ORDER ON DEFENDANTS MOTION TO APPLY CHOICE OF LAW PRINCIPLES TO DAMAGES AND ON OTHER MOTIONS IN LIMINE

ALAN GOLD, District Judge

THIS CAUSE is before the Court upon Defendant's Motion to Apply Choice of Law Principles to the Issue of Damages (DE #170), filed on March 14, 2003. Plaintiff filed a Response (DE #189) on April 10, 2003, and Defendant filed a Reply (DE #196) on April 18, 2003. Oral argument on this motion and other pre-trial motions occurred before the Court on Wednesday, April 23, 2003. The other pre-trial motions were: (1) Defendant's motion in limine to exclude opinions of Plaintiff's witness: Mark McCulloh [D.E. #130]; (2) Plaintiff's motion in limine re: records of medical examiner [D.E. #132]; (3) Plaintiff's motion in limine regarding testimony of defense expert David Wells [D.E. #167]; (4)Defendant's motion in limine to exclude evidence at trial [D.E. #168]; [5] Defendant's motion to disqualify Plaintiff's expert witness [D.E. #171], and (6) Defendant's motion to amend its answer/affirmative defense [D.E. #182].

I. CHOICE OF LAW ISSUES ON DAMAGES

The Court shall first consider Defendant's motion to apply choice of law principles to damages. In its motion, Defendant requests that Maryland law be applied to the claimed damages in this case, because Maryland is the state of the Decedent's (Tosha Nikkol Walker) residence. In the alternative, Defendant initially requested that North Carolina law be applied to the claimed damages because North Carolina is the state of Plaintiff's (Lanita Walker) residence. Defendant asserts in its Motion that except for the fact that this suit was filed in Florida, there is no connection between the incident underlying this lawsuit and the State of Florida. However, Defendant changed its position in its Reply stating that it "concedes that Florida's interest in this litigation is equal with or superior to the interests of North Carolina as to the issue of damages herein." Defendant added a footnote stating that it was "[t]aking into consideration the alleged contacts this Defendant has in this jurisdiction [Florida] and the fact that the Estate of Tosha Walker has an ancillary probate action pending in Florida."

Plaintiff responds that in applying Florida choice of law principles to the question of damages, there is ample cause to apply Florida law to the damages issues in this case. Plaintiff states that while Maryland law includes a damages cap to protect domiciled defendants, there is no Maryland defendant in this action to benefit from the Maryland damages cap. In the alternative, Plaintiff also requests that North Carolina law be applied to the issues of damages because it is in harmony with Florida law to the extent that it compensates Plaintiff for Plaintiff's own damages and does not impose caps. In sum, Plaintiff argues that because Defendant has contacts in Florida, Florida law will be applied to the liability issues in this case, there is no Maryland defendant in this case to benefit from Maryland's damages cap, and Florida law is in harmony with North Carolina law to the extent described above, Florida law should be applied to the damages claimed in this action.

In Defendant's Motion for Summary Judgment, which the Court denied on March 10, 2003, Defendant addressed the choice of law issues in this case. Defendant stated that in applying the Florida choice of law rules, Bahamian law would apply to Plaintiff's claims because the incident and alleged injury occurred in the Bahamas. However, Defendant asserted that because the laws of Florida and the Bahamas are substantially similar with respect to the legal issues presented, the application of the laws of either jurisdiction will produce the same result. As such, Defendant argued that the laws of the two jurisdictions are substantially similar and "there is no conflict of result" between Florida or Bahamian law with respect to the issues presented in this motion, and that Florida law should thus apply. Plaintiff agreed to the application of Florida law. After conducting a choice of law analysis, the Court agreed that it is appropriate to apply Florida law to the questions before the Court in Defendant's Motion for Summary Judgment due to the lack of true conflict between Florida and Bahamian law as to the applicable questions.

Now, Defendant is addressing the law that should be applied to the damages sought by Plaintiff, as opposed to questions of liability, in this case. The Court must follow the choice of law rules of the state in which it sits. See Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938). A conflict of law exists when two or more states have legitimate interests in a particular set of facts in litigation, and the laws of those states differ or would produce different results in the case. See Fioretti v. Massachusetts Gen. Life Ins. Co., 53 F.3d 1228, 1234 (11th Cir. 1995). The Court agrees that there is a conflict of law in this case with respect to damages because the laws of the various domiciles of the parties in this case and this forum provide different limitations upon recovery in an action for wrongful death. See Md. Courts and Judicial Proceedings Code Ann. § 3-904 (2001); Md. Courts and Judicial Proceedings Code Ann. § 11-108 (2002); N.C. Gen. Stat. § 28A-18-2 (2003); Fla. Stat. § 768.16 et seq. For example, Maryland caps non-economic damages at $500,000.00 pursuant to Md. Code Ann. § 11-108(b)(2)(i).

In tort law, Florida has adopted the "significant relationships test" of the Restatement (Second) of Conflict of Laws. See Chierchia v. Treasure Cay Services, 738 F. Supp. 1386, 1389 (S.D. Fla. 1990) ("For tort law, Florida has adopted the `significant relationships test,' of the Restatement (Second) of Conflict of Laws §§ 145-146."); Bishop v. Florida Speciality Paint Co., 389 So.2d 999, 1001 (Fla. 1980) ("Instead of clinging to the traditional lex loci delicti rule, we now adopt the `significant relationships test' as set forth in the Restatement."). The "significant relationship" test requires the Court to determine controversies in accordance with the law of the jurisdiction with the "most significant relationship to the occurrence and the parties under the principles stated" in § 6 of the Restatement. Bishop, 389 So.2d at 1001.

Section 178 of the Restatement, which states the specific rule for wrongful death actions, provides that the law selected by an application of the rule of § 175 determines the measure of damages in an action for wrongful death. Section 175 in turn states that "the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship . . . to the occurrence and the parties, in which event the local law of the other state will be applied." Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272, 1297 (11th Cir. 1999). The Eleventh Circuit has noted that "[t]his preference for the state in which the injury occurred all but disappears, however, when the conflict of laws involves the issue of damages in wrongful death actions." Id. "[T]he fact that conduct leading to a wrongful death — as well as to the death itself — occurred in a certain jurisdiction does not, by virtue of these contacts alone, create a significant interest for that jurisdiction to apply its damages law to a subsequent lawsuit." Id. "Courts instead are instructed to refer to the general conflict-of-laws principles set forth in section 6 [of the Restatement], as well as principles specific to tort claims set forth in section 145, to identify jurisdictions that possess the greatest interest in applying their compensatory damages schemes." Id. As a result, "no rigid rules exist for resolving conflict-of-laws problems in wrongful death actions governed by the Restatement, requiring instead an examination of the interests created by the facts and circumstances of each case." Id. (citing Judge v. American Motors Corp., 908 F.2d 1565, 1568 (11 th Cir. 1990)). The Court agrees that because no party is advocating that the law of the Bahamas, where the underlying incident occurred, be applied to damages in this case, reference to the general conflict of law principles set forth in § 6 of the Restatement and the principles specific to tort claims set forth in § 145 of the Restatement should be used to identify the jurisdictions that possess the greatest interest in applying their compensatory damages schemes.

The Restatement of Conflict of Laws § 145 delineates the factors to be taken into account in determining whether, pursuant to § 146, a jurisdiction has a more significant relationship to the rights of the parties than another. Those factors are as follows: (a) the place where the injury occurred, (b) the place of the conduct causing the injury, (c) the residence of the various parties, and (d) the place where the relationship between the parties is centered. In this case, there are three jurisdictions to consider given that no party is arguing that the laws of the Bahamas be applied to the damages claims: Maryland, where Decedent lived; North Carolina, where Plaintiff lives; and Florida, the forum state and where Plaintiff argues Defendant has significant ties and business interests. See id. at 1297. While Defendant's principal place of business is not in Florida, the Eleventh Circuit has concluded that if "the authors [of the Restatement] had intended to limit § 145(2)(c) to a corporation's `principal place of business,' they would have done so expressly." Id. at 1298 ("[W]e cannot agree that a jurisdiction in which the party has sizeable business activities . . . has no relationship with the litigation for purposes of section 145(2)."). In this case, the Court concludes that Defendant has business ties and interests in the State of Florida, including its North American sales office sufficient for the purposes of analysis under the Restatement.

Once a court has identified the interested sovereigns pursuant to the criteria enumerated in § 145, it must weigh the interests of each sovereign in accordance with the factors described in § 6(2) of the Restatement: (a) the needs of interstate and international systems; (b) the relevant policies of the forum; (c) the relevant policies of other interested states and relative interests of those states in the determination of the particular issue; (d) the protection of justified expectations; (e) the basic policies underlying the particular field of law; (f) certainty, predictability and uniformity of result; (g) ease in determination and application of the law to be applied. See Bishop, 389 So.2d at 1001; Cortes, 177 F.3d at 1298-99 ("To discharge this task, we cannot simply add up the factors delineated in section 145(2) and then apply the law of the jurisdiction with the greatest numerical total. . . . Rather, we must, as mandated by section 145(1), turn to the factors delineated in section 6 to determine which sovereign has the most significant contact.") (citing Judge, 908 F.2d at 1569).

While the Court will consider all of the factors enumerated in § 6(2), the Eleventh Circuit has stated that a §§ 6(2) analysis for wrongful death claims turns on the balance of competing interests contemplated by § 6(2)(b) and (c): the relevant policies of the forum state and the relevant policies of other interested states. Cortes, 177 F.3d at 1299 ("We observed in Judge that the section 6(2) analysis for wrongful death claims `turns in large part on the balance of competing interests contemplated by sections 6(2)(b) and 6(2)(c)."). Generally, "the state whose [policy] interests are most deeply affected should have its local law applied." Judge, 908 F.2d at 1570 (citation omitted).

The Eleventh Circuit addressed a similar choice of law question relating to damages in Cortes. In that case, the Eleventh Circuit considered whether Florida or Colombian law should apply to the damages claims in a case where a Colombian domiciliary was killed in an air crash in Colombia. The representatives of the decedent's estate, who were her parents, were Colombian. While Defendant argued that the law of the decedent's domicile should govern, the Eleventh Circuit disagreed finding that Florida law should apply to the damages issues. See Cortes, 177 F.3d at 1303 ("We conclude that the district court correctly determined that Florida law governed the compensatory damages to be awarded to Piamba Cortes."). While Colombian law imposed a restrictive damages cap on non-economic damages, the Cortes court determined that those damages caps were to protect domiciliary defendants from what Colombia considered excessive damages awards. See id. at 1300 ("No Colombian domiciliaries are named as defendants, and the general rule in this circuit is that a limit on recovery should not be applied when there is no domiciliary defendant because it advances no policy behind the limitation.") (citation and internal quotation marks omitted). In addition, the court determined that the primary purpose underlying Florida's compensatory damages scheme was to shift losses from a wrongful death to the wrongdoer and that any damages should not pose an excessive and unfair burden upon domiciliary defendants. See id. (citing Fla. Stat. § 768.74 (conferring discretion to courts to review damages awards to ensure they are neither excessive nor inadequate)). The Cortes court determined that these policies would be furthered if Florida law were applied to the question of damages. See id. at 1301 (while noting that there were no Florida domiciliaries identified by the plaintiff who possessed a claim under Florida law in the case, the Eleventh Circuit stated that "Florida nonetheless retains an interest in ensuring that a compensatory damages award against its own domiciliary defendants is not excessive.").

In this case, Maryland is the only state that has a non-economic damages cap. Similar to the situation in the Cortes case, however, Defendant is neither a domiciliary nor a resident of Maryland. Thus, the Court concludes that applying Maryland's cap to non-economic damages would not further Maryland's policy of protecting domiciliary defendants. See id. at 1303 ("Although Colombia possesses an interest in applying its compensatory damages scheme to the claims of Colombian domiciliaries on behalf of a Colombian decedent, the absence of a Colombian defendant who would benefit from Colombia's more restrictive damages scheme renders these interests less compelling."). As noted above, the Eleventh Circuit has stated that a limit on recovery should not be applied when there is no domiciliary defendant because it advances no policy behind the limitation. See Foster v. United States, 768 F.2d 1278, 1283 (11th Cir. 1985) ("[A] limit on recovery should not be applied when there is no domiciliary defendant because it advances no policy behind the limitation."). While Defendant argues that Maryland also has an interest in providing uniform and predictable levels of recovery for the estates of Maryland residents, the Court concludes that applying Florida law, which seeks to shift losses from a wrongful death from the decedent's survivors to the wrongdoer while ensuring that damages awards are neither excessive nor unfair, will not contravene Maryland or North Carolina public policy. Moreover, while Defendant does not have its principal place of business in Florida, Defendant does have a significant presence and interest in Florida, including its North American sales office.

In addition, the Court notes that the parties have stipulated to the application of Florida law to the issues of liability in this case. While the Court makes a separate choice of law determination as to each issue under consideration under Florida law, the Court concludes that on balance promoting the consistency of result in this case is another factor militating towards the application of Florida law to the damages issues. The Court concludes that applying Florida law to the damages issues would promote the certainty, predictability, and uniformity of result in this case. In addition, consideration of the ease in determination and application of the law to be applied to this case provides further support to the Court's conclusion that Florida law is the most appropriate law to be applied to the damages claims. These are all factors to be considered by the Court in making its choice of law determination under both the Restatement and Florida law. See Restatement (Second) of Conflict of Laws §§ 6, 145-146; Bishop v. Florida Speciality Paint Co., 389 So.2d 999, 1001 (Fla. 1980). Given the circumstances of this case and upon consideration of the factors enumerated in the Restatement and considered by the Eleventh Circuit, the Court concludes that an overall balancing of relevant factors tips in favor of applying Florida law to the damages issues in this case.

Finally, the Court notes its concern that a decision to apply Florida law to the damages claims at this stage of the litigation would prejudice Plaintiff. In the November 15, 2002 Joint Pre-Trial Stipulation, Defendant stipulated to the application of Florida law to the issues of damages in this case. See Nov. 15, 2002 Joint Pre-Trial Stipulation, section 7 ("Florida law applies as to issues of agency, liability, and damages."). In the March 14, 2003 Amended Joint Pre-Trial Stipulation, which was filed after the Court denied Defendant's Motion for Summary Judgment, Defendant rescinded its prior stipulation and for the first time raised the issue whether damages should be determined in accordance with the law of either Maryland or North Carolina, rather than Florida. This occurred just days after the Court's addressed Defendant's contention in its Motion for Summary Judgment that Florida law should apply to the liability issues in this case. Plaintiff states that had it known Defendant was going to seek the application of Maryland or North Carolina law to damages at this late stage of the litigation, Plaintiff would have examined her Complaint, which was plead in accordance with the Florida Wrongful Death Act, for compliance with Maryland and North Carolina statutes. The application of Maryland or North Carolina law at this stage of the litigation may preclude some of Plaintiff's damages claims. At the same time, the Court notes that Plaintiff has not had the opportunity to research additional claims for damages that she may be entitled to under Maryland or North Carolina law. Because of the Court's ruling on this issue, the need to conduct such additional research is now moot.

WHEREFORE, upon consideration of Florida's choice of law rules, Florida case law, the factors enumerated under the Restatement (Second) of Conflict of Laws, Eleventh Circuit case law, the record in this case, and possible prejudice to Plaintiff, the Court concludes and ORDERS that Florida law shall apply to the damages claims in this case as well as to issues of liability. Defendant's motion to apply choice of law principles to the issue of damages [D.E.#170] is DENIED to the extent Defendant requests that Maryland law be applied to the claimed damages in this case.

II. OTHER PENDING MOTIONS

Upon consideration of these motions, the Court concludes and ORDERS as follows:

1. Defendant's motion for leave to amend affirmative defense [D.E.#182] is GRANTED, although the Court has now ruled that Florida law shall apply on damages.

2. The Court RESERVES ruling on Defendant's motion in limine to exclude opinions of Plaintiff's witness, Mark McCulloh and Plaintiff's motion in limine regarding testimony of defense expert David Wells [D.E.#s 130 and 167], subject to the Court conducting a hearing pursuant to Fed.R.Evid. 104 during the trial and prior to the testimony of either expert. Neither party shall refer to "industry standards" during their respective opening statements. Both parties are directed to the Court's comments of record relative to these motions.

3. The Court RESERVES ruling on Defendant's motion to disqualify Plaintiff's expert witness, Reginald H. Lobosky, pending a Rule 104 hearing prior to his testimony. Based on the Court's order that Florida law applies to liability and damages, the Court will not permit any expert opinion on Bahamian law relative to those matters. Accordingly, Plaintiff has announced that she has no intention of calling Mr. Lobosky in her case-in-chief, but reserves the right to call him on rebuttal. Again, the Court directs the parties to its comments of record, particularly the need for further briefing and analysis as to the application of the Bahamian Ethical Code to the issues raised by the Defendant in its motion.

4. Plaintiff's motion in limine to strike records of medical examiner [D.E. #132], specifically Exhibit E to her motion, is GRANTED in that the Defendant has failed to proffer a sufficient foundation for its admission. Furthermore, given the affidavit of Wm. Lee Hearn, Exhibit E lacks sufficient trustworthiness to be admissible under any hearsay exception. Notwithstanding, the Defendant has proffered that it will produce direct testimony and documentation to substantiate the alcohol content of the decedent's blood shortly after her death. The Defendant shall supplement its exhibit and witness list, including a description of the testimony, no later than July 1st, 2003. Thereafter, Plaintiff may take additional discovery relative to the matter and amend her exhibit and witness lists if necessary for rebuttal purposes. In any event, Plaintiff may depose any new Bahamian witness designated by Plaintiff prior to his or her testimony at trial.

5. Defendant's motion in limine [D.E. #168] requests the Court to narrow the issues at trial by ruling on the items specified in Paragraph 3 of the motion. At oral argument, the Defendant withdrew items 3b and 3m. The Court RESERVES ruling on items 3a, 3f, 3h, 3j, 3k, 3I, 3n, 3p, 3q, 3r and 3s, subject to its comments of record relative to each item. The Court GRANTS the Defendant's motion as to items 3c, 3d 3e and 3h. Plaintiff does not contest these items.

ORDERED IN CHAMBERS