UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1397

MABEL S. JONES, individually and as the next best friend and 

personal representative of the estate of Prince Carmen 

Jones, Jr., 

 Plaintiff - Appellant, 

 and 

CANDACE JACKSON, 

 Intervenor – Plaintiff, 

 v. 

PRINCE GEORGE’S COUNTY, MARYLAND; CARLTON B. JONES, Officer, 

Prince George’s County Police Department in both his 

official and individual capacities, 

 Defendants – Appellees, 

 and 

ALEXANDRE BAILEY; JOHN S. FARRELL, 

 Defendants, 

 v. 

INOVA HEALTH SYSTEM FOUNDATION; ROBERT F. HORAN; J. THOMAS 

MANGER; PRINCE CARMEN JONES, SR., 

 Movants. 

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Alexander Williams, Jr., District 

Judge. (8:04-cv-03044-AW) 
Argued: September 25, 2009 Decided: December 8, 2009

Before WILKINSON and DUNCAN, Circuit Judges, and Damon J. KEITH, 

Senior Circuit Judge of the United States Court of Appeals for 

the Sixth Circuit, sitting by designation. 

Affirmed by unpublished per curiam opinion. 

ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER, 

Washington, D.C., for Appellant. Jay Creech, Shady Side, 

Maryland, for Appellees. ON BRIEF: Ted Williams, Washington, 

D.C., for Appellant. Timothy W. Fitzmaurice, Upper Marlboro, 

Maryland, for Appellees. 

Unpublished opinions are not binding precedent in this circuit.

2 
3 

PER CURIAM: 

 This appeal arises from a district court order granting a 

defendant’s motion for summary judgment in an action brought 

pursuant to 42 U.S.C. § 1983; the Maryland Survival Act, Md. 

Code Ann., Est. & Trusts § 7-401(y); and the Virginia Wrongful 

Death Act, Va. Code Ann. § 8.01-50. The district court held 

that under state law, Appellant Mabel S. Jones (“Appellant”), as 

personal representative of her son’s estate, is barred from 

recovering under the Maryland Survival Act when the decedent’s 

father and the guardian of the decedent’s daughter settled a 

claim under the Virginia Wrongful Death Act for the same 

incident. For the reasons that follow, we affirm. 

I. 

On September 1, 2000, at around 1:00 a.m., Prince Carmen 

Jones, Jr. (“Decedent”) was driving north on Georgia Avenue in 

Washington, D.C. Two members of the Prince George’s County 

Police Department, Corporal Carlton B. Jones and Sergeant 

Alexandre Bailey, followed Decedent’s vehicle because they 

believed it belonged to Darryl Gilchrest, a suspect in a 

criminal investigation. They followed Decedent from D.C. into 

Prince George’s County, Maryland; back through D.C.; and then 

into Fairfax County, Virginia. Decedent resided in Maryland but 
4 

 

was driving to Virginia to visit his fiancée Candace Jackson. 

After Decedent pulled into a driveway, Corporal Jones pulled up 

behind him and exited his vehicle. When Decedent attempted to 

flee, Corporal Jones fired sixteen shots at him. Decedent was 

hit by five bullets in the back and one in the arm. He died a 

short time later in Virginia.1 

 On December 5, 2000, Appellant brought a seven-count 

complaint against Corporal Jones, Sergeant Bailey, Prince 

George’s County (“County”), and Chief of Police John S. Farrell 

(collectively, “Defendants”) in the United States District Court 

for the District of Columbia. The complaint alleged a 

constitutional violation under 42 U.S.C. § 1983, and various 

tort claims under the Maryland Survival Act and the Virginia 

Wrongful Death Act, including assault and battery, negligent 

training and supervision, and intentional and negligent 

infliction of emotional distress. On March 22, 2004, the case 

was transferred to the United States District Court for the 

District of Maryland. A year later, on April 28, 2005, the 

district court granted summary judgment to Chief Farrell, 

1

 The details of the events leading up to the Decedent’s 

death are set forth in greater detail in Jones v. Prince 

George’s County (“Jones I”), 835 A.2d 632, 635 (Md. 2003) and 

Jones v. Jones (“Jones II”), 915 A.2d 471, 474-75 (Md. Ct. Spec. 

App. 2007). 
5 

 

Sergeant Bailey, and the County. Only Appellant’s claims 

against Corporal Jones remained. 

 While Appellant’s lawsuit was pending, Prince Carmen Jones 

Sr. (“Jones Sr.”), the Decedent’s father, and Candace Jackson, 

as guardian of Decedent’s daughter Nina Jones (“Nina”), brought 

a Maryland Wrongful Death Act, Md. Code Ann., Cts. & Jud. Proc. 

§ 3-904, action in the Circuit Court for Prince George’s County 

against Defendants. Soon after, the court allowed Appellant to 

intervene under Maryland Rule 15-1001.2 On January 9, 2006, a 

2

 Thereafter, Appellant filed a motion for summary judgment, 

asserting that, because the death occurred in Virginia, the 

Virginia Wrongful Death Act controlled and, under that act, the 

personal representative is the only person with standing to 

bring suit. The circuit court granted summary judgment on that 

ground and dismissed the entire case. Jackson and Jones Sr. 

noted an appeal and the court of appeals issued a writ of 

certiorari. The court held, inter alia, that the plain language 

of the Maryland Wrongful Death Act provides that, when the 

wrongful act occurs in another state, the substantive law of 

that state applies; the circuit court therefore erred in ruling 

that the place determines as a matter of substance which state’s 

wrongful death statute applies. Jones I, 837 A.2d 638-39. The 

court observed that the allegations against the defendants 

included some wrongful acts in Maryland and others in Virginia. 

Id. at 639. 

 The court further held that the issue of who has standing 

to file a wrongful death action in Maryland is procedural, not 

substantive, and thus is governed by the law of the forum state, 

Maryland. Id. at 640. In addition, the court ruled that, 

because neither the Maryland Wrongful Death Act nor the Maryland 

Rules specify who may properly file a wrongful death action in 

Maryland when the wrongful acts alleged to have caused the death 

occurred, at least in part, outside of Maryland, common law 

standing principles applied. Id. at 644. Under those 

(Continued) 
6 

 

jury found liability and awarded damages to the plaintiffs. 

Jackson was awarded $2.5 million, Appellant was awarded $1 

million, and Jones Sr. was awarded $200,000.3 Thereafter, 

Corporal Jones and the County moved for judgment notwithstanding 

the verdict, for a new trial, or to revise the judgment. The 

trial court granted the motion in part, striking the judgment in 

favor of Appellant and Jones Sr. because neither party was a 

permissible beneficiary under the Virginia Wrongful Death Act. 

 Appellant and Jones Sr. appealed the trial court’s 

decision. Before the appeal came to fruition, however, 

Defendants settled with Jones Sr. and Jackson.4 Pursuant to that 

principles, the court found that the plaintiffs and intervenor 

were aggrieved people with standing to sue. Id. Accordingly, 

the court reversed the grant of summary judgment and remanded 

the case for further proceedings. Id. at 646. 

3

 Soon after the jury trial, on January 20, 2006, Appellant 

voluntarily dismissed her wrongful death claim in the Maryland 

district court matter, explaining: 

Nina Jones is the exclusive beneficiary in plaintiff’s 

Virginia Wrongful Death Action and she is only 

entitled to one recovery as a matter of law. 

 . . . Because a wrongful death claim has been 

fully adjudicated on her behalf, it would be contrary 

to law and inefficient to continue parallel litigation 

on this issue . . . . 

J.A. 32. 

4

 Nevertheless, the Court of Special Appeals of Maryland 

issued an opinion. Jones II, 915 A.2d 471. In that opinion, 

(Continued) 
7 

 

settlement, which the Circuit Court for Prince George’s County 

approved on September 27, 2006, Jones Sr. would receive 

$200,000, and Jackson would receive $2.3 million for Nina’s 

benefit. 

 Once the settlement was approved, on September 7, 2007, 

Corporal Jones filed a motion for summary judgment in 

Appellant’s earlier Maryland lawsuit. Corporal Jones argued 

that under Virginia law, Appellant was barred from recovering 

under a survival statute when the appropriate beneficiary had 

already recovered under the Virginia Wrongful Death Act. By 

contrast, Appellant argued that her son’s death gave rise to two 

separate and distinct claims--one under the Virginia Wrongful 

Death Act and one under the Maryland Survival Act--that serve 

the court affirmed the trial court’s judgment, holding that it 

properly struck the verdicts in favor of Jones Sr. and 

Appellant. Specifically, the court held that under the Maryland 

Wrongful Death Act, when the wrongful act that caused the death 

was committed in another state, the substantive law of that 

other state applies. Id. at 479. Finding the wrongful act by 

Corporal Jones was committed in Virginia, the court held the 

Virginia Wrongful Death Act applied. Id. at 478-79. The court 

noted that the right to recover damages for wrongful death, 

unlike the issue of standing to file a wrongful death action 

addressed in Jones I, is a matter of substantive law, not 

procedural law. The Virginia Wrongful Death Act thus determined 

the permissible beneficiaries. Id. Under the Virginia Wrongful 

Death Act, a parent of an adult child decedent is not a 

permissible beneficiary if the adult child decedent is survived 

by a minor child. Id. at 479. Accordingly, the court found 

that Appellant did not have a substantive right of recovery for 

wrongful death under Virginia law. Id.
8 

different purposes and accomplish entirely different results. 

In essence, she said the disposition of one claim could not bar 

the other. 

 On April 2, 2008, the district court granted Corporal 

Jones’s motion for summary judgment, reasoning that “Virginia’s 

wrongful death statute, and the body of case law surrounding it, 

explicitly and unequivocally establish that there can only be 

one recovery for the same injury.” J.A. 72 (emphasis omitted). 

That same day, Appellant appealed from this order. 

II. 

We first determine which matters are properly before us in 

this appeal. Appellant’s notice of appeal explicitly states 

that Appellant is appealing “to the United States Court of 

Appeals for the Fourth Circuit from the Court’s Order granting 

Defendants’ Motion for Summary Judgment entered on the 2nd day of 

April, 2008.” J.A. 139 (emphasis added). In her brief and at 

oral argument, however, Appellant also challenged the district 

court’s April 28, 2005, order granting summary judgment to all 

defendants but Corporal Jones.5 Specifically, Appellant argues 

 

(Continued) 

5

 The April 28, 2005, order has been appealed by the parties 

once before. However, those appeals were dismissed before the 

issues reached this court. On May 16, 2005, Corporal Jones 

filed a notice of appeal challenging the district court’s ruling 
9 

that no basis existed for dismissing her § 1983 claims against 

the County. 

 Federal Rule of Appellate Procedure 3(c)(1)(B) provides 

that the notice of appeal must “designate the judgment, order, 

or part thereof being appealed.” Generally, the requirements of 

Rule 3 are liberally construed, see Torres v. Oakland Scavenger 

Co., 487 U.S. 312, 316 (1988), and an appeal from a final 

judgment brings into question all previous rulings leading to 

the judgment, see McLaurin v. Fischer, 768 F.2d 98, 101 (6th 

Cir. 1985). That said, “[s]ubjecting Rule 3 to a liberal 

construction does not . . . excuse compliance with the rule.” 

Nolan v. U.S. Dep’t of Justice, 973 F.2d 843, 846 (10th Cir. 

1992). Because the dictates of Rule 3 are jurisdictional, each 

requirement must be satisfied as a prerequisite to appellate 

review. Smith v. Barry, 502 U.S. 244, 248 (1992). Where the 

notice of appeal designates specific rulings being appealed, 

 

on the issue of qualified immunity. On May 31, 2005, Appellant 

filed a cross-appeal, challenging the district court’s dismissal 

of her claims against the County. On September 2, 2005, this 

court granted Appellant’s motion to dismiss Corporal Jones’ 

appeal, and pursuant to Appellant’s motion to withdraw her 

appeal to permit the case to move forward in district court, 

Appellant’s cross-appeal was also dismissed. In addition, these 

appeals were not interlocutory appeals, as Appellant argued, 

because the April 28th, 2005, order was not of a nature to be 

“‘effectively unreviewable on appeal from final judgment.’” 

Lauro Lines S.R.V. v. Chasser, 490 U.S. 495, 498 (1989) (quoting 

Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 431 (1985)). 
10 

this court has no jurisdiction to review other judgments or 

issues which are not expressly referenced or even impliedly 

intended for appeal. See Foster v. Tandy Corp., No. 86-1726, 

1987 WL 46367, at *8 (4th Cir. Sept. 16, 1987) (entry of 

directed verdict not appealed when notice of appeal addressed 

only the grant of a judgment notwithstanding the verdict); 

Gunther v. E.I. Du Pont De Nemours & Co., 255 F.2d 710, 717 (4th 

Cir. 1958) (“[S]ince the jurisdiction of the appellate court is 

determined by the timeliness and specific terms of the notice, 

it cannot be modified to cover a judgment not included by any 

reasonable interpretation . . . .”). 

Here, the notice of appeal explicitly referenced the 

district court’s April 2, 2008, order but failed to designate 

the April 28, 2005, order. Appellant argues her intent to 

appeal that order was obvious because she named the County as an 

appellee. “While the intent to appeal may be obvious from the 

procedural history of a case or from the appeal information form 

completed by an appellant,” no such intent is obvious here. 

Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1059 (8th 

Cir. 2002). Appellant’s appeal information form does not 

mention the April 28, 2005, order, and the issues resolved in 

that order were not revisited or addressed in the April 2, 2008, 

order. The County easily could have assumed that Appellant 
11 

would not appeal the April 28, 2005, order when she failed to 

include that order in her notice of appeal and in the appeal 

information form. Moreover, the April 28, 2005, order had 

already been appealed once before, and nothing in the record 

indicates Appellant intended to appeal that order again. We 

thus lack jurisdiction to review the district court’s April 28, 

2005, order, and turn our attention to the April 2, 2008, order, 

which is all that is before us for review. 

III. 

 Having determined our scope of review, we now turn to 

Appellant’s arguments regarding the April 2, 2008, order. As 

noted above, in that order, the district court dismissed 

Appellant’s remaining claims against Corporal Jones, finding 

Virginia law barred Appellant from recovering under the Maryland 

Survival Act. On appeal, Appellant challenges the district 

court’s application of Virginia law to her Maryland Survival Act 

claim. First, she avers that Maryland’s survival statute 

differs from the Virginia Wrongful Death Act because it is 

conceptually designed to redress the interests of the decedent’s 

estate, whereas the Virginia Wrongful Death Act is intended to 

redress the interests of designated beneficiaries. Second, she 

contends that the present case makes out a sufficiently clear 
12 

and strong public policy in favor of allowing her Maryland 

Survival Act claim to proceed. Finally, she posits that 

Corporal Jones waived his right to assert that Virginia law bars 

the present action by failing to timely assert such an argument 

as an affirmative defense in his answer to her complaint. These 

arguments are discussed separately below. 

A. 

 We first consider the argument that Virginia and Maryland 

law serve entirely different functions, such that Maryland 

should not apply Virginia’s law to this case. Although we are 

sympathetic to Appellant’s argument, we find that her argument 

does not fairly reflect Maryland’s own approach to choice of law 

analysis. In Maryland, courts adhere to the traditional lex 

loci delicti rule for torts, which provides that the state in 

which the harm occurred is the state that provides the 

substantive cause of action to the injured party. Philip Morris 

Inc. v. Angeletti, 752 A.2d 200, 230 (Md. 2000). Thus, even if 

Maryland would have an interest in applying its own substantive 

law, Maryland’s choice of law principles compel the application 

of Virginia law in this case. Klaxon Co. v. Stentor Elec. Mfg. 

Co., 313 U.S. 487, 496 (1941). Recognizing that Decedent’s 
13 

shooting and death occurred in Virginia, the district court 

correctly concluded that Virginia’s substantive law controls. 

 Virginia recognizes a survival action for injuries 

sustained by the victim. See Va. Code Ann. § 8.01-25. However, 

unlike the law of Maryland, the law of Virginia dictates that a 

survival action brought in Virginia converts to a wrongful death 

action if the victim dies from that particular injury or 

wrongful act. See Va. Code Ann. §§ 8.01-25, 8.01-56; see also

El-Meswari v. Wash. Gas Light Co., 785 F.2d 483, 490 (4th Cir. 

1986) (“[Section] 8.01-25 defers to the wrongful death statute 

as the exclusive statement of the grievances that Virginia will 

recognize when a tort victim dies of her injuries.”); Wright v. 

Eli Lilly and Co., 65 Va. Cir. 485, 495 (Va. Cir. Ct. 2004) 

(“[I]f the [decedent’s] death is due to the same injury which is 

the subject of a pending personal injury action, the pending 

action is converted to one for wrongful death.”). Consequently, 

under Virginia law, “a person may not recover for the same 

injury under the survival statute and the wrongful death 

statute” if that injury or wrongful act resulted in the victim’s 

death. Hendrix v. Daugherty, 457 S.E.2d 71, 75 (Va. 1995); see 

also Va. Code Ann. § 8.01-56 (explaining there can “be but one 

recovery for the same injury”). 
14 

 Here, because Nina has already recovered under the Virginia 

Wrongful Death Act in the state proceeding, Appellant cannot 

recover under the Maryland Survival Act.6 Under Virginia law, 

negligent conduct by one person causing the death of another 

gives rise to only one cause of action. This cause of action is 

provided in lieu of any other form of recovery against the 

wrongdoer based on the same wrongfully caused death. In 

Virginia, therefore, a judgment under the Virginia Wrongful 

Death Act is conclusive between the parties as to all rights 

arising from the operative facts. See Semler v. Psychiatric 

Inst. of Wash. D.C., Inc., 575 F.2d 922, 931 (D.C. Cir. 1978). 

This must also be the effect of Nina’s recovery in the Circuit 

 6

 Appellant argues that Nina cannot be said to have 

recovered under the Virginia Wrongful Death Act because the 

state proceeding involved a Maryland wrongful death claim. 

Admittedly, Nina and Jones Sr. filed a claim for wrongful death 

in Maryland, and the Maryland Supreme Court in Jones I

determined that “the general Maryland choice of law principles 

concerning the right to bring an action disclose that, for the 

purposes of the wrongful death statute, this is a procedural 

issue governed by the law of [Maryland].” 835 A.2d at 640. 

Yet, by the same token, both Jones I and Jones II recognized 

that Virginia’s substantive law applied to conduct that occurred 

in Virginia, see Jones I, 835 A.2d at 639; Jones II, 915 A.2d at 

479, and the claims ultimately presented to the jury were all 

based upon conduct that occurred in Virginia exclusively, see

Jones II, 915 A.2d at 475. Thus, although procedurally the 

matter was brought under Maryland law, the “legal right to 

recover damages for the wrongful death of [the Decedent] [was] 

controlled by the Virginia Act.” Id. at 479. 
15 

Court of Prince George’s County.7 We therefore find no error in 

the district court’s conclusion that Virginia law bars Appellant 

from proceeding under the Maryland Survival Act.8

B. 

 We turn next to Appellant’s contention that this case 

presents a sufficiently clear and strong public policy to 

disregard the lex loci delicti doctrine in favor of allowing her 

 7

 Appellant insists that Nina did not recover damages 

pursuant to a court judgment but instead chose to settle her 

claims, and thus cannot be said to have recovered under the 

Virginia Wrongful Death Act. Nina obtained a settlement because 

she had a wrongful death claim, and as Jones II recognized, her 

legal right to recover was controlled by the Virginia Wrongful 

Death Act. 915 A.2d at 479. The parties reached their 

settlement knowing Virginia’s substantive law controlled, and, 

in that settlement, Nina agreed to “release any and all claims . 

. . [she was] entitled to bring on her own behalf,” including 

her wrongful death claim. J.A. 45. Accordingly, and contrary 

to Appellant’s assertions, Nina recovered under Virginia’s 

wrongful death statute in the state proceeding. 

8

 In reaching this conclusion, we do not decide whether the 

abatement of Appellant’s § 1983 claims based on Virginia state 

law is permissible--that is, whether Officer Jones’s conduct 

constitutes a clear deprivation of federal rights. We recognize 

that after Robertson v. Wegmann, 436 U.S. 584, 594 (1978), and 

Carlson v. Green, 446 U.S. 14, 24 (1980), it would appear that a 

federal rule of survival supersedes any state law requiring 

abatement when the acts of § 1983 defendants caused the death of 

the injured party. See, e.g., McFadden v. Sanchez, 710 F.2d 

907, 911 (2d Cir. 1983); O’Connor v. Several Unknown Corr. 

Officers, 523 F. Supp. 1345, 1348 (E.D. Va. 1981). We do not 

reach this issue here, however, because Appellant failed to 

raise it in her opening brief, and it is therefore waived. See, 

e.g., Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 191 n.1 (4th 

Cir. 2003). 
16 

Maryland Survival Act claim to proceed. It is true that “where 

an overriding issue of the forum’s public policy is at stake, 

such public policy may provide a sufficient basis for overruling 

the principle of lex loci delicti and applying forum law to the 

case.” Black v. Leatherwood Motor Coach Corp., 606 A.2d 295, 

303 (Md. Ct. Spec. App. 1992). Here, however, Appellant has not 

shown that the right to recover under both wrongful death and 

survival statutes is a matter of important public policy for 

Maryland, and without guidance from the Maryland courts, we will 

not presume such a policy exists. Given that no case law or 

statute has been shown to support the importance of this public 

policy, and given the few limited circumstances Maryland courts 

have been willing to depart from the lex loci delicti doctrine 

for public policy purposes, see, e.g., Hauch v. Connor, 453 A.2d 

1207, 1214 (Md. 1983), Powell v. Erb, 709 A.2d 1294, 1298 (Md. 

1998), and Lab. Corp. of Am. v. Hood, 911 A.2d 841, 849-50 (Md. 

2006),9 we find the district court did not err in adhering to the 

lex loci delicti doctrine. 

 9 Appellant’s reliance on Hauch, Powell and Hood is 

misplaced. Those are state law cases in which Maryland courts 

found particular matters of state policy, rooted in statute and 

case law, to present public policy sufficiently powerful to 

overwhelm lex loci delicti and require the application of local 

law. In the absence of any explanation why Maryland would find 

such a similarly powerful interest here, we will not presume the 

right to make such a determination on its behalf.
17 

C.

 Finally, we turn our attention to Appellant’s argument that 

Corporal Jones waived his right to assert the Virginia statutory 

bar to double recovery because he did not assert this 

affirmative defense in his answer to the complaint. See Fed. R. 

Civ. P. 8(c). We disagree. As Corporal Jones notes, there was 

no basis for raising Virginia’s statutory bar to double recovery 

until Nina recovered pursuant to the Virginia Wrongful Death Act 

in September 2006. See Ahmed v. Nat’l R.R. Passenger Corp. 

(Amtrak), No. 94-2438, 1995 WL 378599, at *3 (4th Cir. June 27, 

1995). Indeed, once the settlement in the state proceeding was 

approved, Corporal Jones immediately notified the trial court of 

the issue at a telephone conference held on October 31, 2006. 

Appellant thus cannot show Corporal Jones’s delay was 

accompanied by actual prejudice, bad faith or futility. See, 

e.g., Defender Indus., Inc. v. Nw. Mut. Life Ins. Co., 938 F.2d 

502, 508 (4th Cir. 1991) (mere delay, when unaccompanied by 

actual prejudice, bad faith, or futility, does not justify 

denial of leave to amend answer to assert affirmative defense), 

cert. denied, 113 S. Ct. 3038 (1993). 
18 

IV. 

 For the foregoing reasons, the judgment of the district 

court is 

AFFIRMED.