UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JORGE MELENDEZ, as personal
representative of the estate of Jose
Ines Melendez; MARIA MARTINEZ,
individually and as parent and next
friend of Christian Martinez
Melendez, Steffany Melendez and
Brian Melendez,
Plaintiffs-Appellants,

v.

HOWARD COUNTY GOVERNMENT;
DANIEL G. MERSON; ALPHONSO F.
CONNER,
Defendants-Appellees,

and
                                       No. 96-2709
JERRY PRICE, Police Officer, in both
his official and individual
capacities; VICTOR RIEMER, Howard
County Police Officer, in both his
official and individual capacities;
DAVID SHAMAKER, Howard County
Police Officer, in both his official
and individual capacities; MICHAEL
VICHICH, Howard County Police
Officer, in both his official and
individual capacities; UNKNOWN
HOWARD COUNTY EMERGENCY
MEDICAL PERSONNEL; AIMEE C.
GREENBERG,
Defendants.
JORGE MELENDEZ, as personal
representative of the estate of Jose
Ines Melendez; MARIA MARTINEZ,
individually and as parent and next
friend of Christian Martinez
Melendez, Steffany Melendez and
Brian Melendez,
Plaintiffs-Appellants,

v.

HOWARD COUNTY GOVERNMENT;
DANIEL G. MERSON; ALPHONSO F.
CONNER,
Defendants-Appellees,

and
                                                No. 97-1062
JERRY PRICE, Police Officer, in both
his official and individual
capacities; VICTOR RIEMER, Howard
County Police Officer, in both his
official and individual capacities;
DAVID SHAMAKER, Howard County
Police Officer, in both his official
and individual capacities; MICHAEL
VICHICH, Howard County Police
Officer, in both his official and
individual capacities; UNKNOWN
HOWARD COUNTY EMERGENCY
MEDICAL PERSONNEL; AIMEE C.
GREENBERG,
Defendants.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-94-3550-MJG)


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Argued: June 6, 1997

Decided: August 18, 1997

Before HALL and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Bennett Morrison, TRAPENI, ROMERO &
MORRISON, P.C., Fairfax, Virginia, for Appellants. Rebecca A.
Laws, Senior Assistant County Solicitor, Ellicott City, Maryland, for
Appellees. ON BRIEF: Barbara M. Cook, Howard County Solicitor,
Ellicott City, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The Melendez family sued Howard County, Maryland, and several
of its emergency response personnel for the wrongful death of Jose
Melendez, who died while in the County's custody during transport
to a hospital. The family brought their action under 42 U.S.C. § 1983
for deliberate indifference to Jose Melendez's medical needs and
under Maryland common law for gross negligence, in accordance
with the partial immunity Maryland law affords to emergency medi-
cal care providers. See Md. Code Ann., Cts. & Jud. Proc. § 5-309.

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The district court entered summary judgment in favor of the defen-
dants, and we affirm.

I

On Christmas Eve of 1993, Jose Melendez, who was attending a
family gathering at the house of relatives in Elkridge, Maryland,
drank a large quantity of alcohol and became intoxicated. When he
indicated an intent to drive home in his state of intoxication, a dispute
erupted between Melendez and his relatives, in the course of which
Melendez tossed aside his 18-month old son Brian, injuring him.
Because of Melendez's violent behavior, a relative called the police,
who arrived shortly thereafter.

Melendez yelled profanities at the police and resisted their attempts
to arrest him. Four officers eventually subdued Melendez, but in the
course of the struggle, they heard his elbow pop. Although Melendez
denied any need for medical attention, the officers decided to have
him evaluated at a nearby hospital. Believing that Melendez was too
violent to be transported to the hospital in an ordinary police car, the
police decided that their options included obtaining the police "pris-
oner van" or transporting Melendez by ambulance with the use of
restraints. An ambulance had already been called for the injuries to
Brian, and police asked the ambulance staff whether they had a can-
vas full-body restraint device known locally as the"blue monster." A
second ambulance arrived which had such a restraint.

By the time that the second ambulance arrived, personnel on the
scene included Sgt. Daniel Merson of Howard County Fire and Res-
cue, a certified EMT-P (advanced life support skills), who arrived
independent of the ambulances; Elkridge Volunteer Fire Department
ambulance driver Aimee Greenberg; and Alphonso Conner, EMT-A,
the emergency technician staffing the ambulance. Greenberg pro-
duced the blue monster, a large canvas tarp to which several straps
were affixed, and several police officers as well as EMT Conner
secured Melendez for transportation to the hospital.

Melendez was placed face down on a standard stretcher with his
arms outstretched above his head. The canvas restraint was then
placed over him and the straps affixed so that Melendez was sand-

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wiched between the canvas and the stretcher. The tarp extended over
the greater part of Melendez's body, reaching from his feet to the base
of his neck. The ambulance then departed for Howard County Gen-
eral Hospital with EMT Conner attending and police officer Victor
Riemer riding in the ambulance.

In the course of the ride, EMT Conner noticed that Melendez
ceased to struggle against the restraints, although Conner did not per-
ceive this as a sign of distress. Because of the position of Melendez's
body, Conner could not see Melendez's face, nor could he easily
access normal locations for taking a pulse. He did, however, perform
a capillary refill test during the transport, pushing on Melendez's fin-
ger nail bed and watching as blood returned. He also felt the back of
Melendez's neck, which was warm and sweaty. Upon arrival at the
hospital 14 minutes later, however, it was discovered that Melendez
had stopped breathing during the transport, and attempts to revive him
were unsuccessful. The medical examiner determined the cause of
death to be positional and compression asphyxia complicating alcohol
intoxication.

The Melendez family sued Howard County and the various person-
nel involved, alleging that the blue monster was a dangerous device
and that the defendants should have known that it was dangerous and
could lead to injury. On their constitutional theory, they alleged that
the defendants' use of the blue monster was a policy and practice that
they knew or should have known could lead to serious injury or death.
Couching their claim under Estelle v. Gamble, 429 U.S. 97, 105
(1976), they contended that the defendants showed deliberate indiffer-
ence to serious medical needs of Melendez. And relying on common
law they alleged that the use of the blue monster and failure to moni-
tor Melendez's condition on the way to the hospital constituted gross
negligence.

On the defendants' motion for summary judgment, the district
court dismissed the case. It concluded that the affidavit of the expert
filed by the Melendez family to oppose summary judgment should not
be considered by the court because the plaintiffs failed to establish
that the affiant was an expert on pre-hospital emergency care. But
even considering the affidavit, the court ruled that the affidavit was
wholly conclusory, particularly as to the foreseeability of harm, and

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that the plaintiffs therefore failed as a matter of law to show gross
negligence. Similarly, on the § 1983 claims, the court observed that
the plaintiffs failed to present evidence that the defendants acted with
deliberate indifference to a serious medical need. On the contrary, the
court observed that the defendants were attempting to provide medi-
cal attention to Jose Melendez's arm, and no evidence was presented
to show that the defendants were aware that Melendez had any other
medical need.

The plaintiffs appealed the judgment only so far as it dismissed
Howard County, Sgt. Daniel Merson, and EMT Alphonso Conner.

II

The Melendez family contends on its § 1983 claims that the defen-
dants were deliberately indifferent to the medical needs of Jose
Melendez in violation of the standard established in Estelle v.
Gamble, 429 U.S. 97, 105 (1976), an Eighth Amendment case. With-
out addressing the question of whether the Estelle standard is appro-
priate under a Fourteenth Amendment analysis and whether it extends
to the conduct of paramedics attending to an arrestee, we agree with
the district court that the record contains no evidence that the appel-
lees were deliberately indifferent to a serious medical need. They
were, to the contrary, seeking to provide medical attention for
Melendez's arm when his death occurred. There is no evidence that
they were aware of any other medical need to which they were indif-
ferent. And there is no contention that the medical condition of
Melendez's arm contributed to Melendez's death.

On the issue of gross negligence, we likewise find that the record
falls short of establishing a prima facie case. The plaintiffs' expert
failed to explain why harm to Melendez was or should have been
foreseeable to the Howard County personnel, and absent foreseea-
bility, their actions cannot even have been negligent. Similarly, the
affidavit failed to establish that a failure to monitor Melendez during
transport was the proximate cause of his death. It was a respiratory
failure that caused Melendez's death, and the respiratory failure was
not caused by the failure to monitor. Absent the respiratory arrest, the
failure to monitor would have had no effect. At best, failure to moni-
tor contributed to the failure to take action that might have saved

                    6
Melendez's life. But considering the plaintiffs' affidavit on this point
we only have the statement that "[h]ad proper monitoring been done,
the EMTs would have known when the patient began to experience
difficulty breathing and when he suffered cardiac arrest." The record
contains no opinion that the defendants would have been able to save
Melendez's life. On the contrary, the only evidence in the record on
this question, supplied by the defendants, is the state medical examin-
er's opinion that under circumstances similar to those involving
Melendez, "resuscitation is not likely to be successful."

Under Maryland law, persons providing emergency medical care
enjoy immunity from negligence claims; a party must establish gross
negligence to recover. See Md. Code Ann., Cts. & Jud. Proc. § 5-309.
Gross negligence may be found where

          there is no evidence of actual intent to injure or of actual
          malice toward the injured person, but in which the defen-
          dant's conduct is of such an extraordinary (or outrageous)
          character as possibly to be the legal equivalent of such
          actual intent or actual malice, sometimes described as "wan-
          ton," "reckless disregard of the rights of others," and the
          like.

Smith v. Gray Concrete Pipe Co., 297 A.2d 721, 730 (Md. 1972).
Stated otherwise, gross negligence requires "exacting proof of a wan-
ton or reckless disregard for human life." United States v. Pardee, 368
F.2d 368, 374 (4th Cir. 1966). In proving gross negligence, the plain-
tiff must show that the defendant had "actual knowledge that his con-
duct was a threat to the lives of others, or to have knowledge of such
circumstances that could reasonably be said to have made foreseeable
to him the peril to which his acts might subject others." Id.

In the case before us there is no evidence that the defendants had
knowledge that their conduct would threaten the life of Jose
Melendez. There is also no evidence that their conduct was extraordi-
nary or outrageous so as to be equivalent to intent or malice or reck-
less disregard of the rights of others. On the contrary, the defendants
were ignoring Melendez's protestations that he did not need medical
attention and were attempting to provide it to him by taking him to
the hospital. There is no evidence that any member of the Howard

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County emergency crew was aware of a danger in using the blue
monster or of Melendez's actual condition on the trip to the hospital.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

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