”                 J.A. 72 (emphasis omitted).

That same day, Appellant appealed from this order.



                                           II.

       We first determine which matters are properly before us in

this appeal.           Appellant’s notice of appeal explicitly states

that       Appellant   is   appealing      “to    the   United    States    Court   of

Appeals for the Fourth Circuit from the Court’s Order granting

Defendants’ Motion for Summary Judgment entered on the 2nd day of

April, 2008.”          J.A. 139 (emphasis added).             In her brief and at

oral argument, however, Appellant also challenged the district

court’s April 28, 2005, order granting summary judgment to all

defendants but Corporal Jones. 5                 Specifically, Appellant argues


       5
       The April 28, 2005, order has been appealed by the parties
once before.   However, those appeals were dismissed before the
issues reached this court.     On May 16, 2005, Corporal Jones
filed a notice of appeal challenging the district court’s ruling
(Continued)
                                8
that no basis existed for dismissing her § 1983 claims against

the County.

       Federal    Rule       of    Appellate      Procedure     3(c)(1)(B)        provides

that the notice of appeal must “designate the judgment, order,

or part thereof being appealed.”                  Generally, the requirements of

Rule 3 are liberally construed, see Torres v. Oakland Scavenger

Co.,   487     U.S.   312,        316   (1988),    and   an    appeal    from     a   final

judgment brings into question all previous rulings leading to

the judgment, see McLaurin v. Fischer, 768 F.2d 98, 101 (6th

Cir.   1985).         That    said,      “[s]ubjecting        Rule   3   to   a    liberal

construction does not . . . excuse compliance with the rule.”

Nolan v. U.S. Dep’t of Justice, 973 F.2d 843, 846 (10th Cir.

1992).    Because the dictates of Rule 3 are jurisdictional, each

requirement must be satisfied as a prerequisite to appellate

review.      Smith v. Barry, 502 U.S. 244, 248 (1992).                          Where the

notice    of   appeal    designates         specific     rulings     being      appealed,



on the issue of qualified immunity. On May 31, 2005, Appellant
filed a cross-appeal, challenging the district court’s dismissal
of her claims against the County.     On September 2, 2005, this
court granted Appellant’s motion to dismiss Corporal Jones’
appeal, and pursuant to Appellant’s motion to withdraw her
appeal to permit the case to move forward in district court,
Appellant’s cross-appeal was also dismissed. In addition, these
appeals were not interlocutory appeals, as Appellant argued,
because the April 28th, 2005, order was not of a nature to be
“‘effectively unreviewable on appeal from final judgment.’”
Lauro Lines S.R.V. v. Chasser, 490 U.S. 495, 498 (1989) (quoting
Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 431 (1985)).

                                             9
this   court        has    no    jurisdiction         to    review   other      judgments      or

issues    which       are       not    expressly       referenced      or     even   impliedly

intended for appeal.                   See Foster v. Tandy Corp., No. 86-1726,

1987    WL    46367,       at     *8    (4th    Cir.       Sept.   16,   1987)       (entry    of

directed verdict not appealed when notice of appeal addressed

only    the    grant        of    a    judgment       notwithstanding          the   verdict);

Gunther v. E.I. Du Pont De Nemours & Co., 255 F.2d 710, 717 (4th

Cir. 1958) (“[S]ince the jurisdiction of the appellate court is

determined by the timeliness and specific terms of the notice,

it cannot be modified to cover a judgment not included by any

reasonable interpretation . . . .”).

       Here,     the       notice       of     appeal      explicitly         referenced      the

district court’s April 2, 2008, order but failed to designate

the    April    28,       2005,       order.      Appellant        argues     her    intent    to

appeal that order was obvious because she named the County as an

appellee.       “While the intent to appeal may be obvious from the

procedural history of a case or from the appeal information form

completed      by     an    appellant,”         no    such    intent     is    obvious      here.

Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1059 (8th

Cir.    2002).            Appellant’s          appeal      information        form   does     not

mention the April 28, 2005, order, and the issues resolved in

that order were not revisited or addressed in the April 2, 2008,

order.        The    County       easily       could    have   assumed        that   Appellant

                                                 10
would not appeal the April 28, 2005, order when she failed to

include that order in her notice of appeal and in the appeal

information    form.           Moreover,        the       April   28,   2005,     order    had

already been appealed once before, and nothing in the record

indicates Appellant intended to appeal that order again.                                   We

thus lack jurisdiction to review the district court’s April 28,

2005, order, and turn our attention to the April 2, 2008, order,

which is all that is before us for review.



                                              III.

    Having     determined            our   scope      of    review,     we   now    turn   to

Appellant’s arguments regarding the April 2, 2008, order.                                   As

noted     above,    in        that    order,        the    district       court    dismissed

Appellant’s       remaining          claims    against       Corporal      Jones,    finding

Virginia law barred Appellant from recovering under the Maryland

Survival    Act.         On    appeal,        Appellant      challenges      the    district

court’s application of Virginia law to her Maryland Survival Act

claim.      First,       she     avers        that    Maryland’s        survival     statute

differs    from    the        Virginia     Wrongful         Death   Act    because    it    is

conceptually designed to redress the interests of the decedent’s

estate, whereas the Virginia Wrongful Death Act is intended to

redress the interests of designated beneficiaries.                              Second, she

contends that the present case makes out a sufficiently clear

                                               11
and    strong     public       policy   in   favor   of   allowing      her   Maryland

Survival        Act    claim    to    proceed.       Finally,     she    posits    that

Corporal Jones waived his right to assert that Virginia law bars

the present action by failing to timely assert such an argument

as an affirmative defense in his answer to her complaint.                          These

arguments are discussed separately below.



                                             A.

        We first consider the argument that Virginia and Maryland

law     serve     entirely      different     functions,     such    that     Maryland

should not apply Virginia’s law to this case.                       Although we are

sympathetic to Appellant’s argument, we find that her argument

does not fairly reflect Maryland’s own approach to choice of law

analysis.         In Maryland, courts adhere to the traditional lex

loci delicti rule for torts, which provides that the state in

which     the     harm     occurred     is    the    state   that       provides    the

substantive cause of action to the injured party.                       Philip Morris

Inc. v. Angeletti, 752 A.2d 200, 230 (Md. 2000).                        Thus, even if

Maryland would have an interest in applying its own substantive

law, Maryland’s choice of law principles compel the application

of Virginia law in this case.                Klaxon Co. v. Stentor Elec. Mfg.

Co.,    313     U.S.   487,     496   (1941).       Recognizing     that    Decedent’s




                                             12
shooting    and    death      occurred    in    Virginia,      the     district      court

correctly concluded that Virginia’s substantive law controls.

        Virginia      recognizes      a     survival         action     for     injuries

sustained by the victim.            See Va. Code Ann. § 8.01-25.                However,

unlike the law of Maryland, the law of Virginia dictates that a

survival action brought in Virginia converts to a wrongful death

action     if   the    victim      dies   from       that    particular       injury    or

wrongful act.         See Va. Code Ann. §§ 8.01-25, 8.01-56; see also

El-Meswari v. Wash. Gas Light Co., 785 F.2d 483, 490 (4th Cir.

1986) (“[Section] 8.01-25 defers to the wrongful death statute

as the exclusive statement of the grievances that Virginia will

recognize when a tort victim dies of her injuries.”); Wright v.

Eli Lilly and Co., 65 Va. Cir. 485, 495 (Va. Cir. Ct. 2004)

(“[I]f the [decedent’s] death is due to the same injury which is

the subject of a pending personal injury action, the pending

action is converted to one for wrongful death.”).                       Consequently,

under    Virginia      law,   “a   person      may    not    recover    for    the     same

injury     under      the   survival      statute      and     the    wrongful       death

statute” if that injury or wrongful act resulted in the victim’s

death.     Hendrix v. Daugherty, 457 S.E.2d 71, 75 (Va. 1995); see

also Va. Code Ann. § 8.01-56 (explaining there can “be but one

recovery for the same injury”).




                                           13
     Here, because Nina has already recovered under the Virginia

Wrongful Death Act in the state proceeding, Appellant cannot

recover under the Maryland Survival Act. 6                          Under Virginia law,

negligent conduct by one person causing the death of another

gives rise to only one cause of action.                    This cause of action is

provided    in   lieu    of   any    other       form    of    recovery    against   the

wrongdoer    based      on    the    same    wrongfully         caused     death.     In

Virginia,    therefore,       a     judgment      under       the    Virginia   Wrongful

Death Act is conclusive between the parties as to all rights

arising from the operative facts.                       See Semler v. Psychiatric

Inst. of Wash. D.C., Inc., 575 F.2d 922, 931 (D.C. Cir. 1978).

This must also be the effect of Nina’s recovery in the Circuit



    6
        Appellant argues that Nina cannot be said to have
recovered under the Virginia Wrongful Death Act because the
state proceeding involved a Maryland wrongful death claim.
Admittedly, Nina and Jones Sr. filed a claim for wrongful death
in Maryland, and the Maryland Supreme Court in Jones I
determined that “the general Maryland choice of law principles
concerning the right to bring an action disclose that, for the
purposes of the wrongful death statute, this is a procedural
issue governed by the law of [Maryland].”      835 A.2d at 640.
Yet, by the same token, both Jones I and Jones II recognized
that Virginia’s substantive law applied to conduct that occurred
in Virginia, see Jones I, 835 A.2d at 639; Jones II, 915 A.2d at
479, and the claims ultimately presented to the jury were all
based upon conduct that occurred in Virginia exclusively, see
Jones II, 915 A.2d at 475.      Thus, although procedurally the
matter was brought under Maryland law, the “legal right to
recover damages for the wrongful death of [the Decedent] [was]
controlled by the Virginia Act.” Id. at 479.


                                            14
Court of Prince George’s County. 7          We therefore find no error in

the district court’s conclusion that Virginia law bars Appellant

from proceeding under the Maryland Survival Act. 8



                                      B.

     We    turn    next   to   Appellant’s       contention   that   this     case

presents    a     sufficiently   clear     and    strong   public    policy    to

disregard the lex loci delicti doctrine in favor of allowing her

     7
        Appellant insists that Nina did not recover damages
pursuant to a court judgment but instead chose to settle her
claims, and thus cannot be said to have recovered under the
Virginia Wrongful Death Act. Nina obtained a settlement because
she had a wrongful death claim, and as Jones II recognized, her
legal right to recover was controlled by the Virginia Wrongful
Death Act.     915 A.2d at 479.       The parties reached their
settlement knowing Virginia’s substantive law controlled, and,
in that settlement, Nina agreed to “release any and all claims .
. . [she was] entitled to bring on her own behalf,” including
her wrongful death claim.    J.A. 45.   Accordingly, and contrary
to Appellant’s assertions, Nina recovered under Virginia’s
wrongful death statute in the state proceeding.
     8
       In reaching this conclusion, we do not decide whether the
abatement of Appellant’s § 1983 claims based on Virginia state
law is permissible--that is, whether Officer Jones’s conduct
constitutes a clear deprivation of federal rights. We recognize
that after Robertson v. Wegmann, 436 U.S. 584, 594 (1978), and
Carlson v. Green, 446 U.S. 14, 24 (1980), it would appear that a
federal rule of survival supersedes any state law requiring
abatement when the acts of § 1983 defendants caused the death of
the injured party.    See, e.g., McFadden v. Sanchez, 710 F.2d
907, 911 (2d Cir. 1983); O’Connor v. Several Unknown Corr.
Officers, 523 F. Supp. 1345, 1348 (E.D. Va. 1981).     We do not
reach this issue here, however, because Appellant failed to
raise it in her opening brief, and it is therefore waived. See,
e.g., Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 191 n.1 (4th
Cir. 2003).

                                      15
Maryland Survival Act claim to proceed.    It is true that “where

an overriding issue of the forum’s public policy is at stake,

such public policy may provide a sufficient basis for overruling

the principle of lex loci delicti and applying forum law to the

case.”   Black v. Leatherwood Motor Coach Corp., 606 A.2d 295,

303 (Md. Ct. Spec. App. 1992).    Here, however, Appellant has not

shown that the right to recover under both wrongful death and

survival statutes is a matter of important public policy for

Maryland, and without guidance from the Maryland courts, we will

not presume such a policy exists.      Given that no case law or

statute has been shown to support the importance of this public

policy, and given the few limited circumstances Maryland courts

have been willing to depart from the lex loci delicti doctrine

for public policy purposes, see, e.g., Hauch v. Connor, 453 A.2d

1207, 1214 (Md. 1983), Powell v. Erb, 709 A.2d 1294, 1298 (Md.

1998), and Lab. Corp. of Am. v. Hood, 911 A.2d 841, 849-50 (Md.

2006), 9 we find the district court did not err in adhering to the

lex loci delicti doctrine.


     9
       Appellant’s reliance on Hauch, Powell and Hood is
misplaced.   Those are state law cases in which Maryland courts
found particular matters of state policy, rooted in statute and
case law, to present public policy sufficiently powerful to
overwhelm lex loci delicti and require the application of local
law. In the absence of any explanation why Maryland would find
such a similarly powerful interest here, we will not presume the
right to make such a determination on its behalf.

                                 16
                                            C.

       Finally, we turn our attention to Appellant’s argument that

Corporal Jones waived his right to assert the Virginia statutory

bar    to    double      recovery     because       he      did    not    assert   this

affirmative defense in his answer to the complaint.                        See Fed. R.

Civ. P. 8(c).        We disagree.       As Corporal Jones notes, there was

no basis for raising Virginia’s statutory bar to double recovery

until Nina recovered pursuant to the Virginia Wrongful Death Act

in September 2006.           See Ahmed v. Nat’l R.R. Passenger Corp.

(Amtrak), No. 94-2438, 1995 WL 378599, at *3 (4th Cir. June 27,

1995).      Indeed, once the settlement in the state proceeding was

approved, Corporal Jones immediately notified the trial court of

the issue at a telephone conference held on October 31, 2006.

Appellant      thus      cannot      show        Corporal     Jones’s      delay    was

accompanied by actual prejudice, bad faith or futility.                            See,

e.g., Defender Indus., Inc. v. Nw. Mut. Life Ins. Co., 938 F.2d

502,   508    (4th    Cir.   1991)    (mere       delay,    when    unaccompanied    by

actual      prejudice,    bad     faith,    or     futility,       does   not   justify

denial of leave to amend answer to assert affirmative defense),

cert. denied, 113 S. Ct. 3038 (1993).




                                            17
                           IV.

    For the foregoing reasons, the judgment of the district

court is

                                                  AFFIRMED.




                            18
