                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


STACEY SMITH,                              
                  Plaintiff-Appellant,
                and
FRANK HOLLIDAY,
                              Plaintiff,          No. 01-1160

                  v.
DIANA M. BORELLO,
              Defendant-Appellee.
                                           
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
           Alexander Harvey II, Senior District Judge.
                          (CA-00-1167-H)

                   Submitted: September 23, 2002

                       Decided: November 1, 2002

      Before MICHAEL and TRAXLER, Circuit Judges, and
    Joseph R. GOODWIN, United States District Judge for the
     Southern District of West Virginia, sitting by designation.



Vacated and remanded by unpublished per curiam opinion.


                              COUNSEL

Dwayne A. Brown, Baltimore, Maryland, for Appellant. Alan R.
Siciliano, DECARO, DORAN, SICILIANO, GALLAGHER &
DEBLASIS, L.L.P., Lanham, Maryland, for Appellee.
2                          SMITH v. BORELLO
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   In January 2000, plaintiff Stacy Smith and defendant Diane M.
Borello were involved in a motor vehicle accident in Baltimore City,
Maryland. Smith, who was approximately 19 weeks pregnant at the
time, sustained personal injuries and asserted that the accident caused
the premature delivery and death of her nonviable fetus a day or so
after the accident. In April 2000, Smith instituted this diversity action
under Maryland law against Borello, seeking damages for "serious
bodily injuries and the loss of her unborn child," J.A. 2, as a result
of Borello’s negligence, as well as "pecuniary loss, mental anguish,
severe emotional stress, emotional pain and suffering, physical inju-
ries and the loss of her unborn child," J.A. 3.

   During pre-trial motions, the district court ruled that Smith could
not state a claim under the Maryland Wrongful Death Statute for her
unborn child, see Md. Code Ann., Cts. & Jud. Proc. § 3-904 (Michie
Supp. 2001), because the fetus was stillborn and nonviable at the time
of its death, see Kandel v. White, 663 A.2d 1264, 1265 (Md. 1995).
The court also ruled that, although Smith could recover damages for
her emotional pain and suffering resulting from her own physical
injuries, Smith could not recover damages for any emotional pain and
suffering resulting from the loss of her nonviable fetus. A number of
evidentiary issues arose from this distinction during the trial. The dis-
trict court ruled that Smith could not testify as to her emotional state
or the depression she suffered as a result of her grief over the loss of
her fetus and prohibited Smith from offering testimony about her
plans for the future, including purchases she had made for the
expected child. Smith was also prohibited from seeking damages for
the days she was unable to work due to depression caused by the loss
of the fetus.

   At the conclusion of the trial, the jury was instructed that, in award-
ing damages to Smith, they could consider Smith’s personal injuries,
                            SMITH v. BORELLO                              3
including their extent and duration, "[t]he effect which such personal
injuries ha[d] on the overall physical and mental health and well-
being of" Smith, the "[p]hysical pain and mental anguish suffered by
[Smith] in the past because of her personal injuries, and which with
reasonable probability may be expected to be experienced in the
future," Smith’s "medical and other expenses reasonably and neces-
sarily incurred in the past," and Smith’s "loss of earnings in the past."
J.A. 65-66. However, the jury was instructed that:

     [t]he law does not permit Plaintiff Stacey Smith to recover
     for the wrongful death of her fetus. Under Maryland law, no
     cause of action may be asserted by a mother for wrongful
     death on behalf of a nonviable fetus which was not born
     alive. This is a policy decision made by the Maryland courts
     that the law will not give a nonviable fetus a cause of action
     for negligence before the fetus becomes a person. The fetus
     in this case was nonviable and stillborn. Plaintiff Smith,
     therefore, is not entitled to any recovery in this case for
     emotional pain[,] for emotional distress or for grief suffered
     by her as a result of the loss of her stillborn fetus.

J.A. 66 (emphasis added).

   The jury ultimately returned a verdict in favor of Smith and
awarded damages of $1,839.00 for medical expenses, $2,443.84 for
loss of past earnings, and $10,000.00 for noneconomic damages.
Smith appealed. Although acknowledging that she could not recover
damages for the wrongful death of her nonviable fetus, see Kandel,
663 A.2d at 1265, Smith asserted on appeal that she could recover,
as personal injuries to herself, the injuries to her fetus (as a part of her
body), as well as for the emotional distress, depression, and other
mental injuries resulting from her miscarriage and from the loss of her
child.

   Because the parameters of a woman’s right to recover emotional
distress damages resulting from the miscarriage and loss of a nonvia-
ble fetus were not defined under Maryland law, we certified the fol-
lowing question to the Maryland Court of Appeals:

     Whether, and to what extent, the injured mother of a previ-
     able fetus, miscarried as a result of a defendant’s negli-
4                          SMITH v. BORELLO
     gence, can recover as damages for medical expenses, lost
     wages, pain and suffering, emotional distress, emotional
     trauma, anguish, depression and/or grief resulting from the
     loss of her fetus?

The Court of Appeals of Maryland accepted the certified question and
has now answered it as follows:

     A pregnant woman who sustains personal injury as the
     result of a defendant’s tortious conduct and who, as part of
     that injury, suffers the loss of the fetus may recover, in her
     own action for personal injuries, for any demonstrable emo-
     tional distress that accompanies and is attributable to the
     loss of the fetus. The distress recoverable in that action
     includes that arising from the unexpected termination of her
     pregnancy and the enduring of a miscarriage or stillbirth.
     Where a sufficient factual premise is shown, it may include
     compensation for (1) the depression, anguish, and grief that
     arises from the termination of the pregnancy, the manner in
     which the pregnancy was terminated, and from the miscar-
     riage or stillbirth — the distress of not having been able to
     carry through to a successful completion of the pregnancy,
     of having to carry a fetus or a child which is destroyed by
     someone else’s tortious conduct, of having to witness at the
     time of miscarriage or delivery the stillborn child or the fetal
     tissue that was to be her child — and (2) medical expenses
     reasonably incurred in the treatment of, and lost wages
     attendant to, that depression, anguish, or grief. It does not
     include, however, in the context of this case, pecuniary
     losses or solatium or loss of consortium damages recover-
     able under the wrongful death statute, whether or not that
     statute applies in the circumstance. The recovery, in other
     words, is for the psychic injury inflicted on the mother and
     not for her sorrow over the loss of the child. Recovery for
     that sorrow must be had, if at all, under the wrongful death
     statute.

Smith v. Borello, 804 A.2d 1151, 1163 (Md. 2002).

   In light of this answer, it is now clear that the district court’s rul-
ings improperly precluded Smith from seeking damages for emotional
                           SMITH v. BORELLO                           5
distress that may have resulted from the loss of her fetus. Under the
standards defined by the Court of Appeals of Maryland, Smith is enti-
tled to an opportunity to prove that she suffered the loss of her nonvi-
able fetus as a result of Borello’s negligence and to recover any
emotional damages attributable to that loss as defined by the Mary-
land Court of Appeals.

   Accordingly, we vacate the damages award and remand this case
to the district court for a new trial on the issue of damages.

                                        VACATED AND REMANDED
