                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-1251


KATHERINE M. LEWIS,

                Plaintiff – Appellant,

           v.

JEREMY P. WALETZKY,

                Defendant – Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:07-cv-02154-PJM)


Argued:   March 23, 2010                  Decided:   April 30, 2010


Before NIEMEYER and SHEDD, Circuit Judges, and James A. BEATY,
Jr., Chief United States District Judge for the Middle District
of North Carolina, sitting by designation.


Order of Certification of a question of law to the Court of
Appeals of Maryland.


ARGUED: Paul McCourt Curley, CANFIELD,         BAER, HELLER, LLP,
Richmond, Virginia, for Appellant.        H.     Kenneth Armstrong,
ARMSTRONG, DONOHUE, CEPPOS & VAUGHAN, CHTD,    Rockville, Maryland,
for Appellee.    ON BRIEF: Erica C. Mudd,       ARMSTRONG, DONOHUE,
CEPPOS & VAUGHAN, CHTD, Rockville, Maryland,   for Appellee.
PER CURIAM:

      Katherine Lewis appeals from the dismissal of her complaint

and   from    the        district   court’s    denial     of     her    motion      to

reconsider.        In her complaint, Lewis alleges that Dr. Jeremy

Waletzky,    a     Maryland-licensed     psychiatrist,         committed       medical

malpractice        by     prescribing    to    her    certain      antipsychotic

medications during her psychiatric care and treatment.                         Because

Lewis alleges that her injury occurred in Washington, D.C. (“the

District”),        the    District’s    law   would     normally       apply     under

Maryland’s lex loci delicti rule.             However, the district court,

under the public policy exception to lex loci delicti, applied

Maryland     law    and     dismissed   the   complaint     without       prejudice

because Lewis failed to comply with the mandatory requirements

of Maryland’s Health Care Malpractice Claims Act (“the Maryland

Act”). See Md. Code Ann., Cts. & Jud. Proc., §§ 3-2A-01, et seq.

      Pursuant to Md. Code Ann., Cts. & Jud. Proc., §§ 12-605 and

12-606, we now certify the following question of Maryland law to

the Court of Appeals of Maryland:

      Does Maryland recognize the public policy exception,
      or any other exception, to lex loci delicti based on
      the Maryland Health Care Malpractice Claims Act, see
      Md. Code Ann., Cts. & Jud. Proc., §§ 3-2A-01, et seq.,
      which requires a plaintiff to comply with certain
      mandatory administrative filings prior to filing a
      medical malpractice lawsuit in a Maryland court?

      The answer to this question, which is outcome determinative

of this appeal, does not appear to be directly controlled by any

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Maryland    appellate        decision,        constitutional        provision,      or

statute.    We acknowledge that the Court of Appeals of Maryland

may   reformulate     this   question.         We   also     emphasize    that    this

question is premised on the factual allegations of Katherine

Lewis’ complaint which, as explained below, indicate (1) that

Jeremy    Waletzky    provided     medical      treatment      in   the     state   of

Maryland to Katherine Lewis; (2) the current lawsuit was brought

in federal court in the District of Maryland; and (3) the last

act to complete the alleged tort – the injury – was sustained in

the District.

      Counsel of record for Katherine Lewis is Paul M. Curley,

Canfield Baer, LLP, 2201 Libbie Avenue, Suite 200, Richmond,

Virginia,   23230.       Counsel    of    record       for   Jeremy   Waletzky      is

Kenneth Armstrong and Erica C. Mudd, Armstrong, Donohue, Ceppos

& Vaughan, Chartered, 204 Monroe Street, Suite 101, Rockville,

Maryland, 20850.



                                         I.

      Lewis alleges the following facts in her complaint which,

for   purposes   of   this    appeal,    are     not    disputed.     See    GE   Inv.

Private Placement Partners II v. Parker, 247 F.3d 543, 546 (4th

Cir. 2001) (noting that because the case was dismissed pursuant

to Rule 12(b), “we assume the facts alleged in the complaint are

true”).

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      Lewis,         once    a     resident     of    the    District      and      currently       a

resident       of     Minnesota        was      formerly      a   patient        of    Waletzky.

(Compl.    ¶     1    &     6).      Waletzky,        at    all   times    relevant,         was    a

physician licensed to practice in the State of Maryland and had

his office in Chevy Chase or Bethesda, Maryland.                                (Compl. ¶ 2).

From approximately October 2000 until January 2005, Waletzky was

Lewis’ psychiatrist and treated her at his Chevy Chase office.

(Compl.      ¶       6).          Waletzky       prescribed        several        psychotropic

medications to Lewis, including antidepressants and stimulants,

and   also       prescribed         antipsychotic           and/or     neuroleptic          drugs.

(Compl. ¶ 7).             All of the prescribed medications were filled in

pharmacies in the District and ingested by Lewis while she was

in the District.             Id.

      During         the     treatment       period,        Waletzky      did    not      diagnose

Lewis   with         any    serious       mental      disorder       and     never     made       any

diagnosis of Lewis’ psychiatric condition.                           (Compl. ¶ 8).           After

taking the prescribed antipsychotics, Lewis began experiencing

adverse      side         effects      and      discontinued         her      use      of    these

medications.              (Compl.     ¶   9).         Immediately      after      experiencing

these adverse side effects, Lewis suffered, for the first time

in her life, an anxiety attack.                       Id.    She contacted Waletzky who

instructed her to continue taking the antipsychotic medications

and   wrote      her       additional        prescriptions        in   order        for     her    to

“taper off” the antipsychotic medications.                             Id.      While she was

                                                  4
“tapering off” the antipsychotic medications, Lewis continued to

experience adverse side effects, including extreme jaw tension

and    clenching,     anxiety,   and    other       effects.        Id.          After

completely withdrawing from the antipsychotic drugs, Lewis’ side

effects persisted and worsened, and she was eventually diagnosed

with    a   permanent     neurological       disorder     known      as     Tardive

Dyskinesia/Dystonia caused by the antipsychotics she had taken.

Id.



                                       II.

       Lewis filed this action in the United States District Court

for the District of Maryland alleging the medications Waletzky

prescribed    were     inappropriate       for   her    condition,         and    his

treatment breached the standard of care applicable to the use of

antipsychotic    drugs.       Waletzky       then    moved     to   dismiss       the

complaint.    Following briefing, the district court, in a written

opinion,    granted    the   motion    and   dismissed       the    case    without

prejudice.    The district court subsequently denied Lewis’ motion

for reconsideration.

       Waletzky’s motion to dismiss was based on Lewis’ failure to

file her claims with Maryland’s Health Care Alternative Dispute

Resolution Office as a “condition precedent” to bringing suit.

See     Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02; see also,

Rowland v. Patterson, 882 F.2d 97, 99 (4th Cir. 1989) (en banc)

                                       5
(noting that “Maryland's statutory requirement of arbitration as

a precondition to legal action . . . must be honored by federal

courts”).      Lewis, however, argued that under Maryland’s rule of

lex    loci   delicti    the   law    of    the     District    should       apply    and,

therefore, she did not have to comply with the Maryland Act in

order to proceed with her claim.                  The district court, relying on

Lab. Corp. of Am. v. Hood, 911 A.2d 841, 848-51 (Md. 2006),

found that although under the lex loci delicti rule, the law of

the District would normally apply, the law of Maryland applies

because the application of the District’s law violates a “clear,

strong, and important Maryland public policy.”                       Because it found

that    the   law   of   Maryland     should        apply,     the    district       court

dismissed     Lewis’     complaint     without       prejudice       for   failure     to

comply with the Maryland Act’s mandatory requirements.



                                           III.

       On appeal, Lewis contends that the district court erred in

holding under Maryland’s lex loci delicti rule that the law of

the place of injury – the District – is not the appropriate law

to apply.      Lewis also contends that although the Maryland Court

of Appeals has recognized the public policy exception, it has

never    applied    it   in    tort   cases.         See     e.g.,    Erie    Insurance

Exchange v. Heffernan, 925 A.2d 636, 653-58 (Md. 2007) (holding

that the public policy exception to lex loci delicti did not

                                            6
require application of the Maryland cap on non-economic damages

or Maryland law on contributory negligence).

       In an action based upon diversity of citizenship, as here,

the district court must apply the substantive law of the state

in which it sits, including the state’s choice of law rules.

See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97

(1941).     Maryland    adheres    to    the     lex   loci   delicti      rule   in

analyzing choice of law problems with respect to tort causes of

action.    Erie Insurance Exchange, 925 A.2d at 648-49.                  Under lex

loci delicti, “where the events giving rise to a tort action

occur in more than one State, we apply the law of the State

where the injury – the last event required to constitute the

tort   –   occurred.”     Lab.     Corp.       of   Am.,    911   A.2d     at   845.

Although lex loci delicti dictates that the law of the place of

injury is to be applied, the Court of Appeals of Maryland has

recognized a public policy exception to this general rule that

will apply the law of Maryland if the application of the law of

the place of the injury violates a “clear, strong, and important

Maryland public policy.”      Id. at 851.

       No Maryland appellate decision, constitutional provision,

or statute appears to address the precise question presented in

this   case.   The   answer   to   the       certified     question   is    outcome

determinative of this appeal because Lewis’ claim may go forward

only if, under lex loci delicti, the District’s law should be

                                         7
applied. 1   Therefore, the question is properly subject to review

by the Court of Appeals of Maryland on certification. 2



                                IV.

     Accordingly, pursuant to the privilege made available by

the Maryland Uniform Certification of Questions of Law Act, we

hereby ORDER: (1) that the question stated above be certified to

the Court of Appeals of Maryland for answer; (2) that the Clerk

of this Court forward to the Court of Appeals of Maryland, under

the official seal of this Court, a copy of this Order, together

with the original or copies of the record before this Court to

the extent requested by the Court of Appeals of Maryland; and

(3) that the Clerk of this Court fulfill any request for all or

part of the record simply upon notification from the Clerk of

the Court of Appeals of Maryland.

                                                QUESTION CERTIFIED




     1
       Lewis argues that even though this case was dismissed
without prejudice, she may nevertheless be without a remedy if
the public policy exception to the lex loci delicti rule applies
because of the statute of limitations.
     2
        Lewis contends that the decision in Erie Insurance
Exchange, 925 A.2d 636, dictates that the law of the District
should apply.   However, because the facts and circumstances of
Erie Insurance Exchange are distinguishable from the facts of
this case, we are not convinced that it is controlling.



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