# Kearney v. Berger

> Court of Appeals of Maryland · October 28, 2010 · 416 Md. 628

URL: https://www.frixlaw.com/law-library/cases/9773894

## Case

- **Full name:** Gail A. KEARNEY, Individually, Etc., Et Al. v. Robert S. BERGER
- **Court:** Court of Appeals of Maryland
- **Decided:** October 28, 2010
- **Citations:** 416 Md. 628; 7 A.3d 593; 2010 Md. LEXIS 691
- **Precedential status:** Published
- **Opinion:** Dissent
- **Judges:** Bell, Harrell, Battaglia, Greene, Murphy, Barbera, Ridge
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9773894

## How later opinions describe it (automated extraction)

- stating that “[t]he requirement that the claimant or plaintiff file a certificate of qualified expert serves an important purpose, even in cases of unilateral waiver[,]” and dismissing the claim for failure to comply
- finding no abuse of discretion in the circuit court’s conclusion that there was no good cause to extend the deadline for filing a certificate in a medical malpractice action
- holding that dismissal without prejudice is required when a plaintiff fails to meet the requirement of attaching a proper expert report to the Certificate
- explaining that failure to comply with the requirements of the Act requires dismissal without prejudice

## Opinion text

MURPHY, J., dissenting, which BELL, C.J. and ELDRIDGE, J. join.
In my opinion, it is unfair to extend the holding of Walzer v. Osborne to cases in which, before filing the motion to dismiss on the ground that the plaintiff failed to file a sufficient “certificate of qualified expert,” the defendant—as a result of pre-trial discovery that preceded the “Walzer” motion—had already been provided with all of the information required by CJ § 3-2A-04(b). I would therefore reverse the judgment of the Circuit Court and direct that the case be remanded for a determination of whether the case at bar is such a case. If it is, the Petitioners should not be denied their day in court.
Chief Judge BELL and Judge ELDRIDGE have authorized me to state that they join this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773894. Public record. Not legal advice.